IBRARY THE UNIVERSITY OF CAL [FORNIA LOS ANGELES SCHOOL OF LAW OFFICE ^LlSTD DUTIES NOTAEIES PUBLIC. A TREATISE ON THE LAW RELATING TO THE OFFICE ^JSTD DUTIES NOTAKIES PUBLIC Throughout the United States, With Forms of Affidavits, Acknowledgments, Conveyances, Depo- sitions, Protests, and Legal Instruments. * BY JOHN PROFFATT, LL.B. Author of Curiosities and Law of Wills, a Treatise on Trial by Jury, etc. SAN FRANCISCO: SUMNER WHITNEY & COMPANY NEW YORK : KURD & HOUGHTON. 1877. Copyright 1877, BY JOHN PROFFATT. T P94Z8* IST? RIVERSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. PREFACE. \ If I would justify the existence of this book, I could point to the fact that there is no other covering the same ground or supply- ing the same information. While it may be an advantage to an author, as far as novelty is concerned, to be the first to treat of a certain subject, it devolves upon him, however, a weightier degree of care and responsibility in preparing, arranging, and developing in systematic order the topics of his treatise. Recognizing this duty in writing upon a new subject, the author has given the utmost attention to the systematic arrange- ment and connection of the various topics composing this treatise, and has been particularly careful to make the work easy of refer- ence and convenient for examination. But a book can hardly claim an excuse for its existence simply on the ground of novelty, or as being the pioneer in a new field. The author therefore does not claim recognition simply because it is the first on this general subject, but prefers to base its claims to notice on the ground of its practical utility, and its adaptation to the wants of those for whom it Avas written. It might appear, at first sight, impossible to treat of the duties and powers of Notaries in a general work adapted to various States ; but on examination and comparison of the statutes, it will be found that their duties and powers are more uniform in our several States than many would suspect. Thus a general treatise became prac- ticable, and the author found it possible to classify and arrange his subject from a general standpoint. Where, however, statutes have abridged or enlarged the powers of Notaries in any State, the author has not failed to draw attention thereto, giving reference to such statutes. The subjects embraced in this work comprise fully and specific- [iii] 735704 iv PREFACE. ally whatever pertains to the office of a Notary throughout the United States. The general duties of Notaries in this country are to take acknowledgment of deeds and other written instru- ments, to take affidavits and depositions, and to make protest of negotiable paper. Where Notai-ies are not permitted to exercise all of these, or where they are intrusted with additional powers, the fact has been duly noticed. The author has throughout relied upon authority, supporting his statements by citations of cases numbering at least one thous- and, so that the work may not only be a manual, but a reliable reference to all who have occasion to investigate any of the several subjects embraced in it. The subject of Acknowledgment of Deeds has been carefully treated, and the various decisions in reference thereto examined and digested ; and this chapter of the work, it is hoped, may prove not only advantageous to the practical conveyancer, but useful to the lawyer, as its propositions are fully supported by reference to well-considered cases. In the forms, there are given the style of acknowledgment for each State and Territory of. the Union; and forms for the private acknowledgment of married women are iven under the States where such are required. The chapter on Negotiable Paper has received the author's most careful attention, and it has been his aim to make it complete, practical, and useful to Notaries, to whom are confided the respon- sible duties of protesting "negotiable paper. He has, at the same time, endeavored to extend its utility by citations of cases, so that it may be of use to the practicing lawyer, and especially to bank- ers, who will readily find therein information which they will have occasion every day to seek. The chapter on Notarial Acts as Evidence the author believes will be found of great advantage, not only to notaries but to the legal profession. It is the first time that the cases on this subject have been brought together, classified, and digested. The import- ance of this subject demanded of the author the most careful attention and closest examination. It has therefore been his en- deavor to make it complete, reliable, and practical. PREFACE. V The forms will, perhaps, be the most useful and practical part of the work. They have been carefully selected and compared, and it is hoped will be found useful and reliable. Over two hundred of these forms are given, comprising forms of acknowledgment, dep- ositions, protests, ship protests, and forms of legal instruments in general use. It is believed, from the large number of Notaries throughout the United States, and the responsible duties they are called upon to discharge, that this work will supply them with that information which will enable them to discharge their duties safely to them- selves and efficiently to the public. The author now commits the work to their favor and patronage, and feels assured that, though it be the first attempt to compile a general treatise on the subject adapted to all sections of the country, it will not prove imperfect or unreliable, and, while not infallible, will be found free from any grave errors. J. P. SAST FRANCISCO, March, 1877. TABLE OF CONTENTS, CHAPTER I. HISTORY OF THE OFFICE. 1. Origin remote. 2. Under Roman law. 3. Function of the tabelliones. 4. Their acts not accorded full public authenticity. 5. "When acts obtained public recognition. 6. Notaries in England. 7. Mentioned in reign of Henry V. 8. Acts of a solemn nature executed before notaries. 9. Effect of Reformation as to office and duties. CHAPTER H. APPOINTMENT OF NOTARIES 10. Executive generally appoints. 11. In England, appointed by the Court of Faculties. 12. Appointment in the United States. 13. Qualifications for appointment. 14. Period for "which appointed. 15. Notaries in France. CHAPTER HI. OFFICE AND DUTIES. 16. In general. 17. The States in which notaries do not take acknowledgments. 18. In Louisiana. 19. May act as justice of the peace in some States. 20. May take depositions. 21. The power to take affidavits. 22. Jurisdiction. 23. Powers under Federal laws. 24. Under the bankrupt law. [Vii] viii TABLE OP CONTENTS. 25. Affidavits required by mining laws. 26. May take depositions in certain cases. 27. Duty as to keeping records. 28. Eequirements as to seal. CHAPTER IV. ACKNOWLEDGMENT OP DEEDS. 29. The effect of acknowledgment. 30. A literal compliance is not necessary. 31. Essential of certificate. 32. Identity of the party. 33. Identity, how proved. 34. As to the officer taking the acknowledgment. 35. Where the officer is a party in interest. 36. A deputy can take the acknowledgment. 37. Place where acknowledgment is made. 38. The necessity of a seal. 39. Certificate of probate of deeds. ACKNOWLEDGMENTS BY MARRIED -'WOMEN. 40. Theory of the law in respect to. 41. Requisites of the certificates. 42. As to the exact compliance with these requirements. 43. A private examination. 44. The wife must be made acquainted with contents. 45. The certificate must state a voluntary free act. 46. That she does not wish to retract her act. 47. Effect of the certificate against the wife. 48. Liability of notary for invalid acknowledgment. 49. Statutory provisions in reference to acknowledgments. CHAPTER V. AFFIDAVITS. . 60. Authority to take. 51. Definition of affidavit. 62. The venue. 53. Signature by affiant. 64. Oath and jurat. 55. Officer qualified to take. 66. As to the use of a seal. TABLE OF CONTENTS. CHAPTER VL DEPOSITIONS. 57. Notaries generally take depositions. 58. As to the caption. 59. Mistakes in names of parties in caption. 60. Should state at -whose request deposition taken. 61. The certificate generally. 62. Immaterial omissions in the certificate. 63. As to swearing the witness. 64. The identity of the witness. 65. Writing out the deposition. 66. The manner of writing out. 67. Language of the deposition. 68. Presence of parties. 69. Place where taken. 70. Powers of notaries in taking depositions. 71. Adjournment. 72. The deposition should be subscribed. 73. Certification of official character of officer. 74. Certain States require a certification. 75. Return of the deposition. CHAPTER VH. DUTIES RELATIVE TO NEGOTIABLE -PAPER. 76. Importance of duties in this respect. I. PRESENTMENT FOB ACCEPTMEOT. 77. What should be presented for acceptance. 78. By and of whom presentment made. 79. Place of presentment. 80. Mode of presentment. 81. Time within which presentment made. 82. Excuses for delay in presentment. 83. As regards the time of day. 84. Delay by agent more strictly regarded. 85. Acceptance, how given. 86. Statutory provisions regarding mode. 87. Time given drawee for acceptance. 88. A partial or conditional acceptance. 89. Acceptance supra protest. H. PRESENTMENT FOB PAYMENT. 90. By whom demand of payment made. 91. Demand by notary or clerk. 92. To whom presentment for payment made. 93. In case acceptor or maker be dead. TABLE OF CONTEXTS. 94. In case of partners. 95. When the acceptor or maker cannot be found. 96. Time of making presentment for payment. 97. As to the time of day for demand of payment. 98. Computation of time. 99. Rule regarding Sundays or holidays. 100. Place of presentment for payment. 101. Mode of demanding payment. 102. When paper payable at bank. 103. What will excuse failure to demand payment. ' in. PKOTEST. 104. Meaning and effect of. 105. What instruments should be protested. 106. Foreign promissory notes. 107. By whom the protest should be made. 108. Place of protest. 109. Formal preparation of protest. 110. Contents and particulars of protest. 111. Date of protest. 112. As to the place of presentment. 113. A presentment and demand must appear. 114. Other facts appearing by the certificate. 115. When protest unnecessary. IV. NOTICE OF PROTEST. 116. Who must have notice. 117. Manner of giving notice. 118. Form of the notice. 119. As to the description of the instrument. 120. The fact of dishonor. 121. As to notice of demand for payment from party. 122. The party who gives notice. 123. Notice by an agent. 124. The proper person to receive notice. 125. Notice when the parties reside in the same place. 126. Who may be regarded as living in the same place. 127. When noticeis personally served. 128. Notice parties residing in different places. 129. When parties reside temporarily in a place. 130. The place where notice should be sent. 131. Time within which notice should be given. 132. What hour next day is reasonable. 133. When holidays intervene. 134. A holder has a day to give notice to predecessor. 135. Liability of notary. CHAPTER VIII. NOTARIAL ACTS AS EVIDENCE. 136. Judicial notice taken of notary's seal. 137. How far notarial acts were evidence under common law. TABLE OF CONTEXTS, XI 138. A certificate of protest under the common law. 139. Statutory provisions in regard to certificate. 140. "\Vhat facts the certificate is evidence of. 141. Character of certificate as evidence. 142. Rebutting the certificate. 143. Notarial certificate, when made out of the State. 144. Sufficiency of notarial certificate. 145. Sufficiency as to residence. 146. As to the manner of giving notice. 147. When notice is sent by mail. 148. The certificate must show notice of dishonor. 149. Need not state at whose request notice was given. 150. Date of certificate. 151. Certificate should be under notarial seal. 152. Presumptions in favor of certificate. 153. Parol evidence affecting certificate. 154. Records of a deceased notary as evidence. CERTIFICATES OF ACKNOWLEDGMEJsT. 155. Character of evidence. 156. "When certificate may be impeached. 157. Can be impeached by fraud or collusion. CHAPTER IX. COMMISSIONERS -OF DEEDS. 158. Appointment. 159. Qualifications. 160. Number appointed. 161. Period for which appointed. 102. Powers. 163. Conditions to be complied with before exercising duties. 164. Fee paid for commission. 165. Requirements as to seal. 166. Authentication of acts. 167. Fees. 168. Appointments published. FORMS. Acknowledgments, - - Nos. 1- 95 Affidavits, - - " 96-110 Depositions, - " 111-146 Protest and Notice, - " 147-159 Deeds, - " 160-169 Mortgagers, - " 170-175 Assignment of Mortgage. - " 176-178 Satisfaction of Mortgage, - " 179-182 Chattel Mortgage, - ... . 184-186 x ji TABLE OF CONTENTS. Bill of Sale, - N f JJ Powers of Attorney, - * Agreement, - "901 Bond> " " 202-006 Assignments, - Notary's Bond, ------- Table of Cases, - Index, - Table of Fees, * "" - CHAPTER I. HISTORY OF THE OFFICE. 1. Origin remote. 2. Under Roman law. 3. Functions of the Tabelliones. 4. Their acts not accorded full public authenticity. 5. "When acts obtained public recognition. 6. Notaries in England. 7. Mentioned in reign of Henry V. 8. Acts of a solemn nature executed before notaries. 9. Effect of Reformation as to office and duties 1. Origin remote. Notaries as professional officers seem to have existed from a period of remote antiquity ; though their office and duties were not similar to those of the present day. It is easy to conceive that, at a time when but few were capable of putting their agreements in writing, a demand should have existed for a class of officers who might be able to embody and attest in a written instrument the terms of a contract. It is for this reason we so frequently meet with a class of of- ficers of this kind in all historical writings. Under various names we find them described in ancient history ; but the gen- eric word tScribce seems to be applicable to all such persons. 1 A French legal writer thus speaks of such public officers : " Ils furent nomme's Scribce, titre commun & tous ceux qui savent e'crire ; Cursores, ou Logographi, parcequ'ils ecrivaient aussi vite que la parole ; JVbtam, parcequ'ils e"crivaient par notes ; Tabularii, ou Tabelliones, parcequ'ils ecrivaient sur des tablettes ; ArgentariifiiOUT designer ceux qui ne recevaient les contrats que pour quelques negociations d'argent, telles que pret, depQt." 2 2. Under Roman law. A writer on Roman law asserts that the word Scriba was applied in ancient times to the clerk 1 A notary was anciently a scribe that only took notes or minutes, and made short draughts of writings, and other instruments, both public and private. Burn, Eccles. Law. Vol. 3, p. 1. - MerluvRepertoire de Juris. Vol. 21, p. 317. NOTARIES 1. [ 1 ] 2 HISTORY OF THE OFFICE. 3 of the Court, in contradistinction to the Exceptor, who was cm ployed by private persons. He says further that " the terms Notarius and Actuarius l designated a peculiar sort of employee ; but in the fourth and fifth centuries these terms changed, and the word Exceptor applied to every chancery, Notarius and Tribunus being reserved for the imperial chancery alone hence Tabellio came to signify what Notarius originally implied, namely, such persons as, prepared contracts, wills, and the like, without a public sanction, in the beginning of the sixteenth century." 2 It is under the term tdbellio we find the officer described in Roman law who most nearly corresponds to our modern notary. 3 These tabelliones assumed a position of great importance in Roman law as public officers. 3. Functions of the tabelliones. At first, these officers were occupied in a professional capacity, and had only a pub- lic character in so far as they offered their services to the public at large in drawing up instruments of agreement, legal docu- ments, and papers to be presented to the Courts of Law or other authorities of State. They established themselves in the most frequented and public resorts, where the public might more easily obtain their services in this capacity ; and even at the present day such officers are found in Italian cities, offering their services in a similar capacity. In Rome, their offices were found around the Agora and Forum, and hence the name under which they are sometimes designated, as tabelliones forenses* Their number and importance increased in such a degree that the State began to take a recognition of them, and to place them under a certain sort of supervision and regulation. They 1 n existait encore une autre espece d'officiers appel'.'s Actuarii. Chaque gou- verneur de province 'a vait aupres de lui un de ces 'derniers officiers pour recevoii en registrer et sceller les acts, tels quo les ('mancipations, adoptions, manumis- sions, et testamens." Merlin, Repertoire de Juris. Vol. 21, p. 318. a Colquhoun, Roman Law, Sec. 86. 8 They were called tabellio, probably from the tabula, or tables or plates cov- ered with wax, used by them instead of paper, See Corpus Juris Civilis, No- vell. 23 ; Du Cange, Glossarium ad Scriptores mediae et infimse Latin tatus, title Notarii and Tabellio. 4 Colquhoun, Roman Law, Sec. 2349, Novell. 44. 4 HISTORY OF THE OFFICE. 3 formed themselves into a sort of guild or company, under a pre- siding officer called a primicerius. And it appears' from a " Constitution " of Diocletian that a tariff of fees was established for them. 4. Their acts were not accorded full public authen- ticity in the Roman law ; it was still necessary that witnesses should be adduced to fully authenticate their notarial acts. But these acts commanded a certain degree of weight and public authenticity. There were three species of instruments to which the civil law attributed different degrees of credit. There were those specially designated public instruments, such as were deposited in the public archives set apart for that purpose Quce inpublico deponuntur in arckio aut Grammatophylacio ; l and these instruments proved themselves no witnesses were necessary to establish them as evidence. The writings which were accorded the next degree of credit, as evidence, were those taken by a notary in the presence of two witnesses. They were called instrumenta, or documenta publice celebrata, publice confecta, or scripturce forenses, because they were taken by notaries established about the Forum. The signature of the notary did not confer on them authority, and they were not given the credit of public instruments, for they did not prove themselves. Festimonium publicum non habebant. If the writing of the party were objected to, the notary must be called, and in case of his death, the attesting witnesses. 2 Such writings as were made without the intervention of a notary quce non habebant supplementum Tabellionis were required to be signed by the parties in the presence of three witnesses of credibility, and who were acquainted with the parties. 3 1 Dig. Lib. 48, Tit. 19, 1, 9, Sec. 6. 2 Burge, Colonial Law, Vol. 2, p. 700. The rule of the canon law was that one notary was equivalent to the testimony of two witnesses. Burn, Eccles. Law, Vol. 3, p. 2. 3 In the Civil Law, by the 73d Novel of Justinian, the mode of authenticating instruments is carefully pointed out, and the functions of the tabelliones in this respect provided for. In Cap. 2, it is provided : Sed et si quis aut mutui instrumentum, aut alterius cujuspiam faciat, et noluerit hoc in publico confeteri, quod et in deposito, de- finivimus, non ex ipso videatur credibile quod scributur super mutuo documen- 4 HISTORY OF THE OFFICE. 5 5. When acts obtained public recognition. Under the Roman law, it had been the custom for a judge, or public functionary, to have close by him a sort of secretary, generally denominated in later times a cancellarius, whence our word " chancellor " is derived. Such officers were also attached to the bishops, after Christianity was established in the empire. These officers discharged important functions in drawing up agree- ments, documents, and ' especially wills, which were very fre- quently drawn up before the bishops by their notaries, who, for a long period, on the continent, (as well as formerly in Scot- hind) had committed to them, as a peculiar and responsible part of their functions, the attestation of wills. 1 But, after the de- cadence of the secular jurisdiction of the bishops, and the limit- ation of their powers, the notary began to do on his own behalf what he formerly did as an attached ministerial officer; and be- fore him were executed and attested the most formal and solemn documents, such as wills, bonds, and important contracts. It was in the time of Charlemagne that the acts of notaries were first invested with public authority. In one of his capit- tum, nisi etiam testium habeat praesentium fide dignorum non minus trium; ut sine veniat et proprius subscriptionibus attestentur : sive alii quidam testifi- ccntur, quid prcescntibus cis confectum cstdocumentum; fidem causa ex utroque percipiat, etiam literatum examinatione penitus non repulsa, sed sola non sufnciente augmento autem testium confinnanda. In Cap. 5, it is pointed out how the tdbelliones shall cause instruments to be carefully drawn up: Sed et si instrumenta publice confecta suit: licet tabelli- onum habeant supplementum, adjiciatur et eis antequam compleantur (sicut dictum est) testuim ex scripto prresentia. 1 There is a remarkable instance given, in Stair's Decisions of the Scotch Court of Sessions, of the punishment of two notaries for improperly attesting a will. The case is reported as Stuart contra Smith, Nov. 20th, 1G80, at page 804, in the following quaint style : " It was further alledged that the defunct made a testament, and named Wardlaw executor and universal legatur to her, upon his liaviug maintained her many years. It being answered that the testament being subscribed by two nottara is false, the defunct never having given com- mand to subscribe it, nor heard it read, but that a blank paper was subscribed by the nottars, and was filled up, ex post facto, after the defunct' s death, which be ing found relevant, and the nottars and witnesses being examined, they did depose that the nottars subscribed a blank paper, and that the defunct was not sensible, nor able to speak, but that her hand was lifted by another to touch the pen, and that the testament was not filled up till some days after her death. The Lords found, not only the testament null, as being blank, but false and without war- rand, and deposed both the nottars, and gave warrand to the sheriff to send both their persons to Edinburgh, to be set upon the cock-stool, with a paper upon their brows." 6 HISTORY OF THE OFFICE. 5 ularics, in the year 803, he desired his deputies to nominate notaries in every place ; and in another, in the ye&r 805, he obliged every bishop, abbot, and count to have each a notary. 1 At a later time, it became the sole prerogative of kings to appoint notaries ; but, by degrees, the Pope of Home assumed the same right. 2 6. Notaries in England were known to have exercised their powers before the Norman Conquest. During the reign of Edward the Confessor, whilst Reinbald was chancellor, some manors and lands were granted by the king to the Abbot of Westminster, by a charter, the concluding clause of which shows it to have been written and attested by a notary named Swardius : " Notarius, ad vicem Eeinbaldi regiaB dignitatus cancellarii, hanc chartam scripsi et subscripsi," etc. 3 Notaries, as public officers, are alluded to in the petition, in Norman French, of the House of Commons of the twenty-first year of the reign of Edward III, thus : " Et sur ce furent as- signcz per my Engleterre certeines Gentz de prendre Procura- tours des Cardinalx, and d'autres Aliens, Subdelegatz and lour Notairs." 4 We find notaries named in the Act of Parliament, commonly known as the Statute of Provisors of the twenty-seventh Ed- ward III, St. 1, c. 1, passed in 1353, and in the Act of the six- teenth Richard II, Chap. 5, Sec. 2, in 1392, commonly called the Statute of Prasmunire. The Statutes of Prasmunire had for their object the abolition of the papal power in England, so far as it pretended to appoint to ecclesiastical benefices without the king's consent. 5 The statute declared certain pains and penal- 1 "Ce fut Charlemagne qui, le premier, investit les notaires du pouvoir d'im- primer u leur actes le caractere do 1'autorit' publique. II nomine dans ses cap- itulaires judices chartularii. Dans un de ces capitulaires do 1'an 803, il veut que ses envoy/s nomment dans chaque lieu des notaires; dans un autre de 1'an 805, il oblige les evcques, les abbes, les comtes, d'avoir chacun un notairfi." Merlin, Repertoire de Juris. Vol. 21, p. 317. 2 The Pope assumed the right to appoint to all faculties; and consequently, ag a notary was included in such, he assumed the right of appointment. In En- gland, he was deprived of this power by a statute in the reign of Henry VIII. See Edes v. Bishop of Oxford, Vaugh. 23. 8 4 Institutes, c. 8, p. 78. 4 Rot. Parl. 21 Edw. HI, p. 172. 5 See Barrington on Statutes, p. 279. 6 HISTORY OF THE OFFICE. 7-8 ties against parties who should be concerned in any proceeding of this kind, in defiance of the king's authority, and declared that all " they, their notaries, procurators, abettors, f autors, and counsellors " should suffer certain penalties. 7. Mentioned in reign of Henry V. At a very early period in England, notaries were employed to attest or authenti- cate instruments of more than ordinary importance or solemnity ; an instance of this is given in the ninth year of the reign of Henry V, when two notaries are mentioned in the Parliament- ary Rolls of that year as attesting an instrument of importance relating to the affairs of Lucie, Countess of Kent : " Ensealee desoutz le seal d'annes du dite Countesse and desoutz le tesmoig- nance de deux notaries mettantz lour signes a mesme 1'escript de le quele les paroles cy ensuent, etc." 1 In the reign of Henry VI, in the year 1430, there occurred a trial by battle, or single combat, one of the former barbarous modes of trial, before the king, in which one of the parties was John Upton, a notary of Feversham. The following is taken from an account, by Stow, of the combat : " The f oure and twentieth of January, a battel was done in Smithfield, within the lists, before the King, betweene two men of Feversham, in Kent, John Upton, notary, appelant, and John Downe, gentleman, defendant; John Upton put upon John Downe, that he and his compiers should imagine the King's death, the day of his coronation : when they had long fought the King tooke up the matter and forgave both parties." '' 8. Acts of a solemn nature executed before notaries. Apart from the ordinary duties of notaries, as attesting the execution of wills, contracts, bonds, and the like, there were sometimes executed before them acts of a high and solemn nature, in order to give them more of an impressive and authen- tic character. Thus it happened that they were called upon to officiate in drawing up and authenticating treaties. In the enumeration of the army of King Edward IV, designed for the invasion of France in 1475, we find there mentioned a doctor of laws and public notaries engaged to accompany the *4 Rot. Parl. 9 Henry V, p. 144. a Stow's Annals, p. 371 9 HISTORY OF THE OFFICE. 7 troops, and the remuneration paid them is also stated. " Ma- gistro Johanni Coke, Doctori Legum pro vadiis suis 'ad 2s. pei diem, et pro vadies cujusdam Notarii Publici ad 12d. per diem." 3 That notaries were employed in foreign countries to protest or record dissents in respect of public or state measures, is proved by the well-known "historical fact of Francis I, of France. having made a protest in 1526, before notaries at Madrid, de- claring that his consent to the treaty of Madrid should be considered as an involuntary deed, and deemed null and void, as having been obtained from him during his captivity, consequent upon the battle of Pavia. 2 In the " Merchant of Venice " we see how well established the custom was in Shakespeare's time to execute instruments oi a solemn nature before a notary. Shylock. This kindness will I show: Go with me to a notary, seal me there your single bond. ***** Antonio. Yes, Shylock, I will seal unto this bond. Shylock. Then meet me forthwith at the notary's. 3 And Massinger, writing in 1633, thus alludes in a satirical way to the duty and power of a notary : " Besides, I know thou art A public notary, and such stand in law For a dozen witnesses ; the deed being drawn, too, By thee, my careful Marrall, and delivered "When thou wert present, will make good my title." * 9. Effect of Reformation as to office and duties. In England, no material change was produced in the position and functions of notaries by the Reformation, except that the power of granting faculties, which hitherto belonged exclusively to the Pope, was assumed by King Henry VIII, and a Court of Faculty was created, which was attached to the Archbishop of Canterbury, to which Court the appointment of notaries was delegated. 5 After this, it is apparent, the character and functions of a ill Rymer's Fzedera, 848. 2 Robertson's Charles V, Vol. 1, p. 388. 8 Act I, SceneS. 4 By Sir Giles Overreach, in Act V of "A New "Way to pay Old Debts." 6 Brooke, Office and Practice of a Notary, p. 6. 8 HISTORY OP THE OFFICE. 9 notary were no less considered, as appears from a provision re- specting the recording and attesting of wills in certain Courts in the reign of James I, of which an account is thus given : " In the Canon of 1st James I, (1603) respecting wills proved in peculiar and inferior Courts, after reciting that deans, arch- deacons, prebendaries, etc., etc., exercising ecclesiastical juris- dictions, having no known or certain registers, or public places to keep their records in,'by reason of which many wills, ' upon the death or change of such persons and their private notaries,' miscarry and cannot be proved, it is therefore ordered that all such possessors of peculiar jurisdiction shall, once in every year, exhibit into the public registry of the bishop of the diocese, or of the dean and chapter under whose jurisdiction the peculiars are, every original testament by them proved in their several peculiar jurisdictions, or a true copy of every such testament, ' examined, subscribed, and sealed, by the peculiar judge and his notary.' " l In Scotland, before the Reformation, the duties of notaries wece generally discharged by the clergy ; but by the Act of 1584, they were precluded from exercising other callings than clerical duties, excepting the making of testaments ; and even this was soon afterward removed and laymen were exclusively appointed to the office. 2 1 Gibson, Codex Juris Ecclesiastic! Anglicani, Vol. 1, Tit. 24, p. 470. 2 Brooke, Office and Practice of a Notary, p. 7. 10-11 APPOINTMENT OF NOTARIES. CHAPTER II. APPOINTMENT OF NOTARIES. 10. Executive generally appoints. 11. In England, appointed by the " Courfrof Faculties." 12. Appointment in United States. 13. Qualifications for appointment. 14. Period for which appointed. 15. Notaries in France. 10. Executive generally appoints. As a general rule, the executive power in every State is intrusted with the power and authority to appoint and commission notaries. We have already adverted to the practice in England before the Reform- ation, when the Pope exercised the right to appoint notaries, as included under his general power of appointing . to certain faculties, as it was termed. In the American States, and throughout the Continent of Europe, the executive exercises the privilege of appointment. 11. In England, notaries are still appointed by the " Court of Faculties," which is stated to be " a Court, although it hold- eth no plea of controversie." 1 There is a rule that, in order to practice as a notary in London, or within ten miles thereof, a person must lyive served for seven years as an apprentice under a qualified notary in actual practice, and if within three miles, he must also be a member of the Scriveners' Company. To prac- tice at a greater distance than ten miles from London, a person must be admitted upon the production of a certificate of clerk- ship of five years to a notary, or an attorney and notary. 2 The following is a form of a commission for a notary practic- ing out of London, taken from Brooke : " By Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, by authority of Parliament, lawfully empowered for the purposes herein written : To our 1 Brooke, Office and Practice of a Notary, p. 9. 25 and 7 Viet. Chap. 90. 10 APPOINTMENT OF NOTARIES. 12 beloved in Christ, C D , a literate person, now residing at Liverpool, in the County of Lancaster, health and grace : We being willing, by reason of your merits, to confer on you a suit- able title of promotion, do create you a Public Notary, previous examination and the other requisites to be herein observed hav- ing been had ; and do, out of our favor toward you, admit you into the number and society of other notaries, to the end that you may henceforward,' in all places, (except within the juris- diction of the incorporated Company of Scriveners of Lon- don) exercise such office of notary, hereby decreeing that full faith ought to be given, as well in judgment as thereout, to the instruments to be from this time made by you, the oaths hereunder written having been by us, or our 'Master of the Faculties, first required of you, and by you taken. " Provided always, that these presents do not avail you any- thing, unless duly registered and subscribed by the Clerk of 1ier Majesty for Faculties in Chancery. Given under the Seal of our Office of Faculties at Doctors' Commons, this day of , in the year of our Lord one thousand eight hundred and , and in the year of our translation. "[Seal.] J. H. T. MANNERS SUTTON, " Registrar." "o* 12. Appointment in the United States. In a majority of our States, the governor has the power of appointing nota- ries, without the nomination being submitted to or passed upon by the senate. In some places, the appointment is made after a previous recommendation of the applicant. Thus, in Illinois, the governor appoints by and with the consent of the senate, and none are to be appointed except on a petition of fifty legal voters of the place where the applicant resides. 1 In Indiana, notaries are appointed by the governor upon a certificate of qual- ifications and moral character from the judge of the Circuit or Common Pleas Court of their counties respectively. 2 So in Ohio, the governor appoints, but each applicant is to produce a certificate from a judge of the Court of Common Pleas, residing in the same county and district, stating that the applicant is of good moral character, and an elector in the State. 3 i Eev. Stat. 1874, p. 721. 2 1 G. & H. 445. i Swan & C. 872. 12 APPOINTMENT OF NOTARIES. 11 In the following States the appointment is made by and with the advice and consent of the senate : Arkansas, 1 Illinois, Ken- tucky, 2 Louisiana, 3 Maryland, 4 Minnesota, 5 Michigan, 6 New York, 7 Texas. 8 In Massachusetts and New Hampshire, the governor appoints by and with the advice of his council. 9 In Tennessee, notaries are appointed by the justices of the County Court, three for each county. 10 So in Vermont, the judges of the County Court may annually appoint as many as the public good may require, to hold office for one year. The certificate of appointment must be signed by two or more judges of the County Court, and recorded. 11 In Rhode Island, notaries are elected. 12 - There is a somewhat singular law in Georgia. The gov- ernor is authorized to appoint a notary for each militia district, who is to be ex officio a justice of the peace. And another class is appointed, termed " commercial notaries," by the judges of the Superior Court. 13 In Mississippi, before 1872, the duties of notaries were dis charged by justices of the peace, but by Act of April 5th, 1872, it is provided, Sec. 1, that " all justices of the peace in this State, mayors of any incorporated city, and the clerks of the Circuit and Chancery Courts, shall be notaries public by virtue of their office." In Sec. 2, the " governor may appoint one notary public for each incorporated city or town having a population of three thousand from the qualified voters." iGantt's Dig. Sec. 4297. 2 Gen. Stat. 1873, p. 676. s Dig. of Stat. 1870, p. 272. * Gen. Laws, p. 468. eiBissell'sSt. 205. 6Comp. Laws, 1871, p. 261. 1 1 Rev. Stat. 6th Ed. p. 379. 8 Pascal's Dig. p. 788; by and with the advice of two-thirds of the senate. It seems that the governor's appointment of a notary public is inoperative without the advice and consent of the senate. Brown v. State, 43 Tex. 478. 9 Gen. Stat. 1860, p. 32; Gen. Stat. K H. p. 62 i" 1 Thomp. & S. Sec. 1792. 11 Gen. Stat. p. 97. 12 Gen. Stat. 1872, p. 68. 13 Code 1873, Sec. 1497. 12 APPOINTMENT OF NOTARIES. 13 13. Qualifications for appointment. It is essential in every place that the notary be a citizen of the State, and that he be a person of good moral character. In some States, a cer- tain length of residence is required before one can be qualified. Thus, in Maryland, the applicant must have had a residence of two years in the State. 1 In Pennsylvania, the applicant must have resided two years in the Commonwealth, and one in the city and county. 2 It . is required in some States, before a notary's certificate is issued, that he file a bond conditioned for the faithful discharge of his duties. This is required in those States where notaries are intrusted with very responsible duties, and to whose office a certain dignity and deference is attached. There is a very loose method of appointment in some States : the appointments are not restricted in number, and no bond is exacted, and it is there found that notaries perform their du- ties very carelessly. 3 In Alabama, notaries are required to give a bond of $2,000, to be approved by the probate judge. 4 In California, " each notary must execute an official bond in the sum of $5,000, which bond must be approved by the county judge of his county, and filed and recorded as other official bonds of county officers." 5 And in Wisconsin, a bond of $500 is required. 6 In Pennsylvania, by Act of February 19th, 1873, the gov- ernor is authorized to appoint as many notaries as he deems necessary ; but, before a commission is issued, the appointee must pay twenty-five dollars for the use of the Commonwealth. In Iowa, before any commission is delivered to a notary, he must qualify as follows : 1. Procure a seal, on which shall be engraved the words " Notarial Seal," and " Iowa," with his sur- name at length, and at least the initials of his Christian name. 2. He must execute a bond in the amount of $500. 3. He shall 1 Gen. Laws, p. 468. 2 Pardon's Dig. p. 758. 8 This is the case in New York, where no bond is required, and where appoint- ments are made very indiscriminately. A large proportion of the members of the bar in New York city are notaries. * Code, Sec. 1080. e Political Code, Sec. 799. 6 1 Rev. Stat. 283. 14 APPOINTMENT OF NOTARIES. 13 write on said bond his signature, and place on it an impression of his seal. 4. He shall file the bond and papers in";. Bailey, 2 Cal. 383; Williams v. Chadbourne, 6 Id. 559. * Higgins v. Wortel, 18 Cal. 330. 5 Roberts . Fleming, 31 Ala. 683. oprather v. Pritchard, 26 Ind. 65. 72 DEPOSITIONS. 63 and subscribed ; especially when it appears that the deposition was not required to be taken at any given time. 1 So, under a statute which required that a deposition should be carefully read to and subscribed by the witness, if the certificate of the officer who took it is that it was read to the witness, omitting the word " carefully," the deposition will not, therefore, be ex- cluded. It will be presumed that the officer performed his duty under the statute. 2 The caption of a deposition stated " the ad- verse party was duly notified and was not," omitting the word " present," it may be obviously understood, and it cannot be re- garded as substantially defective. 3 And a deposition was held not to be insufficient because the officer taking it omitted the word " presence " from his certificate that the deposition " was reduced to writing in my, and by the said deponent sworn to and subscribed in my presence." 4 63. As to swearing the -witness. The statutes require that the fact that the witness was sworn shall be certified to by the officer taking the deposition ; and where it appears that the deponent was not duly sworn, the deposition will be reject- ed. 5 Many of the decisions are very strict on this require- ment, holding there must be a literal compliance with the stat- ute. Thus, when a statute required, as most of our statutes do, that a deponent shall be sworn " to testify the truth, and noth- ing but the truth, relating to the cause or matter for which the deposition is to be taken," and it was stated that " the deponent was first sworn according to law to the aforesaid deposition by him subscribed," the deposition was rejected. 6 But where th< certificate to a deposition states that the deponent "was swora to testify "the whole truth of his knowledge touching the mat- ters in controversy in the cause," it was held to be an imma- terial deviation from the exact requirements of the statute in 1 Elgin v. Hill, 27 Cal. 372. 2 Sheldon v. Wood, 2 Bosw. 267. Kidder v. Blaisdell, 45 Me. 461. 4 Stone v. Stilwell, 23 Ark. 444. 6 The witness should be sworn before giving his deposition. Armstrong v. Burrows, 6 Watts, 266; Stonebreaker v. Short, 8 Penn. St. 155. But ib Vermont it is immaterial whether sworn before or after. Barren v. Pettis, 18 Vt. 385. Parsons v. Huff, 38 Me. 137; Brighton v. Walker, 35 Me. 132; Erskine v. Boyd, Id. 511; Fabyan v. Adams, 15 N. H. 371; Rainer v. Haynes, 1 Hemp. 689; Put- nam v. Larrimore, Wright, (Ohio) 746; Simpson v. Carleton, 1 Allen, 109. 34-65 DEPOSITIONS. 73 such cases. 1 It has been held that a certificate that the depo nent was " duly sworn" according to law, imports thatihe form of the statute was properly observed. 2 The omission of a commissioner to show in his formal cer- tificate that the witness was sworn, is no ground for suppressing the deposition, when the commissioner shows in the preamble to the deposition that the witness was by him cautioned and sworn to speak the truth and nothing but the truth, the whole truth and nothing but the truth, in answer to the interrogatories. 3 A liberal rule is held in Massachusetts regarding a deposition taken out of the State. It is held that if the deponent was sworn, it is not necessary to follow the statutory form. 4 64. The identity of the witness is in some places re- quired to be certified to, as in Alabama, California, Delaware, and Texas. Unless the commissioner certifies to his personal knowledge of the identity of the witness, or that proof thereof was made before him, the deposition is inadmissible. 5 65. Writing out the deposition. The statutes forbid the writing out of the answers in the deposition, by any one a party to, or interested in, the suit. 6 Thus, when it appeared that a deposition had been written by the attorney of the party in whose favor it was to be read, instead of by the commissioner designated in the notice, and that the adverse party was not present at the time, it was held the deposition should be excluded. 7 It is held that a party in whose behalf a deposition is taken, or his attorney, may write the questions, but not the answers thereto. 8 There is, however, no objection to a witness writing lAYelborn v. Swain, 22 Ind. 194. 2 Dennisonr. Benner, 41 Me. 332; New Jersey Ex. Co. v. Nichols, 3 Vroom, 166; Ballard v. Perry, 28 Tex. 347. The officer taking a deposition must certify that the witness was first duly sworn, but the certificate of that fact may be made either at the end or at the commencement of the deposition. House v. Elliot, 6 Ohio St. 497; S. P. Doe v. King, 4 Miss. 125. 3 Broadnax v. Sullivan, 29 Ala. 320. 4 Stiles v. Allen, 5 Allen, 320 ; Quinley v. Atkins, 9 Gray, 370. 6 Buford v. Gould, 35 Ala. 265; Parrelly v. Maria, 34 Id. 284. 6 Steele v. Dart, G Ala. 798. But see Donoho v. Petil, 1 Miss. 440. i Hurst v. Larpin, 21 Iowa, 484. See Bank v. "Woods, 11 Penn. St. 99. 8 Snyder v. Snyder, 60 Ind. 492. 74 DEPOSITIONS. 66-67 his answers himself. 1 The proper person to write out the depo- sition is .the officer commissioned to take it. It was therefore held that depositions taken under a commission executed by commissioners, one of whom could not write, were not admissi- ble in evidence. 2 But when it appeared that the magistrate who took a deposition, not being a ready penman, called in a third person, who was disinterested, who wrote the answers of the witness, the magistrate being present and supervising, it was held that the deposition might answer the requirements of the statute, but that such a practice might be liable to abuse, and should not be encouraged. 3 If a deposition is written in the absence of the magistrate, and the other party cross-examines the witness, and does not object to the informality at the time, the deposition may be put in evidence. 4 When a commissioner is appointed to take depositions, it is improper for the witness to produce his deposition written by himself, not in the presence of the magistrate. 5 66. The manner of -writing out the deposition is in a form to respond to certain numbered interrogatories, the answer being given to a certain interrogatory referred to. In Califor- nia, it was held that there could be no objection to a deposition taken by a party in the State where the opposite party failed to appear, because it was in a narrative form, and not taken by question and answer. 6 Where the commissioner writes down the answers of two witnesses as one deposition, though it be more regular to write them separately, yet, if both have signed and sworn to everything written as answers to the several ques- tions the commission is good. 7 67. Language of the deposition. Depositions may be taken in a foreign language when the witnesses are unable to iCarlylo v. Plumer, 11 Wis. 96; Shropshire v. Stevenson, 17 Ga. 622; Wilson v. Smith, Yerg. 379. 2 Austen v. Carey, 23 Ga. 4. Cushman v. "SVooster, 45 N. H. 410. * Logan v. Steele, 3 Bibb, 230. 6 Foster v. Foster, 20 N. H. 208; McEntire v. Henderson, 1 Penn. St. 402. Pralus v. Pacific etc. Co. 35 Cal. 30. ? May v. Norton, 11 La. An. 714. 68 DEPOSITIONS. 75 speak English ; when introduced in Court they can be trans- lated by a sworn interpreter. 1 Where evidence is taken by a commission, and it appears by the answers that the witness does not understand English, the Court will presume, in the absence of proof to the contrary, that the commissioner understood the language of the witness. 2 But if the person taking a deposition does not understand the language of the witness, nor the witness his language, an in- terpreter must be sworn to interpret between them ; and that fact must appear by the certificate of the person taking the de- position, and cannot be supplied by his affidavit taken after- ward. 3 68. Presence of parties. It is generally required that when the deposition is taken in the State where the trial takes place, it shall be on notice, and the certificate attached must certify if such notice was given. So, where a notary public, before whom a deposition was taken, certified that the ad- verse party, living more than twenty miles from the place of caption, was duly notified, and did not attend, it was held that this was sufficient evidence in the first instance of the fact of such notice, open, however, to contradiction. 4 It is not necessary to set forth in the caption that the taking commenced at the hour designated in the notice. It is sufficient if it be certified that it was taken at that hour. 5 But when the deposition is taken out of the State, it is held to be improper for the party, his agent or attorney, to be pres- ent, except under consent or stipulation ; and when the return stated that " H. C. G., Esq., being present on behalf of the plaintiff," the deposition should have been excluded. 6 In many of the forms, it will be found, it is required of the officer to certify 1 Cavasos r. Gonzales, 33 Tex. 133. 2 City etc. Ins. Co. v. Carrugi, 41 Ga. 660. 3 Ainory v. Fellows, 5 Mass. 219. The questions appended to a commission sent to Bremen were in English ; the commissioners returned the answers in German, annexed to a German translation of the questions ; the commission was objected to, on the ground that the return should have been in English, or accompanied by an English translation, but the objection was overruled. Kuhtman v. Brown, 4 Rich. S. C. 479. 4 Lyon v. Ely, 24 Conn. 507. 5 Scammonv. Scammon, 33 X. H. 52. 6 Walker r. Barren, 4 Minn. 2o3. 76 DEPOSITIONS. 69-70 as to this fact, as in Arkansas, Indiana, Kentucky, and Massa- chusetts. 69. Place where taken. When the deposition is taken on notice, the place must be definitely stated in the notice, and the return must show the deposition was taken at such place. Where a notice had been given that a deposition would be taken at the office - of Squire Moore, and the caption and certificate attached showed that it was taken at the office of Enos Moore, it was held that the deposition should be sup- pressed, because it did not sufficiently appear that it was taken at the place named in the notice. 1 But in Wisconsin, in Fisk v. Tank, 2 it was held that a deposition is not invalidated for want of a venue or statement of the place of taking, either in its margin, or in the commissioner's certificate. But it appears that this deposition was taken out of the State, and the case agrees with the rule laid down. If a subpoena issued by a notary for a witness to appear be- fore him and give his deposition, fails to specify the precise locality where the notary will take the deposition-, the witness will not be excused for non-attendance, if he is not misled thereby. 3 70. Powers of notaries in taking depositions. Nota- ries have power, in a majority of our States, to take depositions by virtue of their office. This power clothes them with certain necessary authority, in order to properly discharge the duty com- mitted to them. They have therefore the right to issue a sub- posna for the attendance of a witness whose deposition is to be taken before them. But what further power do they possess ? What can they do if the witness refuse to attend, or, attending, refuse to answer ? In some places the statutes give express au- thority to an officer taking a deposition to enforce the attend- ance and answers of a witness ; but even if the statutes are silent on this point, it must be a power incidental to the office with which the notary is clothed, for the time being, to enforce the attendance and the answers of a witness. Thus, in a late i McClintock v. Crick, 4 Iowa, 453; 2 12 Wis. 276. 8 Keisher v. Ayres, 46 Cal. 82. 70 DEPOSITIONS. 77 case in Kansas, the deposition of a party was to be taken before a notary public. The party attended before the notary* but re- fused to be examined, whereupon the notary committed him to the custody of the sheriff, as keeper of the common jail, for con- tempt. He was then brought up on a habeas corpus, and it was decided the committal was legal. 1 It is to be observed that the statute in Kansas does not expressly confer this power, only as it is incidental to the authority conferred on the officer to take depositions. The same question has come before the Court on three occa- sions in Missouri. In Ex parte McKee, 2 it was held that a notary public, being an officer authorized to take depositions, has authority to commit a witness for refusing to answer any questions other than those which it is his personal privilege to refuse to answer. But in Ex parte Mallinkrodt, 3 it was held that a notary public has no power to commit a witness for re- fusing to produce books and papers under a subpoena duces tecum. I cannot but regard this decision as of very doubtful authority, in view of the previous case, and one presently to be noticed, for the distinction is purely arbitrary. In a late case in the same State, Ex parte Munf ord, 4 it was decided that in a pend- ing suit a notary public has power to enforce the attendance of witnesses to give their depositions, and can compel them by im- prisonment to answer any questions not violative of personal priv- ilege. These decisions in Missouri are based upon the express power in their statute given to officers taking depositions. But it cannot be denied that officers who have power to issue a subpoena for witnesses to give their depositions before them must have, irre- spective of any statutory express power, a right to enforce obe- dience to their subpoena, otherwise their official duties could not be properly discharged. The provisions of the Code of Civil Procedure, in California, give power to officers taking deposi- tions to enforce obedience to their subpoena. In Sec. 2031, it is provided that depositions in the State may be taken before a judge, or officer authorized to administer oaths ; then, in Sec. 1986, it is provided that a subpoena may issue in certain cases, one of which is to require the attendance out of Court before a i In re Abeles, 12 Kan. 451. 3 20 Mo. 493. 2 1 8 Mo. 599. < 57 Mo. 673. 78 DEPOSITIONS. 71 judge, justice, or other officer authorized to administer oaths or take testimony in any matter under the laws of the State, and such subpoena is issued by the officer before -whom the at- tendance is required. In Sec. 1991, a provision is made for punishing, as for a contempt, by the officer issuing the subpoena, disobedience to the subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or .deposition when required. Therefore, as notaries are empowered to take depositions, being officers authorized to administer oaths, they can exercise the power given officers in the last section. They cannot, however, exercise such power when acting under a foreign commission, for in such a case they are not authorized to issue a subpoena. 1 It has been held in Indiana, and no doubt the same would be so held everywhere, that an officer taking a deposition cannot de- cide legal questions, as whether a witness be competent. 2 71. Adjournments. Usually, the notice to take the dep- osition of a witness states that the meeting may be adjourned from day to day, until the deposition is completed ; and an ad- journment other than this, except with the consent of both parties, will be unlawful. 3 So, where a notice to take deposi- tions recites that the taking will be commenced on a certain day, and continued from day to day thereafter until completed, an adjournment for a longer time will be unauthorized, and will subject the depositions so taken to suppression unless the oppo- site party appear and waive such objection. 4 But when a dep- osition was begun in the presence of both parties, but too late in the day to get through, and the witness was necessarily called off the next day, and the party against whom the deposition 1 Code of Civil Proced. Sec. 2036. 2 Carpenter . Dame, 10 Ind. 125. 8 Where notice is given to take depositions on a certain day, continuing from day to day until they are completed, if there is a continuance from day to day for several days in the taking of a deposition, it must appear upon the record what was done each day, and that there was good cause for the delay, or the deposition ought to be suppressed. Bracken v. March, 4 Mo. 74. 4 Raymond v. Williams, 21 Ind. 241. See, to the same point, Parker v. Hayes, 23 K J. Eq. 186; King v. State, 15 Ind. 64. A commission directing commissioners to take a deposition on a certain day, and continue from day to day until completed, does not authorize them to ad- journ to a day beyond the next succeeding. Harding v. Merrick, 3 Ala. CO. 72 DEPOSITIONS. 79 was to be used would not agree on a future time to finish it, and it was then announced that some other deposition would be taken on the following day, so as to preserve the right to ad- journ over until the next day, when the deposition of the first witness should be finished, the deposition thus completed on the third day was held admissible in evidence. 1 It is irregular, in taking depositions, to adjourn from the place where the adverse party has been served with notice to attend, to another place in the absence of such party. 2 In Wixon v. Stephens, 3 it is held that the practice of adjourning the exam- ination of witnesses by the commissioner, to another town from that designated for the purpose, without the consent of parties, is of questionable propriety, and not to be encouraged; but when a party did not attend at the time and place designated, and, owing to the absence of one of the witnesses, the commis- sioner adjourned the examination to another day and another place, within the county ; and on such adjourned day proceeded to take the testimony, it was held that if the party had in any way been injured by the adjournment, his remedy was to apply to the Court to suppress the depositions. The person authorized to take a deposition may adjourn the time of taking at his discretion, even though neither party ap- pear at the time first appointed, provided a reasonable notice be given to the parties. 4 72. The deposition should be subscribed, or it cannot be admitted in evidence. So, where an officer taking a deposi- tion does not certify that it was signed by the witness, it is not admissible in evidence. 5 A deposition purporting to set out the answers of a witness to the interrogatories and cross-interroga- tories, but not subscribed by him, accompanied by a certificate of the commissioner stating that the said witness, " after having read over the answers of B, did solemnly swear that he would adopt them, but the steamboat on which he was going up the 1 Jarboe v. Colvin, 4 Bush, 70. The reason for the adjournment should be given. Kisskadden v. Grant, 1 Kan. 323. 2 Beach v. Workman, 20 N. H. 379. 8 17 Mich. 518. * Pindar v. Barlow, 31 Vt. 529. 6 Thompson v. Haile, 12 Tex. 139. 80 DEPOSITIONS. 72 river left before he could subscribe them after I had written them off," was held not admissible in evidence. 1 73. Certification of official character of officer. The statutes are not uniform as to how the official character of the officer taking the deposition shall be made to appear. Many States do net insist upon anything further than the officer's own certificate as to his official character ; this being accepted as prima facie evidence of his capacity as such officer to take the deposition. 2 Thus, a deposition purporting to have been taken in the State and county named in the commission, and certified by the person taking it, with his name, and the letters " J. P.," is sufficiently authenticated. 3 So, when the parties to a suit agree that a deposition may be taken at a certain place, during a certain month, before T, a notary public in another State, the deposition certified by T may be read by either party without other proof that T was a notary when the deposition was taken. 4 And a recent case in Nebraska holds that depositions taken in Illinois by a notary public, certified under his hand and official seal, may be read in evidence without further authentication. 6 The seal of a notary public, attesting his certificate to a deposi- tion, need not be impressed upon wax ; an impression upon the paper is enough. 6 When the commission is directed to certain persons named therein, no authentication is required : their signatures and seals are sufficient ; but it must appear that the person returning the deposition is the identical person to whom the commission was directed. Thus, a deposition directed to George Dunlair, but taken by George Dunbar, was held inadmissible in evidence, though Dunbar was the man intended. 7 And depositions taken before a commissioner of deeds in another State, appointed by 1 Bell v. Chambers, 38 Ala. G60. 2 Dean v. Dygert, 1 A. K. Marsh. 172 ; Clement v. Durgin, 5 Me. 9 ; Savage t. Balch, 8 Id. 27 ; Adams v. Graves, 18 Pick. 355 ; Allen v. Perkins, 17 Id. 3G9 ; State v. Kimball, 50 Me. 409 ; Hoover v. Rawlings, 1 Sneed, 287. Hobbs v. Shumates, 11 Gratt. 516. 4 Sargent v. Collins, 3 Nev. 260. 5 Martin v. Coppock, 4 Neb. 173. 6 Myers . Russell, 52 Mo. 26. Breyfogle v. Beckley, 16 S. & R. 264. 74 DEPOSITIONS. 81 the State where the deposition is offered in evidence, are suffi- ciently authenticated by such commissioner's own certificate. 1 74. Certain States require a certification of official character, showing that the officer certifying to the deposition was in fact such officer as he claims to be. In the forms will be found the provisions of the statutes of the States where this is required. This certification is necessary where a commission is directed to an officer by his official designation, without naming the individual. Thus, by the laws of Colorado, when a judge or justice of the peace acts as a commissioner, his official character must be certified to under the great seal of the proper Court of the county or city where such deposition is taken. 2 So, in Illinois, when any deposition shall be taken by any judge, master in chan- cery, notary public, or justice of the peace out of the State, or other officer, the 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. 3 Similar provisions will be found in the statutes of Iowa, Louisiana, Missouri, New Hamp- shire, and Virginia. In the States of Kansas, Nebraska, and Ohio, and in the Territory of Wyoming, the officers may certify with their own seals, if they have any, but if not, their official signatures must be authenticated. 4 As we pointed out above, in Louisiana, when depositions are submitted, purporting to be taken before a justice of the peace, a certificate must accompany them showing that such person was in fact the officer he represents himself to be. 5 In New Hampshire, a certificate of a county clerk in New York, under the seal of the county, was held competent evidence to show that an individual, who had acted as a magistrate in taking a 1 Johnson v. Cocks, 7 Ark. G72 ; Den v. Lloyd, 31 N. J. L. 395. At the conclu- sion of a commission, the commissioner signed his name " A B, Notary Public," but indorsed the commission as follows: "The execution of this commission appears in a certain schedule hereto annexed. A B, Comm'r." It was held that this was sufficient. Munroe v. Woodruff, 17 Md. 159. - Rev. Stat. p. 313. Notaries cannot take depositions in this State under a commission. a Rev. Stat. of 1874, p. 494. 4 See statutory provisions of these States in the forms. 8 Succession of Grant, 14 La. An. 795 ; Morrison v. White, 16 Id. 100 NOTARIES 6. 82 DEPOSITIONS. 75 deposition, was, in fact, a justice of the peace. 1 In Wells v. Jackson etc. Co., 2 it was held that the authority to take a deposi- tion is sufficiently shown by proof that the person taking it was an acting commissioner or notary. In Vermont, it has been held that a deposition taken by a justice of the peace, under a foreign government, does not authenticate itself. 3 75. Return of the deposition. In some of our States, it is required that the return of the commission shall be indorsed on the commission itself, and not attached to it on a separate paper ; but where there is no statutory provision requiring it, the return may be made on a separate paper attached. So, when the return, instead of being indorsed upon the commission itself, was written upon one of the sheets appended by the commis- sioner, it was held sufficient. 4 In New York, in Pendell v. Coon, 5 it was held that the return of a commissioner to take testimony need not be indorsed on the commission itself, nor be on a paper containing the depositions annexed, or any part thereof ; but where it is necessary, by reason of the paper con- taining the depositions being filled thereby, to annex an inde- pendent sheet, the return may be on the sheet so annexed. But, in this case, some of the judges held that in case there was suffi- cient space on the deposition for the return to be written, it should be inserted there, and not attached on a separate paper. In Minnesota, under their statute, the return must be indorsed 1 Dunlap v. "Waldo, G K H. 450. 2 47 N. H. 235. 8 Bown v. Bean, 1 D. Chip. 176. See Baker v. Rickhart, 52 Ind. 594. The office of a county clerk is incompatible with the office of a notary, and on his acceptance and qualification as county clerk, the office of notary becomes ipso facto vacated ; and a single act of the notary in taking a deposition, after his acceptance of the office of county clerk, will not make him a notary public de facto, but such deposition is void. Biencourt v. Parker, 27 Tex. 558. Where a commission issues to a notary public, if within the United States or Canada, it is sufficient to name the county of his residence ; but if the deposition is to be taken in some foreign country, the city or town of his residence must be stated. Lyon v. Barrows, 13 Iowa, 428. Notaries cannot take depositions to be used in Courts in Tennessee. Carter v. Ewing, 1 Tenn. Ch. 212. 4 Cook v. Bell, 18 Mich. 387. 20 N. Y. 134. See McCleary v. Edwards, 27 Barb. 239, holding that it cannot be objected to a deposition that the return to the commission was indorsed upon the interrogatories, which, with the deposition, were annexed and secured to the commission. 75 DEPOSITIONS. 83 on the commission, and it is not sufficient if annexed to the deposition. 1 In Savage v. Birckhead, 2 in Massachusetts, it was held, where depositions taken under a commission were returned, together with the commission and interrogatories, in an envelope, under the seal of the commissioner, but were not attached to the com- mission, and the commissioner's certificate of caption was also upon a separate paper in the same envelope, that they should be admitted in evidence. A deposition taken out of the State by two commissioners, appointed by the Court, should be signed and sealed by both commissioners ; the envelope should also be signed and sealed by both commissioners. 3 A commission issued to four commis- sioners jointly, to take the depositions of witnesses in England, was executed and returned by three of the commissioners only, two of whom, however, were of the defendant's nomination ; and it was held they were not admissible in evidence. 4 1 Beatty v. Ambs, 11 Minn. 331. 8 Wain v. Freedland, 2 Miles, Penn. 161. 2 20 Pick. 167. * Guppy v. Brown, 4 Dall. 410. 84 NEGOTIABLE INSTRUMENTS. CHAPTER VH. DUTIES RELATIVE TO NEGOTIABLE PAPER. 76. Importance of duties in this respect. L PRESENTMENT FOB ACCEPTANCE. 77. "What should be presented for acceptance. 78. By and of whom presentment made. 79. Place of presentment. 80. Mode of presentment. 81. Time within which presentment made. 82. Excuses for delay in presentment. 83. As regards the time of day. 84. Delay by agent more strictly regarded. 85. Acceptance, how given. 86. Statutory provisions regarding mode. 87. Time given drawee for acceptance. 88. A partial or conditional acceptance. 89. Acceptance supra protest. n. PRESENTMENT FOR PAYMENT. 90. By whom demand of payment made. 91. Demand by notary or clerk. 92. To whom presentment for payment made. 93. In case acceptor or maker be dead. 94. In case of partners. 95. When the acceptor or maker cannot be found. 96. Time of making presentment for payment. 97. As to the time of day for demand of payment. 98. Computation of time. 99. Rule regarding Sundays and holidays 100. Place of presentment for payment. 101. Mode of demanding payment. 102. When paper payable at bank. 103. What will excuse failure to demand payment. in. PROTEST. 104. Meaning and effect of. 105. What instruments should be protested. 106. Foreign promissory notes. 107. By whom the protest should be made. 108. Place of protest. 109. Formal preparation of protest. 110. Contents and particulars of protest. 111. Date of protest. *76 NEGOTIABLE INSTRUMENTS. 85 112. As to the place of presentment. 113. A presentment and demand must appear 114. Other facts appearing by the certificate. 115. When protest unnecessary. IV. NOTICE OF PROTEST. 116. Who must have notice. 117. Manner of giving notice. 118. Form of the notice. 110. As to the description of the instrument. 120. The fact of dishonor. 121. As to notice of demand for payment from party. 122. The party who gives notice. 123. Notice by an agent. 124. The proper person to receive notice. 125. Notice when the parties reside in the same place. 126. Who may be regarded as living in the same place. 127. When notice is personally served. 128. Notice parties residing in different places. 129. When parties reside temporarily in a place. 130. The place where notice should be sent. 131. Time within which notice given. 132. What hour next day is reasonable. 133. When holidays intervene. 134. A holder has a day to give notice to predecessor. 135. Liability of notary in reference to negotiable paper. 76. Importance of duties in this respect. The con- fidence placed in notaries public in regard to their duties in making presentment, demand, protest, and notice of protest of negotiable instruments, renders this part of their duty very im- portant. 1 A failure to duly perform these duties may not only 1 QUALITIES OP NEGOTIABLE PAPER. 1. It must be open and unsealed. If a seal be impressed and a recognition of the seal be made in the body of the paper, it is then a special contract, in the nature of a bond. Conine t. Junction etc. E. B. Co. 3 Houston, 28'J ; Edwards on Bills, 208. In some States, sealed instruments for the payment of money are placed by statute on the same footing as bills and notes in respect to their negotiability. These States hold that the addition of a seal to a bill or note, payable to order or bearer, does not impair its negotiability. The places in which this is the rule are Colorado, Dakota, Florida, Georgia, Illi- nois, Kansas, Massachusetts, Nebraska, North Carolina, Ohio, Tennessee. Dan- iel on Xeg. Instruments, Sec. 33. But, in general, the mere affixing a scroll or seal to the name of the drawer or maker, will not affect the negotiable char- acter of the instrument. Anderson v. Bullock, 4 Munf. 442. 2. The engagement to pay must be absolute. There must not be a mere request of a favor, as in the case where a paper read, " Mr. L, please to let the bearer have 7, and plane it to my account, and you will much oblige your humble servant" : it was held not to be negotiable. Little v. Stackford, 1 Mood. & M. 371. And a mere acknowledgment of a debt due, without any express or implied promise to paj on its face, is not negotiable, as is held in England, in the case of an ac- knowledgment in the form of I O U. Fisher t'. Leslie, 1 Esp. 425. But when 86 NEGOTIABLE INSTRUMENTS. 76 result in serious loss to those employing them, but may subject the notary to serious liability. Hence, it will be desirable to point out clearly the duties devolving on notaries in this re- spect, and the proper manner of performing the important functions intrusted to them. The duties of a notary in respect to negotiable paper may be divided into three divisions, viz : 1. Presentment for acceptance or payment ; 2. Making protest ; and 3. Giving notice of 'protest. There is another duty placed accompanying the acknowledgment there is an obligation to pay interest, and to pay on demand, this is held to give the paper a negotiable character. Currier v. Lockwood, 40 Conn. 348 ; Sackett v. Spencer, 29 Barb. 180. 3. The event of payment must be certain, or the time must be fixed in some man- ner. Any condition fixed upon as determining the fact or the time of payment, takes from the paper the quality of negotiability. Thus, an engagement to pay " as soon as the crop can be sold, or the money raised from any other source," is not a promissory note. Nunez v. Dautel, 19 "Wall. 592. And it will not be payable, if payment is to be only out of a particular fund. Edwards on Bills, 143. But if the event upon which payment depends must happen, it will not deprive the note of negotiability, as where it depends on one's death. Goode v. Colehan, 2 Stra. 1217 ; Bristol v. Warner, 19 Conn. 7. It will be negotiable if two events are named, one being certain to occur. Stevens v. Blunt, 7 Mass. 240. 4. The bill or note must be payable in a certain amount of money. It will not be negotiable if payable in merchandise, or any specific articles. Chitty on Bills, 132 ; Lawrence v. Dougherty, 5 Yerg. 453. And if payable in notes, bank-bills, or currency, it will be merely a special contract, and not negotiable paper. Mc- Cormick v. Trotter, 10 S. & R. 94 ; Irvine v. Lowry, 14 Peters, 293 ; Omohundro v. Crump, 18 Gratt. 703. An author says : "Money alone is legal tender, and only the note which represents money should be held negotiable. It should be expressed simply as payable in dollars, which have a definite signification, fixed by law." Daniel on Neg. Instruments, Sec. 56. In New York, where a note was given for a certain sum "payable in-Canada currency," it was held not nego- tiable : Thompson v. Sloan, 23 "Wend. 71 ; but in Michigan, it was held, a note payable " in Canada currency 4^ is negotiable, it being construed to mean the lawful money in Canada, and this is the more approved doctrine. The amount must be fixed or ascertainable. So, if it be to pay money, " and all fines accord- ing to rule," it is not a negotiable note. Ayrey v. Fearnsides, 4 M. & "W. 168. And if the instrument be to pay money, and also to "deliver up horses and a wharf," it is not negotiable. Martin v. Chauntry, 2 Stra. 1271. 5. The payment must be made to a definite person, cither to his order or bearer. If made only to a person, without the words "bearer" or "order," it is merely a contract with that person alone, which would then be merely an assignable chose in action. Story on Bills, Sees. 119, 199. If payable "to bearer A," it is the same as if simply payable to A, and is, therefore, not negotiable. Warren v. Scott, 32 Iowa, 22. No precise form of words is necessary to impart negotia- bility. The words "order" and "bearer" are convenient and expressive, but they are not the only words which will communicate the quality of negotiability ; but some equivalent words should be used. Raymond v. Middleton, 29 Penn. St. 530. If the name of the payee be not expressed, yet if there be sufficient to designate him, it will be sufficient on the maxim Certum est quod certum reddi potest. Adams v. King, 16 111. 169 ; Moody v. Threlkeld, 13 Ga. 55 ; Knight v. Jones, 21 Mich. 161. 77 NEGOTIABLE INSTRUMENTS. 87 upon them, though not in all States, to keep a record of their acts in respect to these several duties ; but this has already been referred to in a former chapter. 1 We shall treat these duties in this chapter, and first of presentment. I. PRESENTMENT FOR ACCEPTANCE. 77. What should be presented for acceptance. A bill or order draAvn by one person upon another, which is paya- ble at a certain number of days after sight or demand, should be presented for acceptance to the drawee ; and this must be done without unreasonable delay, or the drawer and indorsers will be discharged. 2 Whether a bill payable at sight should be presented for ac- ceptance is a question upon which there has been a difference of opinion. Because of this difference and uncertainty the matter is now determined by statute in nearly all of our States. 3 When- ever a bill payable at sight is allowed grace, then it is necessary to present it for acceptance in order to fix the time of payment. It has been the opinion in England that days of grace should be allowed. 4 Bills payable on demand, or at a certain number of days after date, or after a certain event, it is agreed are not entitled 1 See Chap, in, Sec. 27. 2 Allen v, Suydam, 20 Wend. 321; Aymar v. Beers, 7 Cow. 705; Robinson v. Ames, 20 Johns. 146; Story on Bills, Sec. 228. 3 Perhaps nothing can better illustrate the uncertainty of our commercial law in the various States, than our statutory rules regarding bills payable at sight. From a careful examination of our statute law, it appears that in more than one-third of our States sight bills have no grace allowed. These States are : California, where no grace is allowed (Civil Code, Sec. 3181); Colorado (Rev. Stat. p. 88); Connecticut (Rev. Stat. of 1874, p. 344); Delaware (Rev. Code of 1873, p. 355); Georgia (Code of 1873, Sec. 2784); Illinois (Rev. Stat. of 1874, p. 720); Louisiana (Rev. Stat. of 1870, p. 70); Missouri (1 "Wagner, 217); New York (2 Rev. Stat. Cth Ed. p. 1163); Ohio (1 Swan. & C. 862); Pennsylvania (Bright- ley's Purdon's Dig. p. Ill); Rhode Island (Rev. Stat. p. 270); Tennessee (2 Tay- lor, p. 19G5); Vermont (Rev. Stat. p. 508). ^ Such is held by Chitty, (13th Am. Ed.) 426; Bayley on Bills, 151; Byles on Bills, (Sharswood's Ed.) 336; Edwards on Bills, 523. In "Webb v. Fairmauer, 3 M. & W. Bolland, B., said: "In the case of a bill payable at sight, it has been decided over and over again that the holder cannot sue upon until after the ex- piration of the third day after sight." The same was the view expressed in Coleman t. Sayer, 1 Barn. 303; Dehers v. Harriott, 1 Show. 163. In Jansen . Thomas, Lord Manslield said: "I believe there is great doubt as to the usage about the three days' grace." It was denied that such bills are entitled to grace in Trask v. Martin, 1 E. D. Smith, 505. 88 NEGOTIABLE INSTRUMENTS. 78 to grace, and need not therefore be presented for acceptance. 1 However, it is the usual and safest way to present a bill payable a certain time after date, in order to obtain the greater security of the drawee's acceptance ; and if acceptance be refused, the bill must then be protested in the same manner as if it were payable so many days after sight. 2 The necessity of a present- ment for acceptance does not exist when the words " acceptance waived " are embodied- in a bill. 3 78. By and of whom presentment should be made. The holder, or his authorized agent as a notary may be has a right to present the bill for acceptance. The party who has possession of a bill is presumed to have the right to demand acceptance or payment. 4 When the bill is drawn upon persons who are not partners, it must be presented to all ; for a holder is not bound to receive the acceptance of one or a portion. 5 When a bill is drawn on a firm, a presentment to and an accept- ance by one partner will be sufficient. 6 The person presenting a bill must be careful to ascertain whether application be made to the right party or his au- thorized agent for acceptance. Thus, in an action against the drawee on a failure to accept, it appeared that the witness had carried the bill to a place pointed out to him as the drawee's house, and there offered it to a person in a tan-yard, who re- fused acceptance ; the witness did not know the drawee person- ally, and could not swear that it was he to whom he offered the bill, or that the person, represented himself to be the drawee, and it was held that the evidence of presentment to the drawee was insufficient. 7 A clerk found at the counting-room of the drawee is a proper iBank of "Washington v. Triplett, 1 Pet. 25; Bacliellor v. Priest, 12 Pick. 399; Bank of Bennington v. Raymond, 12 Vt. 401; Smith v. Roach, 7 B. Mon. 17; Walker . Stetson, 19 Ohio St. 400. 2 Story on Bills, Sec. 228; Glasgow v. Copeland, 8 Mo. 268; U. S. v. Barker, 4 "Wash. C. C. 4G4; Allan v. Mawson, 4 Camp. 115. 3 Webb v. Mears, 9 Wright, 222; English v. Wall, 12 Rob. La. 132; Liggett v. Weed, 7 Kan. 276. 4 Bank of Utica v. Smith, 18 Johns. 230; Freeman v. Boynton r 7 Mass. 483. 6 Story on Bills, Sec. 229, note 9; Harris v. Clark, 10 Ohio, 5. Story on Notes, 239; Holtz v. Boppe, 37 N. Y. 634. * Cheek v. Roper, 5 Esp. 175. 79 NEGOTIABLE INSTRUMENTS. 89 party to whom to present a bill ; and it is not necessary to show that such clerk was the duly authorized agent of the drawee. 1 Good authorities hold that, in case of the drawee's death, a presentment should be made to his personal representatives, if they are accessible, and within a reasonable distance. 2 But against this view, Edwards on Bills says : " Upon principle, it is not easy to see upon what ground the holder is bound to pre- sent a bill drawn upon the deceased to his executor or adminis- trator for acceptance. An acceptance fcy the representative, binding himself personally, is not according to the tenor of the bill ; neither is an acceptance qualified so as to render him re- sponsible to pay out of the assets that may come into his hands." 3 This argument is undoubtedly sound, and it would therefore follow that, in case of the drawee's death, the bill might be protested, and recourse had against the other parties. 4 If the drawee have absconded, it should be presented at his last domicile or place of business. 5 79. The place where the presentment should be made may be general or particular particular, when a place is specified on the bill. It was a question once much debated whether, when a bill was drawn on a person at a specified place, the holder was bound to present it there only, and if not ac- cepted there, to have it protested. Now, it seems reasonable that the object of indicating a place is to enable the holder more conveniently to find the drawee, and that if he be not there he should be sought for elsewhere. There may be many causes which would take one away from his place of business or resi- dence, and it would seem a hard rule which would excuse an inquiry for him anywhere else. It was once decided, in the House of Lords, that a demand at the place specified must be made, and nowhere else ; 6 but against this was the opinion of 1 Nelson v. Fotterall, 7 Leigh, 180; Stainback v. Bank, 11 Gratt. 260. 2 Chitty, (13th Am. Ed.) 318; Story on Bills, 236. 8 P. 401. 4 Daniel on Neg. Insts. Sec. 458. 5 Groton v. Dalheim, 6 Greeiilf. 476; Bayley on Bills, 218. If he only have re- moved, the holder must endeavor to find out to what place he has removed, and make the presentment there. Collins v. Butler, Stra. 1087. See the second part of the chapter on " Presentment for Payment." 6 Pvowe i'. Young, 2 Bligh, 391. 90 NEGOTIABLE INSTRUMENTS. 80-81 eight of the twelve judges to whom the question was referred. The controversy was ended by statute adopting the view held by the judges contrary to the House of Lords. 1 The same view has been adopted in this country. 2 If the drawee has his dwell- ing house in one part of the town or city, and his place of busi- ness at another, it may be made at either place ; and if the drawee resides in one town, and has his place of business at an- other, the holder may present the bill at either." 3 It has been held that if the drawee has moved out of the State of his former residence, either into a foreign country or into another State, a presentment to him is not necessary. 4 80. The mode of presentment. " The term ' present- ment ' imports not a mere notice of the existence of a draft, which the party has in his possession, but the exhibiting of it to the person on whom it is drawn, that he may see the same, and examine his accounts or correspondence, and judge what he shall do ; whether he shall accept the draft or not." 5 But even a refusal, without actually having the bill produced, will be good ground of protest. 6 But before acceptance, the drawee has a right to ask for the bill, and may decline accepting it, save in the usual mode of writing his name across it ; but unless, as is usual, a statute requires the acceptance to be in writing, a per- son can give a parol acceptance, and he cannot afterward refuse to be held, on the ground that he did not see the bill. 7 81. Time -within -which presentment made. It has been stated that an unreasonable delay to present a bill for ac- ceptance will cause the indorsers and drawer to be discharged, for the reason that the drawee may have been abundantly able to meet the bill when drawn, or soon afterward, and by reason of the laches of the holder the drawer and indorsers were pre- vented from being active to secure themselves. But the great 1 1 and 2 Geo. IV, Chap. 78. 2 1 Parsons, N. & B. 305-11; Story on Bills, Sees. 355-357; Edwards on Bills, 426,428. 8 Story on Bills, Sec. 236. 4 Magruder v, Bank of Washington, 9 Wheat. 698. 6 Fall River Bank . Willard, 5 Mete. 216. 6 Fisher v. Beckwith, 19 Vt. 31 ; Cannichael v. Bank, 4 How Miss. 667. 7 Fall River Bank v. Willard, 5 Mete. 216. 82 NEGOTIABLE INSTRUMENTS. 91 difficulty will be to ascertain what period of time will be con- sidered unreasonable. It is very evident no precise rule "can be made to. ascertain it, as it must depend upon a variety of cir- cumstances which it is impossible to foresee or calculate. 1 On the whole, it is agreed, it must be a question for a jury, in consideration of all the circumstances, whether the delay was unreasonable or not. 2 But it may, when the facts are not dis- puted, be decided as a question of law. 3 82. Excuses for delay in presentment. If the holder put a bill into circulation, there is not the same strictness in re- quiring a presentment for acceptance. Even a delay of a year, under these circumstances, was held not to be unreasonable. 4 But if the holder retain the bill in his possession, and thus keep it from circulation, he makes it his own, and will have no remedy against antecedent parties, from or through whom he derived title. 5 The difficulty of a communication with the drawee may be a proper excuse for a delay in presentment. In one case, a month's delay was held too much, when the distance between the residence of the drawer and the drawee was only eighteen miles, with communication three times a week between them. 6 Where a bill was drawn in London on Lisbon at thirty days, circulated through Paris and Genoa, and presented after a delay of three months and ten days, it was held there was no laches. 7 Where a sight draft on New York was indorsed to the plaintiff in Wisconsin, and was not mailed to New York for presentment until a period of fourteen days, it was held prima facie evidence of laches. 8 The falling or rising of the rate of exchange may be consid- ered to determine whether there was unreasonable delay in pre- sentment. If the exchange were steady or rising, it is consid- ered more unreasonable to wait, whereas if it were falling it might be presumed the holder would wait a longer time. 9 Any 1 "Wallace v. Agry, 4 Mason, 336. 2 Fry v. Hill, 7 Taunt. 397 ; Nichols v. Blackmore, 27 Tex. 586. SBigelow, J., in Prescott Bank v. Caverly, 7 Gray, 217 ; 1 Parsons, K &B. 340. 4 Muilman v. D'Equino, 2 H. Bl. 565. SByles, (Shar. Ed.) 302 ; Gowan v. Jackson, 20 Johns. 176. eDumontu. Pope, 7 Blackf. 367. 7 Goupy v. Harden, 7 Taunt. 397. 8 Walsh v. Dart, 23 Wis. 334. Hellish v. Bawdon, 9 Bing. 416. 92 NEGOTIABLE INSTRUMENTS. 83-84 reasonable cause, such as sickness, inevitable accident, or a state of war or other uncontrollable-event, will excuse delay in presentment for acceptance. 1 83. As regards the time of day when presentment should be made, it is held that it is proper to present a bill at any time during the hours of business ; and the hours of busi- ness will depend, in, a great many cases, upon the character of the drawee's occupation. For instance, the reasonable hours for a bank range from ten until three or four in the afternoon, or according to the hours when it is open for business; while, in the case of a tradesman, eight o'clock in the even- ing would not be too late to present a bill for acceptance. 2 And, no matter what the hour may be, if the drawee or his agent give a proper answer either an acceptance or refusal it will be sufficient. 3 But if application be at an unseasonable hour, and that reason be offered for refusing acceptance, such reason is valid. 4 And a known custom or usage, in a town or city where the presentment is to be made, will govern in determ- ining the proper hour for presentation. 5 . Thus it is the custom in some cities, as for instance in San Francisco, for many large business houses and all the banks to close at one in the afternoon on Saturday, and this local custom must govern and be observed as regards the time for present- ment. 84. Delay by agent more strictly regarded. An agent is held to a stricter accountability for delay in the presentment of a bill for acceptance. The leading case on this subject may iAymar v. Beers, 7 Cow. 705 ; U. S. v. Barker, 1 Paine C. C. 156 ; Hilton v. Shepherd, 6 East, 16. The codes of foreign countries specify the time within which bills drawn pay- able after sight must be presented for acceptance. The French Code gives six months, one year, and even two years, according to distance. The same pro- visions are made by the Italian, Dutch, Portuguese, and Spanish Codes. By the Civil Code of California, Sec. 3134, a definite rule is given. It is there provided : " The apparent maturity of a bill of exchange payable at sight or on demand is : 1. If it bears interest, one year after its date ; or, 2. If it does not bear interest, ten days after its date, in addition to the time which would suffice, with ordinary diligence, to forward it for acceptance." 2 Chitty on Bills, 313; Bailey v. Bailey, 2 Campb. 517. Parker v. Gordon, 7 East, 385; Id. 316. * Story on Bills, Sec. 236. ^ tv^ * 6 Story on Notes, Sec. 135. g* ^^ **^ 85 NEGOTIABLE INSTRUMENTS. 93 be considered to be Allen v. Suydam, 1 where it was held, after thorough argument and examination, that an agent who received a bill, payable after date, for collection, and which had not been accepted, was bound to present it without unreasonable delay, and having delayed for seventeen days to do so, he was liable to his principal for all damages he might have sustained by his delay. This case is not approved by Professor Parsons, who argues that the agent ought not to be held to any stricter rule in this respect than his principal. 2 But this view, as held in the New York case, is generally accepted. In Scotland, an agent was held liable for having neglected to present a bill for accept- ance for four days, when the drawee refused to accept. 3 In another case, a bill, payable at Glasgow three days after date, was sent to agents in that city for collection. Before the day of payment the drawer failed, and the Glasgow bank refused to accept. It was not clear whether the bank would have accepted the draft if it had been immediately presented, for the bank had no funds of the drawer, and the practice had been to make provision for such drafts at the day of payment. In an action against the agents, the Court held " that, as agents, they were bound to present the bill for acceptance immediately." 4 85. Acceptance, how given. By the common law, an acceptance might be made by parol. It is the act of signifying one's assent, which may be done by word or by writing ; but since it is so difficult to prove or show an acceptance when it is orally given, commercial usage all over the world now requires an acceptance to be in writing ; and this is also required by statute in England, and in most of the United States. The acceptance is usually given by writing the word " ac- cepted " across the face of the bill, and adding the acceptor's signature. In a case where the drawee wrote his name alone, it was held inadmissible for him to show that he refused to write " accepted," for the name alone imported it. 5 Sometimes the acceptor, as a matter of precaution, repeats in figures the amount of the bill. And it has been held that where the stat- 120 Wend. 321. 2 1 Parsons N. & B. 346-7. 8 Brooke, Office and Practice of a Notary, p. 55. * Bank of Scotland v. Hamilton, 1 Bell. Com. 409. 5 Kauffman v. Barrenger, 20 La. An. 419. So in Spear v. Pratt, 2 Hill, 582. 94 NEGOTIABLE INSTRUMENTS. 85 ute law requires that acceptance shall be in writing on the bill, and signed by the party to be charged thereby, or his agent, such a requirement is satisfied by the acceptor writing his name across the face of the bill. 1 It is usual for the acceptance to be written across the bill, but it may be written in any other place. Thus a writer says : " The position of the drawee's subscrip- tion seems immaterial, provided it be there, for it may be writ- ten above as well as, below that of the drawer ; and as it has been held that an indorsement may be written on the face of the bill, an acceptance may, as is sometimes the case, be in- dorsed." 2 But the writing must be on the bill. Thus, under the New York statute, it has been held that where A drew a bill on B, in New York, and procured it to be discounted at a bank, and B afterward wrote a letter to A, accepting the bill, and A ex- hibited the letter to the officers of the bank, that the bank could not maintain an action against B, on his acceptance, under the New York statute. 3 The acceptance must be by the person to whom the bill is ad- dressed, otherwise it is a nullity, except in case of an acceptance for honor. 4 Thus, when a bill was addressed by John Hart to " Mr. John Hart," payable to me or order, and there was writ- ten across its face, " Accepted, H. J. Clarke," it was held that Clarke could not be sued as an acceptor, Coleridge, J., saying : " Acceptance can only be made by the party addressed, or for his honor. Here, the last is not pretended, and the first cannot be presumed." 5 When an acceptance is made by an agent, the holder has a right to inquire into the agent's authority for this purpose, and may refuse to take the acceptance when that authority is not definite, and treat the bill as dishonored. 6 1 Bassett . Haines, 9 Cal. 261. 2 Thomson on Bills, 220. "Worcester Bank v. "Wells, 8 Met. 107. * Walker v. Bank, 9 N. Y. 582. 6 Davis v. Clarke, 6 Ad. &. El. K S. 16. 6 Coore v. Callaway, 1 Esp. 115; Byles, 113. "When an acceptance is made by an agent, it should be in the name of his prin- cipal. Bayley on Bills, 52. An acceptance by a partner, in his individual name, of a draft drawn on firm, will bind firm, Parnell v. Phillips, 55 Ga. 618. 86-87 NEGOTIABLE INSTRUMENTS. 95 86. Statutory provisions regarding mode of accept- ance. By the common law, a parol acceptance would be valid ; and so it will now be, except in those States where it is other- wise provided. In a late decision in the Supreme Court of the United States, 1 it is held that, unless forbidden by statute, it is a rule of law, generally, that a promise to accept an existing bill of exchange is an acceptance thereof, whether the promise be in writing or by parol. But many of our States have expressly provided by statute that an acceptance of a bill or draft must be in writing. Thus, in Alabama the acceptance is required to be in writing on the bill ; but a written promise to accept is good. 2 So in Arkansas ; and if the writing be on any other paper it will not bind the acceptor, except where one on the faith thereof receives the bill. 3 Such is substantially the law of Cali- fornia 4 and Kansas. 5 In Michigan, the statute provides that " no person within this State shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in wriling, signed by himself or his lawful agent." f There is a similar pro- vision in the statutes of Minnesota and Missouri. 7 And in the latter State it has been decided that the drawee of a bill is not liable upon his verbal acceptance, or promise to pay the bill. 8 The acceptance must be in writing in New York, Nevada, Ore- gon, and Wisconsin. 9 87. Time given to drawee for acceptance. The com- mercial law generally pertnits a drawee a certain period of time to consider before giving his acceptance ; for it is assumed the drawee should examine the state of his accounts before giving an acceptance. Twenty-four hours is the usual period allowed 1 Scudder v. Union Nat. Bank, 1 Otto, 406. In this case it was shown that in Illinois a parol promise to accept a bill of exchange was valid, there being no statute in that State requiring the acceptance to be in writing. 2 Code, Sees. 1840-1. 3 Gantt's Dig. Sec. 549. * Civil Code, Sees. 3193, 3196. 5 Gen Stat. p. 45. 6 1 Comp. Laws, p. 516. U.Bissell, p. 714; 1 Wagner, p. 214. 8 Rousch v. Duff, 35 Mo. 312. 9 2 Rev. Stat. New York, 6th Ed. 1160; Compiled Laws of Nevada, Sec. 14; Gen. Laws, Oregon, p. 718; 1 Taylor's Stat. Wisconsin, 835. 96 NEGOTIABLE INSTRUMENTS. 88 for this purpose. 1 But if the drawee refuses to accept within the twenty-four hours, the holder has a right to protest im- mediately. 2 This is now regulated by statute, to a. great extent, and in a note will be found the statutory provisions on this subject. 3 88. A partial or conditional acceptance. A holder may at his discretion accept a partial or a conditional accept- ance ; but in such a case he is bound to notify the previous parties. He is not bound to take any acceptance different from the tenor of the bill, and if not so accepted, he has the right to protest it. 4 But it is seldom a holder is willing to take an acceptance of this character, and the general course will be to protest a bill if not accepted exactly as to the tenor in which drawn. An acceptance which is conditional is one such as to pay " when in funds," to pay " when goods consigned to me are sold," and the like. In case of a suit on this kind of accept- 1 Ingram v. Foster, 2 Smith, 243; Bellasis u. Hester, 1 Ld. Raym. 281; Connelly v. McKean, 64 Penn. St. 113; Case u. Burt, 15 Mich. 82; Overmans. Bank, 3 Vroom, 5(53. 2 Chitty on Bills, 279. 8 The French law allows the drawee twenty-four hours for consideration (Code of Com. Sec. 125). The German law authorizes the holder to ask im- mediate acceptance (German Law, 18). The following States by statute allow a drawee twenty-four hours to decide : ALABAMA. (Rev. Code, Sec. 1844.) If kept for twenty-four hours, the bill is considered accepted. ARKANSAS. (Gantf s Dig. Sec. 554.) The same provision. CALIFORNIA. If the drawee requests it, the bill must be left with him until the same hour of the next day, to which time he may postpone his acceptance or refusal (Civil Code, Sec. 3186). KANSAS. (Rev. Stat. p. 115.) Must give an answer to the demand within twenty-four hours, otherwise the bill is deemed accepted. MASSACHUSETTS. (Act of April 4th, 1860.) Any person upon whom a bill of exchange or draft is drawn, which requires acceptance, shall have until two o'clock in the afternoon of the business day next succeeding the first presenta- tion thereof in which to decide whether or not he will accept the same : pro- vided, however, that all bills of exchange or drafts, which may be for cause held over one day, shall when accepted date from the day of presentation. MISSOURI. (1 Wagner, 215.) Twenty-four hours allowed. NEW YORK. Every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, who shall destroy such bill, or refuse within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, shall be deemed to have accepted the same. 2 Rev. Stat. 6th Ed. 1161. * Chitty on Bills, 301 ; Edwards on Bills, 430. 89 NEGOTIABLE INSTRUMENTS. 97 ance, the burden will be on the plaintiff to show a performance of the condition before he can recover against the acceptor. 1 By receiving a qualified acceptance, all antecedent parties are discharged, unless the holder has obtained their consent. 2 So the holder may take a partial acceptance, but he will discharge the drawer and indorsers unless he protests as to the residue, for the acceptance is only good as to the part for which ac- cepted. 3 Whenever an acceptance is conditional, the conditions must appear on the face of the paper ; otherwise, parties into whose hands the paper may come, without notice, will not be bound by the conditions. 4 89. Acceptance supra protest. It sometimes happens that a party, for the honor of some one whose name is on a bill, comes forward and gives an acceptance supra protest, or for honor. But first, it is necessary to protest the bill on the failure of the party to whom addressed, or to another au besoin to ac- cept. 5 This kind of acceptance is given in this manner : the acceptor supra protest appears before a notary public, witnesses and declares that he accepts such protested bill in honor of the drawer or indorser, and will pay it at the appointed time. 6 He then subscribes his name to the words, " Accepted, supra protest, for the honor of A B." When an acceptance of this character is made, the party making it should at once notify the party in whose favor he has made the acceptance. 7 The drawee may be an acceptor supra protest, and may re- fuse acceptance on account of the party requesting. He will then accept for the honor of some indorser on the bill. 8 There may be several acceptors supra protest ; one may accept for the !Nagle v. Homer, 8 Cal. 358; Liggett v. Weed, 7 Kan. 273; Gammon v Schmoll, 5 Taunt. 344. 2 Byles on Bills, 186; Story on Bills, Sec. 204. 8 Weggersloffet?. Kerne, IStra. 214; Thomson on Bills, 226. 4 U. S. v. Bank of Metropolis, 15 Pet. 377; Story on Bills, Sec. 240. 6 Story on Bills, Sec. 256 ; Hoare v. Cazenove, 16 East, 391 ; Williams v. Ger maine, 7 B. & C. 468. Daniel on Neg. Instruments, 387 ; Gazzam v. Armstrong, 3 Dana, 554. ' Story on Bills, Sec. 259. Id. NOTARIES 7. 98 NEGOTIABLE INSTRUMENTS. 90 drawer, another for one or more of the indorsers. 1 If the ac- ceptor omits to state for whose honor the acceptance is made, it will be construed to be for the honor of the drawer. 2 If the acceptance be for the honor of the drawer, the ac- ceptor will be liable to all the indorsees, as well as to the holder ; if in honor of a particular indorser, then to all subsequent in- dorsees. 3 H. PRESENTMENT FOR PAYMENT. 90. By whom demand of payment made. What was said in regard to presentment for acceptance, in the first part of this chapter, is equally applicable to presentment for payment, and without going over the same ground, we shall here make reference to the section wherein this subject was treated. 4 In case of the death of the holder of a bill or note, the demand of payment should be made by his personal representatives. And if a person has become bankrupt, and his property is in the hands of an assignee, he is the person to make demand for pay- ment. The possession of a bill or note, payable to bearer, or indorsed in blank, is prima facie evidence of the right of the holder to demand payment ; and payment to such person will be a valid payment, unless it is known that he has acquired possession wrongfully. When an instrument is specially indorsed for col- lection to an agent, it is fair to presume the party presenting it is authorized to demand payment. Even when placed in the holder's hands as agent, and not indorsed by the payee, a pay- ment to the holder under such circumstances would be valid, but if negotiated it must be indorsed. 5 But, supposing the in- strument be not indorsed by the payee, or be indorsed by him specially to another, and the holder to have possession without an indorsement to him, has the maker or acceptor a right to make payment to the person presenting the bill or note, if he has no proof of the agency of the holder ? and will a payment under these circumstances be a valid payment? Chitty seems to in- i Chitty on Bills, 376. s Cliitty on Bills, 352. 2 1 Parsons N. & B. 313. < See Sec. 77. 6 Doubleday v. Kress, GO Barb. 19G. 91 NEGOTIABLE INSTRUMENTS. 99 timate that such a payment would be valid ; 1 and in a very early case it is said : " If a wrong person do show the , bill, by the custom of merchants this is a good payment." 2 But it is now settled that payment under these circumstances is not valid. 3 91. Demand by notary or clerk. Before a protest can be made for non-payment, a notary must demand payment of the bill or note. But the question very frequently arises whether a protest founded on a demand made by a notary's clerk or deputy is good. By the English practice, the clerks of notaries demand payment, and protest can be founded on such demand. 4 But, even there, the right of a notary's clerk to make presentment has been very much questioned. 5 But in the United States it is generally held that, at common law, the notary himself must make the demand of a foreign bill. In some States, there is a usage permitting a demand to be made by a clerk, and that will there prevail, while in others, as in Louisi- ana, a notary's deputy is authorized by statute to make a de- mand. 6 In New York, it has been lately held, in two well-considered cases, that it is improper to found a protest on a demand made by a notary's clerk, unless there is a well-understood usage authorizing it. 7 iChitty on Bills, 365. 2 Anon. Styles, 366. 8 Thompson on Bills, 246; Daniel on Keg. Instruments, 427 ; Doubleday v. Kress, 50 N. Y. 410. 4 Rodgers v. Stevens, 2 T. R. 713; Orr v. Maginnis, 7 East, 358; Gale v. "Walsh, 5 T. R. 239. Brooke says: "If a foreign bill should not be paid at maturity, then, by the law merchant, it is necessary to have it protested by a notary for non- payment; and it is presented either by a notary or by his clerk, (most commonly by his clerk) and it is then noted, and a protest is prepared, signed by the notary and passed under his official seal." Office and Duty of a Notary, p. 128. 5 In Leftly v. Mills, 4 T. R. 170, Buller, J., in a dictum, doubted the right of a notary's clerk to make a proper demand; and in Vandewall v. Tyrrell, 1 Mood. 6 M. 87, (22 E. C. L.) Buller's dictum was approved; and followed in New York, in Onondaga Co. Bank v. Bates, 3 Hill, 57. 6 Fassin v. Hubbard, 55 N. Y. 465; Carter v. Brown, 7 Humph. 548. ' Commercial Bank r. Varnum, 49 N. Y. 275; Gawtry v. Doane, 51 N. Y. 85; So in Missouri : Commercial Bank v. Barksdale, 36 Mo. 563. In Alabama : Done- gan v. Wood, 49 Ala. 242. In Kentucky: Chenowith v. Chamberlain. 6 B. Mon. CO. In Mississippi : Ellis v. Com. Bank, 7 How. 294. 100 NEGOTIABLE INSTRUMENTS. 92 In Ocean National Bank -y. Williams, 1 it is held that a usage for notaries to present by deputy a foreign bill of exchange for payment, is not proved by evidence of the general practice in case of "bills," unless it distinctly appears that the practice includes foreign bills. In case of inland bills and promissory notes, the law merchant does not require them to be protested ; but by statute, in almost all our States, this may be done, and whenever protested they must, as in the case of foreign bills, be demanded by the notary in person before he can make a proper protest. 2 A son of the holder of paper, if he be a notary, may act as the agent of his father in his notarial as well as in any other lawful capacity. 3 92. To whom presentment for payment should be made. In the usual course, a demand for payment is made on the drawee or acceptor of a bill, or the maker of a note, or an authorized agent of either, and this demand may be made at the usual abode or place of business of the person, not neces- sarily from himself, but it may be from any one found there his wife, clerk, agent, or servant. 4 There is more indulgence given to a drawee in waiting for his acceptance than to a person from whom payment can be de- manded. In the first instance, a drawee may not be aware of the existence of the bill, and a holder therefore is bound to wait a reasonable time, and use reasonable diligence in finding him ; but in the case of one who has accepted, and made thereby a positive engagement tojpay, no such indulgence is called for or granted. He is expected to be fully aware of the nature and period of his obligation, and to provide funds at the time and place agreed upon ; and whenever an application is made by a holder at the proper time and at the designated place, he should expect the engagement to be promptly met, or otherwise he may at once protest. 6 1 102 Mass. 141. 2 Sheldon v. Benham, 4 Hill, 129. Eason v. Isbell, 42 Ala. 456. 4 Matthews v. Haydon, 2 Esp. 509; Stainback v. Bank of Virginia, 11 Gratt. 260; Kelson v. Fotterall, 7 Leigh, 180; Draper v. demons, 4 Mo. 52; Stewart v. Eden, 2 Caincs, 121. 5 See, on this point, Story on Bills, Sec. 350; Daniel on Negotiable Instru- ments, Sec. 440. 93-95 NEGOTIABLE INSTRUMENTS. 101 93. In case the acceptor or maker be dead, it will be necessary to present for payment to the representative's of the deceased. 1 But if the bill or note be payable at a particular place it is sufficient to present it there, and if not paid it may be protested. 2 94. In case of partners, a demand from one is sufficient, and if payable generally, a demand from one of the partners, wherever found, is sufficient. 3 If the firm be dissolved from any cause, either through a volun- tary dissolution or in case of bankruptcy, a demand from any one of the partners is sufficient, for the liability continues until all demands are duly satisfied or discharged. 4 In the event of the death of a partner, a demand should be made from the surviving partner or partners, and not from the personal representatives of the deceased, because all liabilities of the firm fall on the surviving partners in the first instance. 5 If, however, the note were made by joint makers, who are not partners, a demand must be made on each, according to what was stated in a former section on presentment for acceptance. 6 In the event of the death of a joint maker, presentment should be made to the survivor, upon whom, according to law, the ob- ligation devolves. If the note were several as well as joint, the demand may be made, as the holder shall choose, upon the survivor, or upon the representatives of the deceased. 7 95. When the acceptor or maker cannot be found, and is supposed to have absconded, application should be made at his last place of residence, and inquiries made for him. If 1 Govrer v. Moore, 25 Me. 16; Magruderu. Bank, 3 Pet. 87; Juniata Bank v. Hale, 10 Serg. & E. 167. If there be no personal representatives, and the note or bill be payable generally, then it must be presented at the last dwelling-house of the deceased. Story on Notes, Sec. 253. 2 Philpot v. Bryant, 1 Moore & P. 754; 3 C. & P. 244; Holtz v. Boppe, 37 N. Y. G34; Boyd's Admr. v. Bank, 15 Gratt. 502. 3 Branch of State Bank v. McLeran, 26 Iowa, 306; Shed v. Brett, 1 Pick. 401. 4 Crowley v. Barry, 4 Gill, 194; Fourth Nat. Bank v. Heuschuk, 52 Mo. 207; Hubbard v. Matthews, 54 N Y. 50; Brown v. Turner, 15 Ala. 632. 5 Cayuga Bank v. Hunt, 2 Hill, 035 ; Story on Bills, Sees. 346-362. Gates v. Beecher, 60 N. Y. 522; Willis v. Green, 5 Hill, 232; Union Bank v. Willis, 8 Met. 504; Arnold v. Dresser, 8 Allen, 435 f Story on Notes, Sec. 256, 102 NEGOTIABLE INSTRUMENTS. 96 the instrument be payable at a certain place, it is only necessary to go there, and if closed, or no one there to answer, nothing more may be done, but protest. 1 If a notary, on presenting a bill or note for payment, find the place of business or residence of the acceptor or maker closed, and no person there to give an answer, it is customary and proper to state the fact in the protest ; and sometimes, in case of the bankruptcy or insolvency of a party, that fact may also be properly stated, though a notary's certificate would not be evidence as to such facts ; but it may tend to account for non-payment. 2 96. Time of making presentment for payment. In ordinary cases, the time is fixed by the note or bill, and where grace is allowed, as it is in almost all our States, it is easy to determine the time. The uncertainty arises when a bill or note is payable at sight or demand. It was shown, in a former section, that on bills pay- able on demand no grace is allowed ; and on those payable at sight, grace is not allowed in more than one-third of our States. 3 But when a note or bill bears interest, and is payable on de- mand, it is evident that there must be some reasonable time with- in which it should be presented for payment ; and what this rea- sonable time may be, cannot be determined according to any uni- form rule. The authorities disagree very seriously as to this reasonable time. Eight months' delay was held to discharge an indorser in one instance, seven months in another, five and a half in another, all the .parties residing in the same place; 4 and, on the other hand, a delay of twenty-one months to present a note payable on demand, with interest, has been held not to discharge the indorser. 6 The cases, however, hold that what this reasonable time shall be, in a given instance, must be a question of fact for a jury to determine, under proper instruc- tions from the Court. 6 But it is also held on good authority 1 Buxton v. Jones, 1 Mann. & G. 86; Barclay v. Bayley, 2 Campb. 527. 2 See, on this point, Sec, 140 in chapter on " Notarial Acts as Evidence." 3 See Sec, 77. 4 Field v . Nickerson, 13 Mass. 131 ; Martin v. Winslow, 2 Mason, 241 ; Sice v. Cun- ningham, 1 Cow. 397. Two years was held too long. Loomis v. Pulver, 9 Johns. 244. 5 Vreeland v. Hyde, 2 Hall, 429. See Daniel on Neg. Instruments, Sec. 609. 6 Hankey v. Trotman, 1 \V, Bl. 1; Field v. Nickerson. 13 Mass. 131; Straker v. Graham. 4 M. & W. 721. 97 NEGOTIABLE INSTRUMENTS. 103 that, when the admitted facts are few and simple, it is a question of law for the Court. 1 Some of our States have, by statute, determined the time when such notes should be presented for payment. 2 97. As to the time of day for demand of payment. When the note or bill is payable at a bank, or at a place of busi- ness having known and established hours for the transaction of business, it should be presented for payment during such hours. 3 But if application be made after business hours, and any one be found on the premises, having authority to answer, who re- fuses payment, a protest can be made on such refusal. 4 A late case in New York is remarkable in this respect. On the day when the note was due, the holder got into the bank after busi- ness hours, (5 P. M.) and found an officer, who answered that there was no money then to pay the note ; but it appeared that during the day the indorser had been to the bank inquiring for the note, 1 Himmelman v. Hotaling, 40 Cal. Ill; Gray v. Bell, 2 Rich, 67; Dennett v. "Wyman, 13 Yt. 485; Darbishire t 1 . Parker, 6 East, 3. In this connection, the opinion of Byles is "well worth attention. He says : " A common promissory note payable on demand differs from a bill payable on demand, or a check, in this respect : the bill and check are evidently intended to be presented and paid immediately, and the drawer may have good reasons for desiring to with- draw his funds from the control of the drawee without delay ; but a common promissory note, payable on demand, is very often originally intended as a continuing security, and afterward indorsed as such. Indeed, it is not uncom- mon for the payee, and afterward the indorsee, to receive from the maker inter- est periodically for many years on such a note, and sometimes the note is ex- pressly made payable with interest, that though the holder may demand pay- ment immediately, yet he is not bound to do so. It is therefore conceived that a common promissory note payable on demand, especially if made payable with interest, is not necessarily to be presented the next day after it has been received, in order to charge the indorser; and when the indorser defends him- self on the ground of delay in presenting the note, it will be a question for the jury whether, under all the circumstances, the delay of presentment was or was not unreasonable." Bills, (Sharswood's Ed.) 338. 2 Thus, in California : "If a promissory note, payable on demand, or at sight, without interest, is not duly presented for payment within six months from its date, the indorsers thereof are exonerated, unless such presentment is ex- cused." Civil Code, Sec. 3248. In Connecticut, (Gen. Stat. 1875, p. 343) a note payable on demand must be presented within four months, or it shall be con sidered overdue and dishonored. a Parker v. Gordon, 7 East, 385 ; Thomson on Bills, 302 ; Story on Bills, Sees 230, 349. 4 Bank of Syracuse v. Hollister, 17 N. Y. 46 ; Bank of TJtica t-. Smith, 18 Johns 230 ; First Nat. Bank v. Owen, 23 Iowa, 185 ; Flint v. Rodgers, 15 Me. 67 ; Gar nett i: Woodcock, 1 Starkie, 475 ; 6 M. & Sel. 44. 104 NEGOTIABLE INSTRUMENTS. 97 and ready to pay it. It was held that due demand had been made. 1 When the person who is bound to pay has not obliged him- self to pay at any bank 6r business place, having regular and established hours of business, a demand may be made of him at his residence, or wherever found, at any reasonable hour of the day. It would, however, be improper to present it after he has retired in the evening. Thus, in Wilkins v. Jadis, 2 the evi- dence was that, between seven and eight o'clock in the evening, a notary's clerk went to the house, rang the bell, and knocked, but no answer was given, and it was held that this was a good presentment. Lord Tenterden (a good authority on commercial law) said in this case : " As to bankers, it .is established, with reference to a well-known rule of trade, that a presentment out of the hours of business is not sufficient ; but in other cases the rule of law is, that the bill must be presented at a reasonable hour ; a presentment at twelve o'clock at night, when a person has retired to rest, would be unreasonable, but I cannot say that a presentment between seven and eight in the evening is not a presentment at a reasonable time." 3 In Farnsworth v. Allen, 4 a presentment was made at 9 P. M., at the maker's residence, ten miles from Boston. He and his family had retired, and it was sufficient. In another case, a pre- sentment at 8 A. M., at the maker's storehouse, was held insuffi- cient. 5 A presentment at 8 P. M., in some cases, has been held sufficient. 6 It is a general rule of-Jaw that when a person enters into a contract he has all the day to perform it on which he obliged himself to pay or discharge it. Then it may be asked, why cannot an acceptor or maker have the whole day within which \ 1 Salt Springs Nat. Bank of Syracuse v. Burton, 58 N. Y. 430. 2 2 Barn. & Ad. 188. 8 In Strong v. King, 35 111. 9, it was held that, after a bill has been presented by the holder or his agent for payment, it may again be presented by a notary for the purpose of making a protest for non-payment, after business hours on the same day. "Where a notary agrees to present a bill a second time, a protest without such second presentation is unauthorized. Case v. Burt, 15 Mich. 82 * 4 Gray ,453. 5 Lunt v. Adams, 17 Me. 230. 6 Trigg3 v. Neunham, 1 Car. & P. 631 ; Barclay v. Bailey, 2 Camp. 427. A pre- sentation a few minutes before twelve at night would be unavailing. Dana v Sawyer, 22 Me. 244. 98 NEGOTIABLE INSTRUMENTS. 105 to make payment? There cannot be any doubt that a tender up to the last minute of the day ought to be good, so as-to save the party from any damages by protest. Lord Kenyon, in Leftley v. Mills, 1 thought that the acceptor had until the last moment of the last day of grace to pay the bill. So did Parke, J., in Startup v. McDonald. 2 And in Hartley's Case, 8 Abbott, C. J., said : " I think the notice of dishonor given on the day on which the bill is payable will be good or bad as the acceptor may or may not afterward pay the bill. If he does not after- ward pay it, the notice is good ; and if he does, it, of course, comes to nothing." 98. Computation of time. In construing contracts and statutes under the common law, a month is deemed a lunar month ; 4 but in the law merchant a month is construed as a cal- endar month whenever it has reference to negotiable instruments or mercantile contracts. 5 Thus, on a bill or note payable one month after date, and dated the 1st of January, the month will not expire until the first of February, and the bill or note will not become due (allowing three days of grace) until the fourth ; and, according to this rule, if a bill be dated on the 29th, 30th, or 31st of January, payable one month after date, the time will expire on the last day of February, whether it be leap year or not, and the days of grace are to be calculated from thence, 6 which would make it due on the 3d of March. A bill made on the last day of a month is payable on the corresponding day of the next month, if a month after date, and not on the last day of the succeeding month. Thus, a note made on the 30th of September, the last day of the month, is due, if without grace, on the 30th of October, and not on the last day of October. When a bill is payable at a certain number of days after sight, and is accepted, the days are calculated from and exclu- sive of the day of acceptance. And if it be presented on one * 4 T. R. 170. 26 M. & G. 602. s 1 C. & P. 556. 4 Chitty on Bills, 373. 5 Bayley on Bills, 249; Thomas v. Shoemaker, 6 Watts & S. 179; McMurchey v Robinson, 10 Ohio, 496; Lang v. Gale, 1 M. & S. 111. 6 1 Parsons N. & B. 409; Wagner v, Kenner. 2 Rob. La. 120 106 NEGOTIABLE INSTRUMENTS. 99-100 day and accepted on another, the day of acceptance is excluded. 1 The expressions payable " in thirty days," " in thirty days from date," " at thirty days," and " thirty days after date," are syn- onymous. 2 99. Rule regarding Sundays and holidays. In esti- mating the maturity of notes and bills there is a peculiarity about the calculation of grace arising from the fact that grace is a mere indulgence. Thus, when a bill or note, without grace, falls due on a Sunday or holiday, it is not payable until the fol- lowing business day. 3 But when the time expires, including the days of grace, on a Sunday or other non-business day, the bill or note falls due on the day preceding, because, as grace is an indulgence, the debtor cannot require the creditor to extend his indulgence beyond three calendar days. The latest business day within or before the period of grace is the day of payment, even though all grace be excluded. 4 If a holiday or Sunday intervenes, or is the nominal day of grace, it is counted as one of the days of grace. 5 100. The place of presentment for payment. Pro- vided there be no specified place on the instrument where pay- ment is to be made, a demand for payment should be made upon the maker or acceptor at his domicile, place of business, or wher- ever found. 6 But when an instrument is payable at a certain place, presentment there only is necessary, and if not paid, or no one be found to answer, protest may be made, without fur- 1 Mitchell v. De Grand, 1 Mason, 176. In computing time from the day of the date or from a certain act or event, the day of the date is to be excluded unless a different intent is manifested by the instrument or statute under which the question arises. Bemis v. Leonard. 118 Mass. 502. 2 Ammidown v. Woodman, 31 Me. 580. Avery v. Stewart, 2 Conn. G9; Satler v. Burt, 20 Wend. 205; Barrett v. Allen, 10 Ohio, 426. * Story on Bills, Sec. 338; 1 Parsons N. & B. 402. By Sec. 3132, Civil Code of California, it is provided, when a note or bill becomes due on a holiday, it is pay- able on the next business day; but in this State there are no days of grace al- lowed. 6 Woolley v. Clements, 11 Ala. 229. 6 A demand by the holder of a note, payable generally, may be made upon the maker in the street, he having no place of business and raising no objection to the place where the demand is made. King v. Crowell, Gl Me. 244. 100 NEGOTIABLE INSTRUMENTS. 107 ther inquiry. 1 But when no place is designated, a party is re- quired to use diligence in looking up the maker or acceptor ; and if he has removed from his last place of residence or busi- ness, inquiries should be made as to his new residence. The presumption is, that the place where a demand for payment should be made is the place where the maker lived when the note was made ; however, if he remove from the State and take up a permanent residence elsewhere, it is sufficient to present the note for payment at the maker's last place. 2 Notwithstand- ing this presumption, evidence is admissible to show a parol agreement to pay at another place, at the time the note was made. 3 When the maker or acceptor has a well-known place of busi- ness, it is the proper place to make a demand of payment. It would be very unreasonable to have a bill presented at a per- son's private residence under these circumstances, and to do so would show a want of diligence that would not justify a pro- test. 4 But if a person's place of business cannot be found, then a demand should be made at his residence. 5 A presentment, when the party has no place of business, should be made at his dwelling. 6 And so, if a partnership place of business is closed when the note matures, and one of the partners reside in the town or city, a demand at his residence should be made. 7 A note drawn, payable " at any bank in Boston," should be presented for payment at an incorporated bank. 8 A promissory note made payable at a bank in a city may be presented at any incorporated bank there ; it is the duty of the party bound to pay to have funds ready at any bank in such a case. 9 1 By Sec. 3100 of the Civil Code of California, it is provided that " if the instru- ment is, by its terms, payable at a specified place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part." 2 Herrick v. Baldwin, 17 Minn. 209. s 1 Parsons, K & B. 424; Meyer v. Hibsher, 47 N. Y, 265; State Bank v. Hurd, 12 Mass. 171; Thompson v. Ketcham, 4 Johns. 285. 4 1 Parsons, N. & B. 5 Jarvis v. Garnett, 39 Mo. 271. 6 Packard v. Lyon, 5 Duer, 82. " Granite Bank v. Ayres, 16 Pick. 392. 8 Way v. Butterworth, 108 Mass. 509. 9 Maiden Bank v. Baldwin, 13 Gray, 154. 108 NEGOTIABLE INSTRUMENTS. 101-2 101. Mode of demanding payment. It is necessary, when a demand is made, to make an actual exhibition of the in- strument. 1 So, where a demand was made, and the party did not produce the bill, or had it not with him, it was insufficient. 2 But when a demand is made, and no actual exhibition of the paper is required, and a refusal be given based on other grounds, the exhibition of the paper will be considered waived. 3 And when the maker, at t}ie day of maturity, calls upon the holder and informs him of his inability to pay, requesting him at the same time to notify the indorsers, an exhibition would be use- less. 4 It was held, in an early New Hampshire case, that where the note was in a bank a short distance from the maker's house, and the cashier informed the maker that it was there, and re- quested payment, it was a sufficient demand. 5 102. When the paper is payable at a bank, and is there ready to be taken up by the party who is bound to pay, if it is not paid during business hours, it may be considered as 1 Musson v. Lake, 4 How. 262. 2 Draper v. Clemens, 7 Mo. 52; Freeman v. Boynton. 7 Mass. 483; Shawn. Reed, 12 Pick. 132; Nailor v. Bowie, 3 Md. 251. ' Lockwood v. Crawford, 18 Conn. 361; Fall River Union Bank v. Willard, 5 Met. 216; King v. Crowell, 61 Me. 244. By the Civil Code of California, there are specific rules given as to how pre- sentment for payment should be made. By Sec. 3131 it is provided: "Pre- sentment of a negotiable instrument for payment, when necessary, must be made as follows, as nearly as, by reasonable diligence, it is practicable : 1. The instrument must be presented by the holder. 2. The instrument must be presented to the principal debtor, if he can be found at the place where pre- sentment should be made ; and if not, then it must be presented to some other person having charge thereof, or employed therein, if no one can be found there. 3. An instrument which specifies a place for its payment must^ be presented there ; and if the place specified includes more than one house, then at the place of residence or business of the principal debtor, if it can be found therein. 4. An instrument which does not specify a place for its payment must be pre- sented at the place of residence or business of the principal debtor, or wherever he may be found, at the option of the presenter. 5. The instrument must be presented upon the day of its maturity; or, if it be payable on demand, it may be presented upon any day. It must be presented within reasonable hours ; and, if it be payable at a banking-house, within the usual banking hours of the vicinity; but by consent of the person to whom it should be presented, it may be presented at any hour of the day. 6. If the principal debtor have no place of business, or if his place of business or residence cannot, with reasonable dili- gence, be ascertained, presentment for payment is excused." * Gilbert v. Demis, 3 Met. 495. , 6 Tredick v. Wendell, 1 N. H. 80. 102 NEGOTIABLE INSTRUMENTS. 109 dishonored, and notice should at once be given. 1 Sometimes, as a formal matter, a presentation is made, but it is well- .settled that the mere presence of the paper at the bank in which pay- able is sufficient. 2 When the bank owns the paper at the time of maturity, its presence in the bank awaiting payment is pre- sumed, and the burden is on the defendant -to show the contrary. 3 Sometimes the accounts of the promisor are examined, to see if there are funds to meet the paper payable at the bank, but this is unnecessary, any competent evidence being available to show that there were no funds there to meet it, and that no one offered payment. 4 Suppose there were funds in the bank belonging to the promisor, and the bank owned the paper, would it be right to protest when no order was given to appro- priate the funds to the payment of the paper ? It is contended that without a direction the bank is not bound to make an appropriation of the owner's balance for this purpose ; but Parsons holds it would be a good defense if the party had sufficient funds in the bank at the time; 5 and this would no doubt be held as reasonable everywhere. There is a usage in some places, where negotiable paper is left with a bank, for the bank to notify a party, some time before the paper matures, when it should be paid ; and if not paid at the time, it may be considered dishonored. 6 In Maine, the custom is sanctioned by judicial decisions, but it is dis- approved in Xew Hampshire and in Maryland, with an intima- tion that it ought not to be sanctioned. 7 But whenever a usage prevails in a place, a maker or drawer or acceptor is supposed to have had such usage in view, and this will be the presumption of the law unless a contrary mode be expressed. 8 1 Folger v. Chase, 18 Pick. 63; Woodin v. Foster, 16 Barb. 146; "Ward v. North- ern Bank, 14 B. Mon. 351; Fullerton v. Bank of U. S. 1 Pet. 604; Chicopee Bank r. Philadelphia Bank, 8 Wall. 641; Keynolds v. Chettle, 2 Camp. 596; Saunder- son r. Judge, 2 H. Bl. 509. - Merchants' Bank v. Elderkin, 25 N. Y. 178. 3 State Bank r. Napier, 6 Humph. 270; Berkshire Bank r. Jones r 6Mass. 524; Bank of U. S. r. Carmeal, 2 Pet. 543. 4 Daniel on Neg. Instruments, Sec. 657. N. &B.437. 6 Jones v. Fales, 4 Mass. 245; Whitwell v. Johnson, 17 Mass. 449. 7 Daniel on Neg. Instruments, Sec. 658. Mills r. Bank of U. S. 11 Wheat. 431 110 NEGOTIABLE INSTRUMENTS. 103-4 103. What will excuse a failure to demand payment. The same causes which will excuse a presentment for accept- ance will also excuse a presentment for payment, as where, by reason of insuperable obstacles, it is rendered impossible. The circumstances of a general nature which excuse the holder when there has been a failure on his part to make due present- ment of the bill or note to the drawee, acceptor, or maker, or to convey due notice of dishonor to the drawer or indorser, may be : 1. The breaking out of a war between the country of the holder and that of the party to whom presentment should be made. During the continuance of hostilities presentment is excused when intercourse is suspended, but when the hindering cause is removed a presentment must be made. 1 2. Public and positive prohibitions of commercial intercourse between the countries of the holder and that of party to whom presentment should be made. 2 3. The occupation of the country where the parties live, or where the bill or note is payable, by a public enemy obstructing or suspending commercial intercourse. 3 4. Political disturbances interrupting or obstructing the ordinary channels of trade or communication. 4 5. The prevalence of a malignant epidemic disease which suspends the ordinary opera- tions of business. 6 6. Overwhelming calamity or unavoidable accident which obstructs the usual channels of communication. 6 in. PROTEST. 104. Meaning -and effect of. A protest is a solemn official process, required by the law merchant to properly authen- ticate the fact of the dishonor of negotiable paper. It is a declaration, through the medium of a notary, on the part of the holder, against any loss to be sustained by him in consequence of the non-acceptance or non-payment, as the case may be, of a negotiable instrument. The word " protest " signifies to bear 1 House v. Adams, 48 Perm. St. 2G1: Dunbar v. Tyler, 44 Miss. 1; Norrist-.Des- pard, 28 Md. 491 ; James v. Wade, 21 La. An. 548; Harden v. Boyce, 59 Barb. 427. 2 Story on Bills, Sees. 257, 263. Id. Sec. 261. . Shed v. Brett, 1 Pick. 401; Gilbert v. Dennis, 3 Met. 495; 1 Pars. N. & B. 472. 120 NEGOTIABLE INSTRUMENTS. 119 the note ; it may happen to misstate some particular, and yet it will be held sufficient if it is apparent that the party could not have been misled as to the instrument intended. Thus, in a case where the notice described the note in a bank correctly, except as to its date, and it appeared that there was no other note of the makers indorsed by the defendant at the bank, it was held that the notice was sufficient. 1 The entire omission of the maker's name in the notice of dis- honor would be fatal ; 2 but notice to the acceptor, describing the bill as " drawn by you," though the drawer was not named, there being no proof that he had drawn or indorsed any other paper with which it could be confounded, and it being otherwise cor- rectly described, was held sufficient. 3 In a case where the notice to the indorser called the note Jotham Cushing's note, but the name was in fact Jotham Cushman, in an action against the in- dorser the Court directed the jury to find for the plaintiff, if they believed the defendant must, from the notice, have neces- sarily known what note was intended, and this direction was held to be correct. 4 A misdescription of the amount, or of the names of the parties, or the time the paper fell due, will not render the notice defective, provided it is certain to what instrument the notice refers. 6 Thus, a notice was in this form : " $600. Cayuga Bank, Auburn, May 3d, 1848. " SIR : Take notice that S. Warden's note for three hundred dollars, payable at this frank, was this evening protested for non- payment, and the holders look to you for the payment thereof." The amount was misstated, it being in the note $600 ; but it was held sufficient. 6 The decisions go to the extent of holding that a notice to the indorser of a note, simply stating the name of the maker, the 1 Mills v. Bank of U. S. 11 Wheat. 431. See Cook v. Litchfield, 5 Sandf. 340. 2 Home Ins. Co. v. Green, 19 N. Y. 518. GUI v. Palmer, 29 Conn. 54. . 4 Smith v. Whiting, 12 Mass. 6. 6 Carter v. Bradley, 19 Me. 62; Snoww. Perkins, 2 Mich. 238; McCune v. Belt, 38 Mo. 291; Moorman v. Bank of Alabama, 12 Ala. 353. 6 Cayuga Co. Bank v. Warden, 1 Comst. 413; S. P. Bank of Alexandria v. Swan, 9 Pet. 33; Bank of Rochester v. Gould, 9 Wend. 279; Wood v. Watson. 53 Me. 300; Rowan v. Odenheimer. 5 Sm. & M. 44. 120 NEGOTIABLE INSTRUMENTS. 121 amount, and the fact that it was indorsed by the party to whom notice was sent, is sufficient. But if there are any eircum- stances which caused this meager description to mislead the party receiving the notice as, for instance, if he were the in- dorser of two or more notes to which the terms of the notice might equally apply then the notice might be void for uncer- tainty of description. 1 The notice should be signed by some one, as showing at whose instance it was given ; it need not mention him as the holder. 2 120. The fact of dishonor. It is sufficient if it can be reasonably inferred from the notice that the instrument was dishonored, and the fact need not be expressly stated ; but it must appear frpm the instrument, by the use of some word or phrase, that the note or bill was dishonored. The mere state- ment that it has not been paid is not sufficient. 3 More than the fact of non-payment is required ; it should appear that a due presentment was made. Thus, in Page v. Gilbert, 4 Walton, J., says : " A notice to the indorser of a note, which merely in- forms him of the non-payment of the note, and demands pay- ment of him, without stating that payment has been demanded of the maker, or giving any legal excuse for not demanding it of him, is not sufficient to charge the indorser." But the direct statement that the instrument has been " dishonored " is suffi- cient, for that implies the necessary steps to dishonor, a present- ment and demand. 5 So the use of the term " protested " is sufficient to apprise the party of the dishonor. 6 So, when it was stated, " your bill is this day returned with charges," 7 or 1 Daniel on Neg. Instruments, Sec. 979; 1 Pars. N. & B. 473; Story on Bills, Sec. 301. 2 Bradley v. Davis, 26 Me. 45; Gillespie v. Kevill, 14 Cal. 408; Klockenbaum v. Pierson, 16 CaL 375; Walker v. State Bank, 8 Miss. 704; Shed v. Brett, 1 Pick. 401. 3 Dole v. Gold, 5 Barb. 490; Lockwood v. Crawford, 18 Conn. 361; Clark v. El- dridge, 13 Met. 96; Armstrong v. Tliurston, 14 Md. 148; Phillips v. Gould, 8 C. & P. 355; Strange v. Price, 10 Ad. & El. 125; Hartley v. Case, 4 Barn. & C. 339 4 60 Me. 488. 5 Stocken v. Collin, 9 C & P. 653; Lewis v. Gompertz, 6 M. & W. 400. G Wheaton v. Willmarth, 13 Met. 422; McFarland v. Pico, 8 Cal. 636; Eastman v. Tunnan, 24 Cal. 383; Kilgore v. Buckley, 14 Conn. 362; Smith v. Little, 10 N. H. 526; Housatonic Bank r. Laflin, 5 Cush. 546. ' Grudgeon v. Smith, 6 Ad. & El. 499. 122 NEGOTIABLE . INSTRUMENTS. 121 " expenses," 1 or " with charges of protested exchange," 2 it is sufficient. 121. As to notice of demand for payment from the party notified, it is the usual course to insert it ; but it is held that the fact of apprising the party of the dishonor of a certain note or bill inferentially notifies him that he is looked to for payment. Thus, in United States v. Carneal, 3 Story, J., giv- ing the opinion of the Court, says : " A suggestion has been made at the bar, that a letter to the indorser, stating the de- mand and dishonor of the note, is not sufficient unless the party sending it also informs the indorser that he is looked to for pay- ment. But when such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. For what other purpose could it be sent? We know of no rule which requires a formal declaration to be made to this effect. It is sufficient if it may be reasonably inferred from the nature of the notice." The prevailing rule is, therefore, that the mere fact of giving notice to the party implies that he is looked to for payment. 4 But the safer course is to give all the elements of the notice before laid down. It is now decided that it is un- necessary to accompany the notice of dishonor of a foreign bill of exchange with a copy of the protest ; 5 but information of the protest should be sent if the party to whom notice is transmitted resides abroad. 6 1 Everard v. "Watson, 1 El. & B. 801. 2 De Wolf v. Murray, 2 Saadf . 166. In Reynolds v. Appleman, 41 Md. 615, a notarial notice of protest was held sufficient in the following words: "Baltimore, December 23d, 1871 Reynolds & Savin: Please take notice that M. D. Savin, C. F. Abbott's note, dated Balti- more, September 20th, 1871, payable ninety days after date to the order of Rey- nolds & Savin, for $340, payable at the Third National Bank, and by you in- dorsed, is delivered to me by the cashier of the Western National Bank for pro- test, and the same not being paid, payment thereof having been demanded and refused, is protested, and will be returned to the said cashier, and that you will be held liable for the payment thereof." The Court held that, in substance and by fair implication, this notice gave all that was necessary, though it is some- what informal. a 2 Pet. 543. 4 Warren v. Gilman, 5 Shep. 360; Cowles v. Harts, 3 Conn. 517; Townsend v. Lorraine Bank, 2 Ohio St. 345; Bujrgess v. Vreeland, 4 N. J. 71; Story on Notes, Sec. 353. 6 Hooker v. Anderson, 21 Wend. 372; Goodman v. Harvey, 4 Ad. & El. 870; Wallace v. Agry, 4 Mason, 336. Rogers v. Stephens, 2 T. B. 713. 122 NEGOTIABLE INSTRUMENTS. 123 122. The party who gives notice. The holder or his agent is the proper party to give notice. But notice . Farmers' Bank, 1 Ohio St. 206. 6 Burgess v. Vreeland, 4 N. J. 71 ; Hawkes v. Salter, 4 Bing. 715. " Chitty on Bills, 488 ; 1 Pars. N. & B. 515 ; Cuyler v. Stevens, 4 "Wend. 5GG ; Lindo v. Unsworth, 2 Camp. G02 ; Martin v. Ingersoll, 8 Pick. 1. 8 Daniel on Keg. Instruments, Sec. 1043. 134 NEGOTIABLE INSTRUMENTS. 135 one day to notify the fifth, he another day to notify the fourth, and so on. But, in practice, it is usual for all the indorsers to be sent notice simultaneously, when the notary makes protest. In illustration of the rule, it was held that an indorser who re- ceived notice at eight, or half-past eight in the morning, was not bound to send it to a prior party by mail leaving at twelve o'clock the same day. 1 But it is well to observe that the over- diligence of one party will not avail the tardiness of another. Every one of the intermediate parties, so far as he himself is concerned, must show due diligence, or otherwise he will lose his rights. 2 135. Liability of notary in reference to negotiable paper. A notary who fails to make a protest when it is required, or who neglects to give proper notice to parties to be charged in case of dishonor, will be unquestionably liable for the loss occa- sioned thereby. In fact, he stands in precisely the same position as any other agent who may be employed about a particular business, and will be held responsible for his laches and mistakes when loss is occasioned thereby to the party employing him. 3 It is well settled that a bank receiving commercial paper as agent for collection, properly discharges its duty, in case of non- payment, by placing the paper in the hands of a notary public, to be proceeded with in such manner as to charge the parties to it, and secure the rights of the owner ; and the bank is not lia- ble for the failure of the notary public to discharge his duty ; but in such a case the.notary is the sub-agent of the holder, and is responsible directly to him. 4 In Commercial Bank of Ken- tucky v. Varnum, 5 it was decided that where a notary is directed to protest a bill on the wrong day, by a bank who employs him for that purpose, he is not presumed to be a lawyer who is to iBray . Had wen, 5 M. & S. OS. 2 Smith v. Roach, 7 B. Mon. 17 ; American Life Ins. Co. v. Emerson, 4 Sm. & M. 177 ; Carter v. Burley, 9 N. H. 558 ; Mitchell v. Cross, 2 R. I. 439 ; Rowe v. Tupper, 13 C. B. 249 (76 Eng. C. R.) ; Story on Bills, Sec. 294. Marston v. Bank of Mobile, 10 Ala. 284; Allen v. Merchants' Bank, 22 "Wend. 215; Warren Bank v. Parker, 8 Gray, 221. * Bowling v. Arthur, 34 Miss. 41; Com. Bank of Manchester v. Agricultural Bank, 7 Sm. & M. 592; Dorchester & Milton Bank v. New England Bank, 1 Cash. 177. 6 49 N. Y. 2G9. 135 NEGOTIABLE INSTRUMENTS. 135 revise or reverse the decision of his employer as to the character of the bill, and he cannot be held liable for following his instructions. 136 NOTARIAL ACTS AS EVIDENCE. 136 CHAPTER NOTARIAL ACTS AS EVIDENCE. 136. Judicial notice taken of notary's seal. 137. How far notarial acts were evidence under common law. 138. A certificate of protest under the common law. 139. Statutory provisions in regard to certificate. 140. What facts the certificate is evidence of. 141. Character of certificate as evidence. 142. Rebutting the certificate. 143. Notarial certificate, when made out of the State. 144. Sufficiency of notarial certificate. 145. Sufficiency as to residence. 146. As to the manner of giving notice. 147. When notice is sent by mail. 148. The certificate must show notice of dishonor. 149. Need not state at whose request notice was given. 150. Date of certificate. 151. Certificate should be under notarial seal. 152. Presumptions in favor of certificate. . 153. Parol evidence affecting certificate. 154. Records of a deceased notary as evidence. CERTIFICATES OF ACKNOWl^EDGMENT. 155. Character of evidence. 156, When certificate may be impeached. 157. Can be impeached for fraud or collusion. 136. Judicial notice is taken of the seal of a notary public, as an officer recognized by the whole commercial world. 1 This is stated by one of our best authorities on the law of evi- dence. It is frequently said, in another manner, that the seal of a notary public proves itself. But what does this mean ? How far is this true ? The statement is somewhat broad and general, and needs more exact and careful exposition. When we say that the seal of a notary proves itself, we mean that no further testimony is required to be given to the Court before the judi- cial mind can recognize it as the seal of a notary. Its very pro- duction is all that is required, according to the common law. i Greenlf . on Ev. Sec. 5. 136 NOTARIAL, ACTS AS EVIDENCE. 137 Whereas, in the case of the seal of some private officer or per- son, it is necessary to show that it was the seal of such 'person or officer. Thus, suppose an instrument be offered with the seal of a corporation to it, necessary to give it validity. It will be necessary to prove, before the instrument can be admitted in evidence, that the seal is the proper seal of the corporation. But when an instrument is produced which is required to have a notarial seal to give it validity, the seal affixed as that of a notary will be accepted without proof by the Court, or without any further testimony that such is properly the seal it purports to be. A case before Lord Eldon well illustrates this particular point. In Hutcheon v. Mannington, 1 a certain person, as a magistrate, joined with a notary public, to certify that certain writings, executed in a foreign country, were true copies. Lord Eldon observed that a notary public by the law of nations has credit everywhere, and that he would therefore give credit to him, but that it was necessary to prove that the other person was a magistrate. In Brown v. Philadelphia Bank, 2 Chief Justice Tilghman uses this language : " Public convenience requires that a certificate, under a seal of this kind, should be prima facie evidence, with- out proving that the person who used it and signed the certifi- cate was a notary commissioned by the governor. It ought to be presumed, till the contrary be proved, that no man would dare to assume the office without proper authority." It must be remembered that this is a statement of a rule of the common law, and in many places may be otherwise by statute. But it will be found that in all civilized countries, by the commercial law, the seal of a notary, affixed to a protest in a foreign State, is accepted as authentic, without any other proof or verification. 3 i G Yesey, 823. 2 G S. & R. 484. See Townsley v. Sumrall, 2 Pet. 178; Story on Bills, Sec. 277; Porter r. Judson, 1 Gray, 175; Wright v. Barnard; 2 Esp. 700. The sealed pro- test of a foreign notary made abroad proves itself without showing by whom it was made, and is evidence of the fact of protest. Lloyd r. McGarr, 3 Barr, 474. So, in Louisiana, it is held that protests of foreign bills by foreign notaries are received in aid of commerce, to establish the facts of presentment, demand, and non-payment, and this without proof of their signatures and official capacities. Shorr v. Woodlief , 23 La. An. 473. 3 In Donegan r. Wood, 49 Ala. 342, the Court refused to recognize as valid the official acts of a notary public in making protest in New Orleans, in February, 18G2, who was appointed by the Confederate States. 138 NOTARIAL ACTS AS EVIDENCE. 137 In regard to certain duties devolving on notaries by statute, as, for instance, the taking of depositions, the same rule is not uni- versal. For while in some places the signature of a notary and his seal would be accepted as authentic, without further proof that he was such in fact, in other places, as will be seen by a reference to the chapter on depositions, it is necessary to have an authentication of his official character from some public of- ficer or Court. The practice on this point varies throughout our States. 137. How far notarial acts were evidence under common law. The protest of a foreign bill of exchange by a notary was accepted by the common law as proof of the fact of dishonor. This rule was sanctioned by the mercantile law as one of great convenience, obviating the necessity of calling witnesses from a great distance to prove the fact of dishonor ; and the cer- tificate of the notary was received in place of the oral evidence. This rule only had application to foreign bills. Whenever the dishonor of inland bills or notes had to be proved, the notarial protest alone would not be received as sufficient evidence the notary himself, or some other witness who knew the facts, must be called upon to give evidence. So, Story, J., uses this lan- guage, in Townsley v. Sumrall : l " But where parties reside in the same kingdom or country, there is not the same necessity for giving entire verity and credit to the notarial protest. The parties may produce the witnesses upon the stand, or compel them to give their depositions. And accordingly, even in cases of foreign bills, drawn upon and protested in another country, if the protest has been made in the country where the suit is brought, Courts of Justice, sitting under the common law, require that the notary himself should be produced, if within the reach of process, and his certificate is not per se evidence. This was so held by Lord Ellenborough in Chesmer v. Noyes." 2 Story, in this case, held that the United States were foreign to one another in respect to bills of exchange. 3 Under the common law, the 1 2 Pet. 179. 2 2 Camp. 129. 8 In Holliday v. McDougall, 20 "Wend.. 81, the same point is decided by Cowen, J., who cites Townsley v. Sumrall, Supra; Cape Fear Bank v. Steinmetz, 1 Hill, 138 NOTARIAL ACTS AS EVIDENCE. 139 protest was only evidence as to presentment and dishonor ; and no statement contained therein, as to notice given an iridorser, would be accepted as evidence of notice to the indorser. 1 138. A certificate of protest under the common law is evidence of a demand and refusal, but no more. Hence, in an action upon a foreign bill, the protest is competent evidence to prove presentment of the bill to the acceptor, and non-pay- ment. 2 But a notarial protest which states merely that the notary " presented the same at the office of A & B," the makers, 4i and was refused payment," is not sufficient, and it is not ad- missible in evidence in an action against an indorser. 3 The Court, in this case, say : " The matter to be proved was, that the note had been duly protested for non-payment, that is, the dishonor of the note. This main fact would consist of three elements : a presentment to the makers for payment, a demand of payment, and a refusal of payment ; all of which the notarial protest must show, otherwise it will contain no evidence which is competent to go to the jury on the main fact to be proved. In Bank of Eochester v. Gray, 4 it is held that the admission of a notarial certificate of protest, as evidence, depends on the lex fori, and it is not admissible by itself unless it be sealed ; and it is there also held that, as it is no part of the common-law duty of a notary to give notice, the certificate of a foreign notary is no evidence that he did so. Sometimes the record of a deceased notary has been received as secondary evidence, to show the fact of notice having been given when his certificate, if he were living, would not be com- 44; Nicholls v. Webb, 8 Wheat. 331. See, further, Chitty on Bills, 362; Kirksey v. Bates, 7 Porter, 529; Hatfield v. Perry, 4 Harr. (Del.) 463; Bond v. Bragg, 17 HI. G9; Carter v. Burley, 9 N. H. 558. 1 Rives t>. Parmley, 18 Ala. 256; Coster v. Thomason, 19 Id. 721; Sullivan v. Deadman, 19 Ark. 484; Union Bank v. Humphreys, 48 Me. 172; Schoneman v. Fegley, 7 Penn. St. 433; Coleman v. Smith, 26 Id. 255. 2 Musson v. Lake, 4 How. (U. S.) 273; Green v. Jackson, 15 Me. 136; Warren v. Warren, 16 Id. 259; Pattee v. Crillis, 53 Id. 410; Moore v. Missouri Bank, 6 Mo. 379; Grafton Bank v. Moore, 14 N. H. 142; Estep v. Cecil, 6 Ohio St. 536; Wil- liams v. Turner, 2 Bay (S. C.) 411; Bryden v. Taylor, 2 Har. & J. 399; Brittain v. Bank, 5 Watts & S. 87. s Nave v. Richardson, 36 Mo. 130; S. P. Otsego Co. Bank v. Warren, 18 Barb. 290. * 2 Hill, 227. See Ross v. Bedell, 5 Duer, 462. 140 NOTARIAL ACTS AS EVIDENCE. 139 petent to prove this fact. Thus, Story, J., says, in Nicholls v. Webb, 1 of an entry made in the register of a deceased notary, in regard to the protest of a promissory note, which did not re- quire a protest according to the law merchant : " We think it a safe principle that memorandums made by a person in the ordi- nary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done." " A fortiori, we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary business of his office, since he acts as a sworn officer, and is clothed with public authority and consequence." So, on this principle, it was decided, in Massachusetts, in Porter -y. Judson, 2 that the protest of a promis- sory note, duly authenticated by the signature and official seal of a notary public, and found among his papers after his death, is competent secondary evidence of the acts of the notary, stated therein, respecting presentment, demand, and refusal. 3 139. Statutory provisions in regard to certificate. In nearly all of our States there have been enacted statutes giving greater credit and force to a notarial certificate in regard to the protest of negotiable paper. While, under the common law, a protest was only necessary in the case of foreign bills, and was only received as evidence in actions upon such, now, under statutory provisions, protests may be made of inland bills and promissory notes,, and the certificate of the notary as to such protest, and the notice given, is accepted as prima facie evidence of such facts, without the necessity of calling the notary as a witness. This has been done in aid of mercantile usage and 18 Wheat. 326. 2 1 Gray, 175. In Hart v. "Wilson, 2 Wend. 513, a memorandum of protest on the back of a note by a deceased notary was admitted in evidence. 8 The same has been held, in England, in Poole t;. Decas, 1 Bing. 649, Chief Justice Tindal holding : " We think it admissible, on the ground that it was an entry made at the time of the transaction, and made in the usual course and routine of business by a person who had no interest to misstate what had oc- curred." The admission of records of deceased notaries, under statutory pro- visiona, will be considered in a subsequent section. 139 NOTARIAL ACTS AS EVIDENCE. 141 convenience, though some of our States still adhere to the com- mon-law rules, previously stated. 1 In Kansas, the statute provides : " A notarial protest shall be evidence of a demand and refusal to pay a bond, promissory note, or bill of exchange, at the time and in the manner stated in such protest, until the contrary is shown." 2 This, it will be seen, somewhat enlarges the field of the protest, extending it to inland bills, bonds, and to promissory notes, but nothing is said about it being evidence of the fact of notice if recited in the protest. This point came under examination in a late case in that State where a promissory note had been protested for non- payment, and a statement was made in the protest that due notice was given to the indorser, setting forth how given. The Court decided that under the statute this certificate could not be received as evidence of such notice. 3 The language of the Missouri statute is almost the same. It says : " A notarial protest is evidence of a demand and refusal to pay a bill of exchange or negotiable promissory note, at the time and in the manner stated in such protest." 4 And it would follow that, under the construction given to the Kansas statute, a recital of notice having been given would not be received as competent evidence by the certificate of the notary. l The following States still adopt the common-law rule as to notice : Delaware, Florida, Kansas, Massachusetts, Missouri, and Rhode Island. In Mississippi, since Act of April 5th, 1872, the protest is required to state whether demand was made, of whom, when, and where, whether the notary presented such bill or note, whether notices were given, to whom and in what manner, .where the same was mailed, and when and to whom directed, and every other fact touch- ing the same. Sec. 9. In New Jersy, since 1862, (Nixon's Dig. p. 773) the cer- tificate of a notary, as to protest and notice, shall be received as prima facie evidence, but a party may contradict it by appending notice to his plea. In Pennsylvania, it is provided (Purdon's Dig. p. 759) "that the official acts, protests, and attestations of all notaries public, certified according to law, un- der their respective hands and seals of office, in respect to the dishonor of all bills and promissory notes, and of office to the drawers, acceptors, or indorsers thereof, may be received and read in evidence as proof of the facts therein stated iu all suits pending, or hereafter to be brought : prodded, that any party may be permitted to contradict by other evidence any such certificate." In Jenks v. Doylestown Bank, 4 Watts & S. 505, it was held that the notary's pro- test of a promissory note is prima facie evidence of the fact of notice when re- cited in it. 2 Gen. Stat. 117, Sec. 18. 8 Curtis v. Buckley, 14 Kan. 450. 4 1 Wag. Stat. 218, Sec. 20. 142 NOTAKIAL ACTS AS EVIDENCE. 140 140. What facts the certificate is evidence of. It must be understood that the notary's certificate is not evidence of every fact he may choose to state in it. It is manifest that he might state many irrelevant matters which cannot have any connection whatever with the duty he is called upon to dis- charge ; which could not therefore be received in evidence under his certificate. And it must be borne in mind that evidence offered in - this manner, without cross-examination, ex parte as it were, is an innovation on the rules of the common law, and therefore the certificate can only be received as evidence to those facts which the statute provides. The Courts are therefore strict in confining the certificate of the notary to the precise facts required by the statute, and no more, nor no less. So, when the protest of a notary public stated that notice was given " to the agent " of a party of the protest of his paper, this is not sufficient evidence of such agency : the agency must be proved aliunde before the protest can be re- ceived as evidence of notice. 1 And a statement, in a protest of a bill for non-acceptance, that the reason given by the drawee for non-acceptance was that he had no effects of the drawer, is no evidence of the want of effects. 2 Where a certificate states that the notice was mailed to the indorser's address at a certain place, it will not be presumed that the indorser resided in that place. 3 So a certificate of the notary that, according to his best information, upon diligent inquiry, the indorser lived in New York, and that he mailed a notice to him in that city, is of no effect to prove a proper notice upon proof that when the plaintiff took the note he was informed that the indorser lived on Long Island, where in fact he had lived for twenty years. 4 If a notary certifies that what he did was done at the request of a particular bank, it is of no importance ; for it may be fairly inferred that he received the bill from that bank, and that they, having possession of it, were duly authorized to em- ploy the attorney. 5 lO'Connell v. "Walker, 1 Porter, 263; Castles v. McMath, 1 Ala. 326; S. P. Drumm v. Bradfute, 18 La. An. C80. 2 Dumont v. Pope, 7 Blackf. 367; Dakin v. Graves, 48 N". H. 45. 8 Bradshaw ;. Hedge, 10 Iowa, 402. 4 Randall v. Smith, 34 Barb. 452. CBurbank v. Beach, 15 Barb. 326. In Bennett v. Young, ISPenn. St. 261, a 141 NOTARIAL ACTS AS EVIDENCE. 143 The Civil Code of California gives a great deal of scope to the notarial protest. It ' provides, Sec. 3227, that it shalj state " presentment, and the manner in which it was made ; the presence or absence of the drawee or acceptor, as the case may be ; the refusal to accept or to pay, or the inability of the drawee to give a binding acceptance ; and, in case of refusal, the reason assigned, if any ; and, finally, protest against all the parties to be charged." 141. Character of certificate as evidence. The stat- utes of our States give to a notary's certificate of the protest of commercial paper, and the notice served, the character of pre- sumptive or prima facie evidence of the facts of such protest and notice. 1 Some of the statutes provide unnecessarily that such evidence may be contradicted ; but of course, from the na- ture of the evidence, this must be assumed. 2 Thus, in an action on a promissory note against an indorser, the protest and certifi- cate of notice of protest are admissible in evidence, although no protest or notice of protest is alleged in the petition. The protest and certificate of notice of protest are proper evidence under allegations showing demand and refusal of payment, and that the defendant had due notice. 3 The certificate is evidence, although the notary has forgotten the facts contained in the cer- tificate. 4 The credit given to the notary's certificate, under the statutes, notary certified that ho had "made diligent search and inquiry" for the draw- ers. The Court disapproved of this mode of stating the facts, it being in the nature of a conclusion rather than any clear statement of what he had actually done. 1 Prima facie evidence is defined to be, in law, that which is sufficient to estab- lish a fact, unless rebutted : Bouvier's Law Dictionary. The Code of Procedure of California, Sec. 1833, defines it to be, that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. 2 Booker v. Lowry, 2 Ala. 399; Rives v. Parmeley, 18 Id. 256; McFarland v. Pico, 8 Cal. 627; Dickerson v. Turner, 12 Ind. 223; Sather v. Rogers, 12 Iowa, 231; Barker r. Fullerton, 11 La. An. 25; Nailor v. Bowie, 3 Md. 251; Kern v. Von Phul, 7 Minn. 426; Simpson v. White, 40 N. H. 540; Gawtry v. Boane, 48 Barb. 148; Gordon v. Price, 10 Ired. 385 ; Baumgardner v. Reeves, 35 Penn. St. 250; Worley v. Waldran, 3 Sneed, 548; Nelson v. Fotherall, 7 Leigh, 179; Central Bank v. St. Johns, 17 Wis. 157; Span v. Baltzall, 1 Fla. 301; Field r. Thornton, 1 Ga. 306; Sims v. Handley, 1 How. (Miss.) 1; Smith v. McMannis, 7 Yerg. 483. 8 Bank of Kentucky v. Goodale, 20 La. An. 50. 4 Sherer v. Easton Bank, 33 Penn. St. 134. 144 NOTARIAL ACTS AS EVIDENCE. 141 is well stated, and the departure from the former practice shown in Layman v. Brown, 1 in Ohio. There the Court say : " The object of this provision undoubtedly was to make the officer's certificate of all his official acts, performed at the time of the protest, evidence in any action upon the bill or note protested. Prior to the statute, the act of a notary in the presentment of a note, and giving notice to the indorser, was x>f no more validity than that of a private person. It was subject to the same rule of construction, and must have been proved in the same manner. The rule was so strictly applied that the notarial fee could not be charged against the debtor ; and although the practice pre- vailed in all the commercial cities of the Union to employ a notary to present dishonored notes, and to notify the indorsers if payment should be refused, it was never decreed that the prac- tice changed the general rule of law it was simply an arrange- ment made for the convenience of the holder, and principally resorted to when the note was held by a bank, by which, in effect, the notary was substituted for an agent of the holder. Such was the law, as held by the Courts of all the States, as well as those of England. The admission of the protest as tes- timony was confined solely to bills of exchange, and then merely to entitle the holder to recover damages. And yet, in Scotland, as well as in all Continental Europe, there was no distinction made between bills and notes the act of the notary was held to be good evidence of the facts necessary to be proved in both cases.' "2 1 1 Disney, 75. 2 Story on Prom. Notes, Sees. 274, 279, 297 ; Nicbolls v. Webb, 8 Wheat. 326. The provisions in our statutes which admit the certificate of a notary as evi- dence are very similar throughout. Thus, in California, Political Code, Sec. 7'J5 : "The protest of a notary, under his hand and official seal, of a bill of exchange or promissory note, for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance or non-payment thereof, the service of notice on any or all of the parties to such bill of exchange or prom- issory 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, aud of the party to whom the same was given, and the post>-office nearest thereto, is prima facie evidence of the facts contained therein." The provision in New York is : "Any note or memorandum made by a notary public, in his own handwriting, or signed by him at the foot of any protest, or in his regular reg- ister 'of official acts, is presumptive evidence of the fact of any notice of non- acceptance or non-payment having been sent or delivered at the time and in the manner stated in such note or memorandum." 2 R. S. 284, Sec. 47. In Mis- 142 NOTARIAL ACTS AS EVIDENCE. 145 142. Rebutting the certificate. Some States provide a specific mode for a rebuttal of the certificate as evidence, and then the party offering it is obliged to prove the facts, as he would have to do under the common law. The statute of New York, passed in 1833, enacted : " In all actions at law, the certifi- cate of a notary, under seal of office, of the presentment of any note or bill for acceptance, or of any protest of such note or bill, and of the service of notice thereof on any or all of the parties, 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, to be presumptive evidence of the facts contained in such certificate : but not when the de- fendant shall annex to his plea an affidavit, denying having re- ceived notice of non-acceptance or of non-payment of such note or bill." l The Michigan statute is somewhat similar, reading : " In all the Courts of this State, the certificate of a notary pub- lic, under his hand and seal of office, of official acts done by him as such notary, shall be received as presumptive evidence of the facts contained in such certificate ; but such certificate sissippi, the certificate is not evidence without the affidavit of the notary. By the Act of April 5th, 1872, it is provided : "That the record of the notary pro- testing any bill, or note, or other instrument, or a copy thereof, verified by the affi- davit of such notary, taken before a justice of the peace, shall be conclusive evidence of the fact of the protest, and prima facie evidence of all other facts touching the dishonor of the said bill or note ; such copy shall be competent evidence in all the Courts of this State, including the Courts of the county in which the notary protesting the bill or note resides." The certificate is not evi- dence unless verified by oath: Dorsey v. Merritt, 7 Miss. 390 ;. but the oath need not be made at the time of making up the record. Fleming v. Fulton, 7 Miss. 473. i Laws 1833, p. 304, Chap. 271, Sec. 8. Under this, it was held that a notarial certificate of protest, and notice is competent evidence, notwithstanding a denial of notice of protest in a verified answer. Such verification cannot be received as a substitute for the affidavit required by the statute. Arnold v. Rock, 5 Duer, 207 ; Gawtry v. Doane, 48 Barb. 148 ; Lansing v. Coley, 13 Abb. Pr. 272. An affidavit denying "knowl- edge, recollection, or belief" of having received notice of protest, is sufficient to exclude the notarial certificate. Barker v. Cassidy, 16 Barb. 177. See Pier- son v. Boyd, 2 Duer, 33. This Act of 1833 lias no application to the case of a certificate of a notary of this State to the presentment of a note drawn payable at a place in another State. Dutchess Co. Bank v. Tbbotson, 5 Den. 110 ; Kirt- land v. "Wanzer, 2 Duer, 278. It applies only to notaries of the State. Bank of Rochester v. Gray, 2 Hill, 227. The defendant may contradict the presumption arising from the certificate, by showing that it is untrue. Seneca Co. Bank v. Neass, 3 N. Y. 442. NOTARIES 10. 146 NOTARIAL ACTS AS EVIDENCE. 143 shall not be evidence of notice of non-acceptance or non-pay- ment in any case in which a defendant shall annex to his plea an affidavit, denying the fact of having received such notice." l 143. Notarial certificate, when made out of State. It has been held that the statutes giving to the notarial certifi- cate the character of prima facie evidence of the protest and notice of protest have no application to the certificates made out of the State ; and such certificates, given by notaries in other States, can only be admitted in evidence under enabling statutes, which are now found in many of our States. 2 Thus, under the Pennsylvania Act of 1854, the certificate of a notary in another State of the non-payment of a bill or note is admissi- ble in evidence in an action upon it, and it is not necessary that the certificate should appear to have been a transcript from some record or register of what took place at the time of send- ing notice. 3 So in Connecticut, under the statute making pro- tests of promissory notes protested without the State prima facie evidence of the facts therein contained, such a protest, in which the magistrate has certified that on the day of the protest a due notice thereof was put into the post-office, directed to the indorser at his place of residence, is admissible as evidence that such notice was sent. 4 And it has been held, in Indiana, that an instrument of writing purporting to be a protest of a note with a certificate of notice to the indorser, by a notary public in New York, is admissible evidence for the plaintiff, in a suit on said note, under the statute, without proof of its execution. 5 In a late case in New York, the Court had under considera- tion the requisites of such a certificate from another State. Under the law of New York of 1865, 6 it was enacted that pre- sentment of notes and notice of protest may be made " accord- ing to the laws of such other State, etc. And in any action in any of the Courts of this State, such proof of such presentment 1 Comp. Laws, p. 202, Sec. G03. 2 White v. Englehard, 10 Miss. 38; Dutcbess Co. Bank v. Ibbotson, 5 Den. 110; Schoneman v. Fegley, 7 Penn. St. 433; Coleman v. Smith, 26 Id. 255; Sumnerr. Bowen, 2 Wis. 524. Starr v. Sanford, 45 Penn. St. 193. 4 Union Bank v. Middlebrook, 33 Conn. 95. 6 Shanklin v. Cooper, 8 Blackf. 41; S; P. Turner v. Rogers, 8 Ind. 139. 6 Laws of 1865. Chap. 309. 144-5 NOTARIAL ACTS AS EVIDENCE. 147 and notice thereof may be made as is authorized and required by such laws. And on such proof being made, the note shall be deemed to have been duly and sufficiently presented and protested, and notice of all thereof duly given." The certificate of a notary of Pennsylvania, -wherein he cer- tified that he had made due presentment, etc., and made protest, stating " of all of which I duly notified the indorsers," was in- troduced in evidence. The Court decided that this certificate was incomplete, and could not be admitted under the above statute to prove due notice to the indorsers ; for the reason that there was no evidence offered that this certificate would be suf- ficient under the laws of Pennsylvania, and, in the absence of such evidence, the certificate must state definitely how and in what manner notice was given, either that it was personal, ac- cording to the common law, or by mail, according to statute. 1 The Court say, in giving the decision : " The act allows pre- sentment and notice to be made and given according to the laws of such other State, and proof thereof to be made as is author- ized and required by such laws. On such proof, i. e., that the presentment and notice was according to the laws of such State, being made, it shall be held to have been duly done, and such certificate would be enough." 144. Sufficiency of the notarial certificate. A protest of a notary is prima facie evidence of the truth of its state- ments, and when exclusively relied on to prove the necessary facts, must contain sufficient averments that everything requisite has been done to authorize the demand upon the indorser. 2 The inquiry will now be made as to what requisite averments the certificate must contain, so as to hold an indorser liable when the certificate is offered to prove notice of protest. 145. Sufficiency as to residence. As the statutes give to the certificate the character of prima facie evidence of the facts therein stated, it would follow that a statement by the 1 Lawson v. Pinckney, 40 JS". Y. Superior Ct. 187. Decided, Dec. 1875. - People's Bank r. Brooke, 31 Md. 7. The protest of a notary public is admis- sible in evidence, however insufficiently or defectively the facts may be stated with respect to demand and notice. The question of the sufficiency arises af- terward. Hastings v. Barrington, 4 Whart. 486. 148 NOTARIAL ACTS AS EVIDENCE. 145 notary that he had given notice to an indorser at a certain place is prima facie evidence that that is his residence. The burden will be upon the indorser, when sued, to show that it was not his residence or post-office address. 1 In a late case in Iowa, Fuller v. Dingman, 2 the notary's certificate was as follows : " Be it known, that on the date hereof, I, W. S. Kenworthy, notary public for the County of Mahaska, State of Iowa, duly com- missioned and qualified, residing in the city of Oskaloosa, in said State, at the request of Lindley, cashier, the holder of the original note, which is hereunto attached, presented the same and demanded payment thereon, which was refused. Whereupon, I, the said notary, at the request aforesaid, have protested, and do protest, against the maker and indorsers of said note. And I do certify that, on the day of the date of this protest, I notified the maker and indorsers of the hereunto attached note, to wit : Lawrence Dingman, in person, and Craig & Alexan- der, Fuller & Warren, and H. E. Lowe, cashier, of the within protest, and which I, on the said day, mailed to them, the said Craig & Alexander, and H. E. Lowe, assistant cashier. The first addressed, Oskaloosa, Iowa, and Fuller & Warren, and H. E. Lowe, Chicago, Illinois, and to Lawrence Dingman, Oska- loosa, Iowa. In testimony whereof," etc. It was held that this was sufficient as evidence that the places named were the respect- ive residences of the parties. In some States in fact, as a general rule it is required that when certificates are sent by mail it shall be stated where the notices were sent. 3 But in New York, since the law of 1835, the certificate need not specify the party's reputed place of residence, and the post-office nearest to it. 4 In a case in In- diana, it is held that where a notary states in the protest that he notified the indorsers by addressing notices to them at a place named, proof is requisite that they resided at that place. 5 This is not in agreement with other authorities. 1 "Walmsley v. Rivera, 34 Iowa, 463; Bell v. Lent, 24 "Wend. 230; Bell v. Hagers- town Bank, 7 Gill. 216; Bank of Columbia v. McGruder, G H. & J. 172. 2 41 Iowa, 506. 8 Curry v. Bank of Mobile, 8 Port. 360. 4 Ketchum v. Barber, 4 Hill, 224. So in Georgia. "Walker v. Bank of Augusta, 3 Ga. 486. 6 Turner v. Rogers, 8 Ind. 139; S. P. Bank of Mobile v. King, 9 Ala. 279. 146 NOTARIAL ACTS AS EVIDENCE. 149 146. As to the manner of giving notice. When no mode of giving the notice is stated in the notarial certificate, it is deemed to be personal. Thus, in Ticonic Bank v. Stackpole, 1 the notary merely certified : " And on the same day I duly no- tified James Stackpole, Esq., indorser of said note, of said non- payment." It was objected, in this case, that this certificate was insufficient, as it was a mere conclusion by the notary as to what " due " notice was. The Court held the certificate suffi- cient as evidence of notice, saying : " In the absence of any qualification, it must be regarded as verbal, and that, as the de- fendant is a resident of the town where the note is payable, is sufficient. But it is seldom a notarial certificate is given in this manner ; the usual and the proper course is to indicate what means were taken to notify the indorser, whether it was by a written notice handed to him, or mailed to him, as the statute requires." So, a notary's certificate that he " gave written notice to the indorser " is equivalent to " put a written notice in the indorser's hands," and is therefore good. 2 Where a notary, in his certifi- cate of protest, stated that he had delivered a written notice of protest " to C, and left the same at his office," it was held that C might show that, at the time the notice was given, he had no office at the place mentioned, and thereby rebut the presumption of the correctness of the fact stated by the notary. 3 In Union Bank v. Humphreys, 4 the certificate stated merely that the notary " made notices to all the indorsers, which he caused to be left at their dwelling-houses." It was held that the certificate could not be received as evidence. The Court say : " What the notices contained, and whether sufficient or not to charge an indorser, is left entirely to conjecture. The plaintiffs neither asked for leave for the notary to amend his protest, nor offered to prove that the notices sent contained the proof of the 1 41 Me. 321. "Where a protest is defective in not stating how notice was given to an indorser, the necessary facts may be supplied by evidence aliunde. Brad- ley v. Davis, 26 Me. 45. 2 O'Neil v. Dickson, 11 Ind. 253. A certificate stating that notice was left at the indorser's desk in the custom-house, with a person in charge, he being absent ; is admissible, and is prima facie evidence of due service. Bank of Com- monwealth v. Mudgett, 44 N. Y. 514. 3 Caruthers v. Harbert, 5 Coldw. 362. 4 48 Me. 172. 150 NOTARIAL ACTS AS EVIDENCE. 147-8 dishonor of the note." It is not easy to distinguish this case from the case of Ticonic Bank v. Stackpole, Supra. On an examination, however, it will appear that in the former case there were facts in the protest showing the dishonor of the note, sufficient for the Court to assume the fact of dishonor, implying a presentment, demand, and refusal ; whereas, it appears in the latter case there was nothing showing notice of the fact of dis- honor. The notice was not produced in the latter case, and no inference as to its contents could be raised. 147. When notice is sent by the mail the certificate must show the fact clearly in order to appear it was proper un- der the statute to send notices in that mode. A notarial certifi- cate, stating that notice of protest was served, etc., by putting the same in the post-office, directed, etc., is a sufficient compli- ance with the statute in New York, though it do not expressly state by whom the service was made. 1 Proof tha$ the notice was placed in the post-office, at nine o'clock in the forenoon of the day on which it should be sent, without showing that it was in season to be carried by the mail of that day, is not sufficient. 2 And in the same case it was decided that when the indorser re- sides in a different State from that in which the demand on the acceptor was made, and when there is a town of the same name in at least two States, the direction of the notice should not only name the town in which the drawer resides, but also the State. The protest of a notary public of another State, wherein he states that he sent a notice of the dishonor of a bill to the drawer on the next day after a demand and refusal, " and by the first practicable mail thereafter," is competent evidence to prove the fact thus stated. 3 Where a notary's certificate shows that he has mailed notice of protest, a prepayment of postage will be presumed. 4 148. The certificate must show notice of dishonor, or it cannot be admitted in evidence. The notice given must con- 1 Barber v. Ketchum, 7 Hill, 444; S. C. 4 Hill, 224. 2 Beckwith v. Smith, 22 Me. 125. a Beckwith . St. Croix Man. Co. 23 Me. 284. See Housatonic Bank v. Laflin, 5 Cush. 540. 4 Brooks v. Day, 11 Iowa, 40. 149-50 NOTARIAL ACTS AS EVIDENCE. 151 vey such fact clearly and unequivocally to the party. Thus, a protest of a note payable at a bank, stating that written notices had been addressed to the indorsers, " informing each of them that he was held liable for the payment of the said note, with- out stating that the note was due and unpaid, is insufficient to charge the indorsers." l The notarial certificate should show af- firmatively a presentation to the person upon whom the demand of payment should properly be made. 2 A certificate stating that the notary gave " notice of the non-payment of the bill " must be understood to mean that the notice was of non-payment on due presentment and demand, as stated in the certificate of protest, and is sufficient. 3 It must show a presentment for payment by the notary himself. 4 149. The certificate need not state at whose request notice was given, for it will be presumed it was done at the instance of the holder. 5 It will also be presumed the notary had the draft in his possession at the time he demanded pay- ment. 6 150. Date of certificate. Where a notary keeps a reg- ister, and notices therein his acts in protesting and giving notice, he can make up his certificate at any time thereafter from such entry, and it will be received in evidence as if made at the time of the occurrence of the acts. 7 In Austin v. Wilson, 8 it was held that it was not essential that the entire record of the notary should be made at the very moment of the transaction, but it is sufficient if done within a few days, in the ordinary course of business. But in a case 1 Farmers' Bank v. Bowie, 4 Md. 290. 2 Duckert v. Von Lilienthal, 11 Wis. 56; Otsego Co. Bank v. Warren, 18 Barb. 290. 8 Burbank v. Beach, 15 Barb. 326; Seneca Co. Bank v. Neass, 3 N". Y. 442. 4 Warnick v. Crane, 4 Den. 460; Hunt v. May bee, 7 N. Y. 266; Bank of Ken- tucky v. Garey, 6 B. Mon. 626; except where deputies are authorized to make demand as in Louisiana ; see Lee v. Buf ord, 4 Mete. Ky. 7 ; Chew v. Eeed, 19 Miss. 182. SDuckert v. Von Lilienthal, 11 Wis. 56; Burbank v. Beach, 15 Barb. 326. Bank of Louisiana v. Satterfleld, 14 La. An. 80; Bank of Vergennes v. Cam- eron, 7 Barb. 143. i Chatham Bank v. Allison, 15 Iowa, 357; Brandon u. Loftus, 4 How. Miss. 127. 8 24 Vt. 630. 152 NOTARIAL ACTS AS EVIDENCE. 151 where the notary made protest and notified indorsers in March, 1839, and in October, 1845, more than four years and a half thereafter, made out his certificate, the Court refused to admit the certificate in evidence. 1 It is not easy to see on what ground the certificate was rejected in this case ; for if the no- tary kept a record of his official acts, such record ought to ena- ble him at any time thereafter to make out his certificate. Where the statute required the certificate to be " either in or on the protest," and a certificate was made out more than a year af- terward, and not on the protest, it was held inadmissible in evi- dence. 2 151. The certificate should be under the notarial seal as a general rule, invariably so if it be a foreign bill of exchange. In some places, it has been held that the certificate, if signed by the notary, need not be under his seal when the certificate is offered in evidence to show notice given of the protest of a promissory note. Thus, in Palmer -y. Whitney, 3 the certificate of notice of pro- test of a promissory note did not bear the official seal of the notary, though the statute required that all notarial acts be attested by a seal. The objection was therefore raised that the certificate was not admissible on this account ; but the Court held that as the notary when he gives notice of protest does not act officially, but as the agent for the holder, his mere signature to the notice, without attestation by his seal of office, is sufficient. It seems to me that <}iis decision is very doubtful, and would hardly be accepted as authority elsewhere. Thus, in Iowa, it is held that a notary's protest is inadmissible in evidence unless his seal be affixed, though it is allowable for him to affix his seal when this objection is made ; 4 but it is not necessary that the certificate should formally refer to the seal. 5 In a case in New York, the question was raised whether the usual certificate of notice when written beneath the protest, which was under seal, must also have a seal, and it was decided 1 Boggs v. Bank of Mobile, 10 Ala. 970. 2 Winchester v. "Winchester, 4 Humph. 51. 21Ind. 58. 4 Rendskoff v. Malone, 9 Iowa, 540. 6 Jones v. Berryhill, 25 Iowa, 289. 152-3 NOTARIAL ACTS AS EVIDENCB. 153 that it was unnecessary : so long as the seal appeared on the instrument, it was immaterial where it was appended. 1 152. Presumptions in favor of certificate. As the certificate is made evidence of certain facts by statute, it must clearly state these and no more ; it must be strictly construed with reference to these facts, and cannot be aided by pre- sumption. The Courts will, however, in the absence of evidence to the contrary, presume in favor of the notary discharging his duties properly and regularly : as when it is not clear from the certificate at what time a presentment was made, it will be pre- sumed it was during regular business hours, and that the notary had the draft in his possession. 2 So it is held that every intendment is to be in favor of the performance of his duty by a notary who certifies to the protest of negotiable paper for non-payment. 3 Where the certificate of a notary stated that he exhibited the note at the place of business of the promisors, and, demand- ing payment thereof, was answered by the person in charge that the promisors had left no funds there to pay the note, and that, said note remaining unpaid, he duly notified the indorsers by written notices, sent them by mail, having been requested so to do by the bank holding the note^s, the time limited, and grace having expired it was held that it might reasonably be inferred that he stated these facts in the written notices. 4 153. Parol evidence affecting certificate. It must often be a practical inquiry as to how far a notary can by oral evidence affect or control his certificate of protest and notice. This much is certain, that a notary public who has made a pro- test of a promissory note, and given due notice thereof to the indorser, cannot be permitted, by oral evidence, to contradict or vary what he has certified to, so as to weaken the certificate. 5 But he may, by oral evidence, explain his certificate so as to i Olcott v. Tioga K. E. Co. 27 ST. Y. 546. 2 De Wolf v. Murray, 2 Sandf. 166; Bank of Louisiana v. Satterfield, 14 La. An. 80; Union Bank v. Foulkes, 2 Sneed, 555. SMcAndrew v. Kadway, 34 N. Y. 511. 4 Lewiston Falls Bank v. Leonard, 43 Me. 144. 6 Garthwaite v. Casson, 23 La. An. 218 ; Barro-w v. Richardson. Id. 203. 154 NOTARIAL ACTS AS EVIDENCE. 154-5 support it, and supply an omission or defect in it. 1 Thus, in an action on notes against an indorser, the defendant denied that certain collateral bonds were tendered to the maker at the time the notes were presented for payment, as required by an agree- ment indorsed on said notes. It was held that the notary who had protested the notes could testify to facts connected with the tender, although no mention was made of it in the protest. 2 A late case in Maryland is instructive in this connection. The certificate, dated December 23d, 1871, gave notice of the non-payment of the note, stating that payment had been de- manded and refused. The note was due on the previous day, but there was no statement in the certificate showing it was then presented. It was permitted to introduce oral testimony to prove it had been presented on December 22d, at the date of its maturity. 3 154. Records of a deceased notary as evidence. By the common law, the records of a deceased person, duly made in the discharge of his duties, were admissible in evidence. 4 Hence, the records of a notary, showing a demand of pay- ment and notice to indorsers, have been allowed in evidence after the notary's death, though, if living, he would have to be called to testify to the same facts. 5 Now, by statute, such records are admissible in evidence after the decease of the no- tary, to prove protest and notice. 6 CERTIFICATE OF ACKNOWLEDGMENT. 155. Character of evidence. While a certificate of ac- knowledgment is not at all times conclusive, it certainly is the very strongest evidence of the facts therein recited, and can only be overcome by evidence of tho clearest, strongest, and 1 Bradley v. Davis, 26 Me. 45 ; Naylor v. Bowie, 3 Mrt. 251. 2 Butler v. Murison, 18 La. An. 363. 8 Reynolds v. Appleman, 41 Md. 615. The Court, in this case, distinguished it from Ransom v. Mack, 2 Hill, 587 ; Routh v. Robertson, 11 Sm. & M. 382 ; Tovrasend v. Lorain Bank, 2 Ohio, 345 ; Wyman v. Alden, 4 Denio, 163 ; because in these cases the time of making the demand was explicitly stated. * 1 Greenlf . on Ev. Sec. 115. 6 Brewster v. Doane, 2 Hill, 537 ; "Welch v. Barrett, 15 Mass. 380; Butler v. Wright, 2 Wend. 369 ; Homes v. Smith, 16 Me. 181. e Ogden v. GUdewell, 6 Miss. 179. 156 NOTARIAL ACTS AS EVIDENCE. 155 most convincing character, by disinterested witnesses. 1 Least of all, can it be contradicted by the officer who certified to the acknowledgment. 2 So, where a mortgage bore the notarial seal and signature of S S, but S S testified that he never affixed his seal to it, and that he believed himself to have been the only S S notary in Cincinnati, it was held that the seal proved itself, prima facie, and that the presumption in favor of the deed was not rebutted. 3 So, in Morris v. Sargent, 4 it was held that mere want of recol- lection of signing and acknowledging the execution of a deed should have but little weight against the certificate of the officer that such execution was duly acknowledged; that the burden of proof is upon the party who impeaches the truthful- ness of the official certificate of the acknowledgment of the execution of a deed, and the fact that a notary cannot remember incidents connected with the acknowledgment is entitled to little weight as against the certificate. 156. When certificate may be impeached. It is the policy of the law to give the fullest faith and credit to the acts of officers clothed with judicial or ministerial duties. On this principle, the certificate of acknowledgment duly executed is sustained, except where the evidence adduced to impeach it is of strong and convincing character ; and then the decisions hold that it can be impeached only for fraud or combination. Not always even then, as when a purchaser in good faith acts on such certificate, having no knowledge of any fraud. The cer- tificate will not entirely conclude a grantor ; 5 he may show he never executed the instrument, and that if he did it was not ac- knowledged as set forth, or that he was induced by fraud or combination to so acknowledge it. But there must be some- thing more than the evidence of the grantor to counteract and impeach the certificate, for that must prevail over his unsup- 1 Kerr v. Russell, 69 111. 666 ; Van Orman v. McGregor, 23 Iowa, 300. 2 Central Bank v. Copeland, 18 Md. 305 ; Harkins v. Forsyth, 11 Leigh, 294 ; Stone v. Montgomery, 35 Miss. 83. 8 "Wright v. Bundy, 11 Ind. 398. It will be observed that the officer's evidence was admitted in this case, because he denied executing the certificate. * 18 Iowa, 90. 5 Hutchinson v. Rust. 2Gratt. 394; Dodge v. Hollinshead, 6 Minn. 25. 156 NOTARIAL ACTS AS EVIDENCE. 157 ported evidence. So in Lickmon v. Harding, 1 the Court say that "public policy requires such an act should prevail over the unsupported testimony of an interested party, otherwise there would be but slight security in titles to land." The same point was brought up for examination in Calumet etc. Co. v. Russell, 2 where an elaborate review of the authorities was made, and it was held that the official certificate of the acknowledg- ment of a deed for -real estate must prevail over the unsup- ported testimony of an interested party in the absence of proof of fraud or collusion. 157. Can be impeached for fraud or collusion. The cases all show that the certificate can be impeached for fraud or collusion, and that oral evidence is admissible to show this. 3 Thus, if a married woman should be persuaded, by fraudulent statements as to the nature of the consideration her husband was to receive, to join in a conveyance of his land, she would not be barred of her dower in the land while in the hands of the party to the fraud, but it would be otherwise in case the land came into the possession of a bona fide purchaser, without notice of the fraud. He has a right to rely on the certificate as the highest, fullest, and most conclusive evidence that her title has been relinquished ; and as to him, and all other bona fide purchasers, the certificate is conclusive it cannot be impeached by oral evidence, so long as it is regular on its face. The security of titles demands this, that a bona fide purchaser shall be able to rely implicjtly and exclusively on the certificate, pro- vided it is regular on its face, and there is nothing to put him upon inquiry. This question has been fully and ably discussed in a late case in Illinois, which 'is very instructive in this con- nection. In this case, 4 a married woman sought to impeach the 1 65 HI. 505. 2 68 HI. 426. 8 Graham u. Anderson, 42 HI. 514; Montgomery v. Hobson, Meigs, Tenn. 437; Williams v. Robson, 6 Ohio St. 510. P- 293 - 2 Rev. Stat. 1874, p. 266. 8 Comp. Laws, p. 347, 3 1 G. & H. 254. "Rev. Stat. 1875, p. 22. 4 Gen. Stat. 1873, p. 877. 10 Comp. Laws, p. 220. 6 Comp. Laws, Sec. 324. n Gen. Stat. 1867, p. 63. 6 2 Rev. Stat. 6th Ed, 1142. 12 Rev. Code 1874, p. 183. is Rev. Code Ky. p. 203; Code of Miss. Sec. 800; Code of Va. p. 568. i* Code of Iowa, p. 43; Nixon's Dig. p. 155; 1 Swan & C. 874. 15 O'Bannon v. Paremour, 24 Ga. 489. 10 46 Ga. 450. 163-4 COMMISSIONERS OF DEEDS. 161 foreclose this mortgage, it was decided, that as equity would have power under such circumstances to reform the mortgage, it would still retain it to foreclose it. 163. Conditions to be complied with before exercis- ing duties. Before the commissioner can proceed to execute the duties of his office there are two prerequisites the statutes point out. These are, to take and subscribe an oath to faithfully discharge the duties of his employment, and to provide a seal ; then, within a certain definite period after his appointment, to file the affidavit, and an impression of his seal and signature, in the office of the Secretary of State. The period allowed to do this is generally six months ; l in other cases, it is three months. 2 When an application is made to the executive for appointment, a blank form of affidavit is returned to the applicant, which he is required to fill up, and swear to before some officer having authority to administer oaths in his State. In one of our States only is a bond required by statute from the applicant. 3 In Vermont, it is provided : " Before any com- missioner, appointed as aforesaid, shall proceed to perform any of the duties of his office, he shall take and subscribe an oath before some magistrate, authorized to administer oaths in the State for which commissioner is appointed, that he will faithfully discharge the duties of his office, and shall execute a bond to the State, with sureties to the satisfaction of the governor, in the penal sum of 8500, conditioned for the proper exercise of the powers and the faithful discharge of his duties as commis- sioner, which bond may be put in suit in the name of the State, against the principal and sureties, or any or either of them, by any person who has been injured by the neglect of such com- missioner.' "4 164. Fee paid for commission. Before a commission is delivered, it is the general rule to require a certain fee from the 1 As in Arkansas, Arizona, California, Illinois, Missouri, New Hampshire. 2 As in Mississippi. 3 The author is aware that in a few places a bond is required by the executive from the appointee; where this is the case, and the amount will be learned, when application is made to the executive department of a State. 4 Rev. Stat. 1870, p. 73. NOTARIES 11. 162 COMMISSIONER OF DEEDS. 165 appointee, which is usually not above ten dollars. The statutes provide, in some cases, for the disposition of the money so ob- tained on the commission. In Arizona, the secretary of the Ter- ritory shall be entitled to receive a compensation of ten dollars from each person hereafter appointed and commissioned. 1 In Illi- nois, the secretary of State is required to forward forms and in- structions to commissioners, and with the certificate of appoint- ment a copy of the laws relative to such officers, for which he shall be entitled to receive five dollars. 2 In Mississippi, the Secretary of State is entitled to receive two dollars and fifty cents for every commission. 3 In Nevada, the appointee is required to pay ten dollars, exclusive of other legal charges on his commis- sion, for the use of the " Library Fund " of the State. 4 In Ohio, the fee to be paid is three dollars, and the money obtained in this manner, after paying the wages of a messenger for the executive officer, shall form part of the compensation of the private secretary of the governor. 5 In West Virginia, the fee is fixed at five dollars. 6 165. Requirements as to seal. A seal is indispensably necessary before the commissioner can execute the duties of his office. In some States, no particular provision is made for a de- scription of seal, it being a general rule that the name of the commissioner shall appear thereon, with the words, " A Com- missioner for the State of -," and the name of the city or place where the commissioner exercises the duties of his office. Such States as have made special provision for a description of a seal to be used by* a commissioner, we will now notice. In California, the statute requires him to have an official seal, upon which must be engraved the arms of the State, the words, " Commissioner of Deeds for the State of California," and the name of the State for which he is commissioned. 7 In Illinois, on the seal shall be designated his name, and the words, " A Commissioner for the State of Illinois," together with the name of the State, Territory, or country for which appointed. 8 In Iowa, on the seal shall be engraved the words, " Commissioner 1 Comp. Laws, p. 347. 5 1 Swan & C. 874. 2 Rev. Stat. 1874, p. 267. 6 Code 1868, p. 387. Code 1871, Sec. 800. ? Pol. Code, Sec. 812. 4 Coinp. Laws, Sec. 328. Rev. Stat. 1874, p. 266. 166 COMMISSIONERS OF DEEDS. 163 for Iowa," with his surname at length, and at least the initials of his Christian name ; also, the name of the State in which he acts. 1 In Massachusetts, on the seal shall be designated his name, the words, " Commissioner for Massachusetts," and the name of the State or Territory, city and county where the commissioner resides. 2 In Nebraska, his name and the words, " A Commissioner for* Nebraska," together with the name of the State or Territory, city and county within which he shall reside, and for which appointed. 3 In New York, to have name, and the words, " Commissioner of Deeds for the State of New York," with the name of the city and foreign State or country for which he shall be appointed. 4 In Oregon, the commissioner is to provide a seal of office with the arms of the State engraved in the center thereof, and with the following inscription sur- rounding the same : " Commissioner for Oregon, ; ," the blank following the word Oregon to be filled with the name of the State, Territory, or district for which such commissioner is appointed. 5 In West Virginia, it is provided that the seal shall have des- ignated on it the name and the words, (either at length, or by intelligible abbreviations) " Commissioner for West Virginia in ," the blank to be filled up with the name of the State, Territory, or district for which he is appointed. 6 166. Authentication of acts. It is a general rule that the acts of a commissioner require no further authentication to entitle them to be received in evidence or recorded in the State for which he derives his appointment, than his own signature and official seal. So it was held, in Johnson -y. Cocks, 7 that depositions taken before a commissioner of deeds, appointed by the governor of the State to act in another State, may be read in evidence, without other proof of the appointment and au- thority of such commissioner than his own certificate and offi- cial seal. This general rule is not followed in New York, for by a statute passed in 1875, 8 it is there provided that, before the certificates of such officers can be admitted in evidence, there 1 Code, p. 43. 6 Gen. Laws, p. 295. 2 Rev. Stat. 132. <* Code 18G8, p. 387. 3 Gen. Stat. p. 87T. " 12 Ark. 672. 4 2 Rev. Stat. (Gth Ed.) 1142. 8 La WS o f 1375, Chap. 136, Sec. 2. 1G4 COMMISSIONERS OF DEEDS. 167 must be produced a certificate by the Secretary of State that he is acquainted with the handwriting of such commissioner, or lias compared his signature with the signature of such commis- sioner deposited in his office, and has also compared the impression of the seal affixed to such certificate with the impression of the seal of such commissioner deposited in his office, and that he believes the signature and impression of the seal of the said certificate to be genuine. 167. Fees. Commissioners usually charge the same fees as arc allowed to notaries in the States where they act. In some of our statutes, there is express provision made for the fees they are entitled to demand, and in some instances the pen- alty of removal is attached for taking any more than are thus expressly laid down. The statute in California gives them the same fees as are prescribed for notaries public, which are : For drawing an affidavit, deposition, or other paper, for each folio, thirty cents; for taking the acknowledgment or proof of a deed or other instrument, to include the seal and the writing of the certificate, for the first two signatures one dollar each, and for each additional signature fifty cents ; for administering an oath or affirmation, fifty cents ; for every certificate, to include writing the same and the seal, one dollar. 1 In Delaware, the fees are : For taking an acknowledgment of a deed, one dollar ; for taking and certifying an affidavit, fifty cents. The Iowa Code provides that they may demand the same fees as are al- lowed in the State where they act. 2 In New Jersey, they are allowed such fees asTtre allowed by law for like services to of- ficers in that State, and in case it shall be made to appear that any such commissioner takes greater fees, it shall be the duty of the governor to remove him. 3 The statute of Ohio provides he shall be entitled to charge and receive for his services the following fees and no more : For swearing each witness, twenty- five cents ; for each one hundred words contained in any depo- sition, certificate, or affidavit taken before him, twenty cents ; for authenticating, sealing up, and directing each deposition, one dollar ; for authenticating each affidavit sworn before him, one dollar ; for taking an acknowledgment, two dollars. 4 1 Pol. Code, Sees. 798, 815. 3 Nixon's Dig. p. 155. 2 Code, r- 43. < 1 Swan. & C. 874. 168 COMMISSIONERS OF DEEDS. 165 168. Appointments published. Provision is made in some statutes for the publication of the names of commissioners appointed, as in California, where the names of all persons ap- pointed are to be published three times in some weekly news- paper published at the seat of government of the State. 1 There is a similar provision in South Carolina, where notice of appoint- ment is to be given in " one or more gazettes of the State." 2 The statute in Iowa prescribes that the Secretary of State shall cause to be published with the session laws of each general assembly, a full and complete list of all commissioners for Iowa, who are duly qualified, and whose commissions do not expire on or before the 4th of July of the year in which such publica- tion is made, which list shall give the post-office address, date of qualification, and date of expiration of the commission of each commissioner. 3 And in North Carolina there is a similar re- quirement, and the Secretary of State is to cause to be printed a list in the Acts of the General Assembly. 4 1 Pol. Code, Sec. 816. Code, p. 43. 2 Rev. Stat. p. 113. < Ba tile's Dig. p. 251. FOEMS. [167] FORMS OF ACKNOWLEDGMENT. The following forms have been carefully selected, and compared with the requirements of the statutes in each State. Where the statutes have prescribed forms, these have been given, and the fact noted. It will be seen, on reference to Sec. 49 of this work, that in twenty-two of the States of the Union married women are required to make a private acknowledgment. These States are : Arkansas, California, Colorado, Delaware, Florida, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Car- olina, Tennessee, Texas, Virginia, and West Virginia; and forms are given for such acknowledgments under these States. By a re- cent statute in Alabama, (Stat. 1872-3, p. 65) married women are required to make a private acknowledgment in a conveyance of a homestead in Alabama, and the statute prescribes a form, which is here given under Alabama. In some certificates of acknowledgment, the officer concludes with the formal part " In witness whereof, I have hereunto set my hand and official seal," etc. ; but unless the certificate is given to be used out of the State, this formal part is conceived to be unnecessary. With regard to acknowledgments by corporations, we should observe that, in some of the older States, there is a form required, as in New York, which is based on the old rule, which attached great importance to the seal, and here the officer making the ac- knowledgment on behalf of the corporation is required to give proof of the seal. But this is now obsolete ; the general practice is now to require an acknowledgment simply by the president, or other agent of the corporation, on its behalf, the same as any other at- torney would acknowledge for and on behalf of his principal, as for instance in the form given under California, which may be con- sidered a general form of this class. In a few cases, the old style of acknowledgment of a corporation is retained, and these cases will be found under the States using such forms. [169] 170 ACKNOWLEDGMENTS. ALABAMA. 1. Form of acknowledgment of conveyance. THE STATE OF ALABAMA, > County. j I [name and style of the officer] hereby certify that , whose name is signed to the foregoing conveyance, and who is known to me, acknowledged 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 A. D., 18 . A B . [Form given in Rev. Code, Sec. 1548.] 2. Form of probate of conveyance. THE STATE OF ALABAMA, ") County. ) I [name and style of the officer] hereby certify that subscribing witness to the foregoing conveyance, known to me, ap- peared before me this day, and, being sworn, stated that ; , the grantor in the conveyance, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day the same bears date ; that he attested the same in the pres- ence of the grantor and of the other witness, and that such other witness subscribed his name as a witness in his presence. Given under my hand this day of -, A. D. 18 . [Form given in Rev. Code, Sec. 1549.] A B . 3. Acknowledgment of wife in conveyance of homestead. STATE OF ALABAMA,) County of, j ss< I, , judge, [or chancellor, as the case may be] do hereby certify, that on the day of , 18 , came before me the within named , known, or made known to me, to be the wife of the within named , who, being by me examined separate and apart from her husband, touching her signature to the within , acknowledged that she signed the same of her own free will and accord, and without fear, constraint, or persuasion of her hus- band. In witness whereof, I hereunto set my hand, this day of , 18 . A B, Judge [or Chancellor]. [The statute provides that no mortgage or other alienation of any homestead by the owner thereof, if a married man, shall be valid, without the voluntary signature and assent of his wife, which vol- untary signature and assent must be shown by the examination of the wife, separate and apart from her husband, touching the same, had before a Circuit or Supreme Court judge, chancellor, or judge of probate.] ACKNOWLEDGMENTS, 171 ARIZONA. 4. Acknowledgment by grantor. TERRITORY OF ARIZONA, > County of , j On this day of A.D. , personally appeared before me, a notary public, [or judge, or officer, as the case may be] in and for the said county, A B, known to me to be the person described in and who executed the foregoing instrument, who acknowledged to ine that he executed the same freely and voluntarily, and for the uses and purposes therein mentioned. [Signature and title.'] [The above form is prescribed in the Statutes. Comp. Laws, p. 3G1. The form for the private acknowledgment of a married wo- man is the same as that in use in California. Acknowledgment in the State may be made before some judge or clerk of a Court hav- ing a seal, or some notary public or justice of the peace of the proper county. Out of the State, and within the United States, acknowledgments may be made before some judge or clerk of any Court of the United States, or of any State or Territory having a seal, or by a commissioner of the Territory, but not by a notary public.] ARKANSAS. 5. Form, of acknowledgment in Arkansas. STATE OF ARKANSAS, ) County of . ) On this day of , 18 , before me , a justice of the peace within and for the county of , in the State of Arkansas, appeared in person , to me personally well-known as the person whose name appears upon the within and foregoing deed of conveyance as the party grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth, and I do hereby so certify. In testimony whereof, I have hereunto set my hand as such justice of the peace, in the county of , on the day of >, 18 . JAMES C. HUTCHINS, J. P. [If the grantor is unknown to the justice, instead of the words " to me personally well-known as the person," say : " who, being unknown to me, was proven to my satisfaction to be the identical , whose name appears upon the within and foregoing deed as the party grantor, by the oath of and witnesses, sw,orn and examined by me as to such identity," and stated, etc.] [Gantt's Digest, p. 1059.] 172 ACKNOWLEDGMENTS. ARKANSAS CONTINUED. 6. Acknowledgment by husband and wife of a joint deed for the husband's land. STATE OP ARKANSAS, County of . On this day of , 18 , before me, , a justice of the peace within and for the county of , in the State of Arkan- sas, appeared in person , to me personally well-known as the person whose name appears upon the within and foregoing deed of conveyance as one of the parties grantor, and stated that he had executed the same for the consideration and purposes there- in mentioned and set forth, and I do hereby so certify. And I further certify that on this day voluntarily appeared be- fore me , wife to the said , to me well-known to be the person whose name appears upon the within and forego- ing deed, and in the absence of her said husband declared that she had, of her own free will, signed the relinquishment of dower therein, expressed for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. In testimony whereof, I have hereunto set my hand, as such jus- tice of the peace, at the county of , on the day of , 18 . JOHN R. WALKER, J. P. [Gantt's Digest, p. 1060.] 7. Acknowledgment by husband and wife of a joint deed for the wife's land. STATE OF ARKANSAS, ) County of . ) On this day of , 18 , before me, , a justice of the peace within an/1 for the county of , in the State of Ar- kansas, appeared in person , to me personally well-known as the person whose name appears upon the within and foregoing deed of conveyance as one of the parties grantor, and stated that he had executed the same for the consideration and purposes there- in mentioned and set forth, and I do hereby so certify. And I further certify that on this day voluntarily appeared be- fore me , wife to the said , to me well-known to be the person whose name appears upon the within and forego- ing deed, and in the absence of her said husband declared that she had, of her own free will, executed the same for the purposes therein contained and set forth, without compulsion or undue in- fluence of her said husband. In testimony whereof, I have hereunto set my hand, as such jus- tice of the peace, in the county of , on the day of - , 18 . JOHN R. WALKER, J. P. [Gantt's Digest, p. 1060.] ACKNOWLEDGMENTS. 173 ARKANSAS CONTINUED. 8. Proof of deed by subscribing witness. STATE or ABKANSAS, ) County of . ) Be it remembered, that on this day of , 18 , before me, , a justice of the peace in and for the county afore- said, personally appeared , one of the subscribing wit- nesses to the foregoing deed, to me personally well-known, who, being by me first duly sworn, on his oath stated, that he saw , grantor in said deed, subscribe said deed on the day of its date, [or, that that the said : , grantor in said deed, ac- knowledged in his presence, on the day of , 18 , that he had subscribed and executed said deed] for the uses and pur- poses and consideration therein expressed, and that he and , the other subscribing witness, subscribed the same as at- testing witnesses at the request of said grantor. In testimony whereof, I have hereunto set my hand, as such justice of the peace, at the county aforesaid, this day of , 18 . JAMES C. HUTCHINS, J. P. [Gantt's Digest, p. 1059.] [The preceding forms are given in reference to an acknowledg- ment before a justice of the peace ; but they are equally adapted to other officers, as a notary public, or commissioner of deeds.] CALIFORNIA. 9. Acknowledgment by grantor, STATE OF CALIFORNIA, ^ County of , } ss * On this day of , in the year , before me, [here in-' sert the name and quality of the officer] personally appeai'ed , known to me [or proved to me on the oath of ] to be the person whose name is subscribed to the within instrument, and acknowledged to me that he [or they] executed the same. [Form given in Civil Code, Sec. 1189.] A B . 10. Acknowledgment by a corporation. STATE OF CALIFORNIA, "> County of , j ss ' On this day of , in the year , before me, [here in sert the name and quality of the officer] personally appeared ~- , known to me [or proved to me on the oath of ] to be the president [or the secretary] of the corporation that executed the within instrument, and acknowledged to me that such corpora- tion executed the same. A B . [Form given in Civil Code, Sec. 1190.] 174 ACKNOWLEDGMENTS. CALIFORNIA CONTINUED. 11. Acknowledgment by a married woman. STATE OF CALIFORNIA,") County of -, ]" si On this day of -, in the year , before me [here in- sert the name and quality of the officer"] personally appeared , known to to me [or proved to me on the oath of to be the person whose name is subscribed to the within instru- ment, described as a married wotifanf and upon an examination, without the hearing of her )isband, I made her acquainted with the contents of the instrument, and thereupon she acknowledged that she executed th same, and that she does not wish to retract such execution.. A B . [Form given in Civil Code, Sec. 1191.] 12. Acknowledgment when wife joins in deed. STATE OF CALIFORNIA, ) County of , ]" Si On this day of , A. D. one thousand eight hundred and seventy , before me [here insert the name and quality of thi officer'] personally appeared , and , his wife, whose names are subscribed to the annexed instrument, known to me to be the same persons described in and who executed the said instrument, who each of them acknowledged to me that they re- spectively executed the same. And the said , describecL as a married woman and the wife of/ the said , upon Examination, without the hearing of her husband, was made acquainted by me with the contents of said instrument, and thereupon she acknowledged to me that she executed the same, and that she does not wish to retract such exe- cution.. [Signature and title.'] [If taken without tlla State, add : " In testimony whereof, I have hereunto set my hand and affixed my official seal, the day and year first above written." By Sec. 1188, Civil Code, amended 1874, a certificate may be either annexed to or written on the instrument.] 13. Acknowledgment by grantor -under power of attorney. STATE OF CALIFORNIA,") County of , |. 8S On this day of , A. D. one thousand eight hundred and seventy , before me, , a in and for the said - county, personally appeared , known to me [or proved to me on the oath of ] to be the same 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. [Form given in Civil Code, Sec. 1192.] [Signature and title.'] ACKNOWLEDGMENTS. 175 CALIFORNIA CONTINUED. 14. Proof by subscribing witness known to the officer. STATE OF CALIFORNIA, gg County of - , ) On this - day of - , 18 - , before me [here insert the name and quality of the officer] personally appeared -- , personally known to me to be the same person whose name is sub- scribed to the annexed instrument as a witness thereto, who, being by me duly sworn, deposed and said : That he resided at - , in the county of - , State of* - ; that he was present and saw - - , known to him to be the same person described in and who executed the annexed instrument as a party thereto, sign, seal, and deliver the same, and that the said -- acknowledged in the presence of deponent that he executed the same freely and volun- tarily, and for the uses and purposes therein mentioned, and. that he, the deponent, thereupon signed his name as a subscribing wit- ness thereto. A - B - . [By the Civil Code, Sec. 1195: "Proof of the execution of an instrument, when not acknowledged, may be made : 1st. By the party executing it, or either of them ; or 2d. By a subscribing wit- ness ; or 3d. By other witnesses " in certain cases.] COLORADO. 15. Acknowledgment by grantor. STATE OF COLORADO, ) County of , j Be it known, that on this day of , 18 , before me, -, personally came A B, to me personally known as the same person described in and who executed the foregoing instrument, and acknowledged the execution thereof to be his free act and deed, for the uses and purposes therein mentioned.* Witness, etc. [Signature and title.] 16. The same where the wife joins. [Insert in tlie preceding form at the */] And at the same time personally appeared before me the within named C B, wife of the said A B, who, being by me privately examined, separate and apart from her husband, acknowledged that she signed, sealed, and de- livered the said instrument as her voluntary act and deed, freely and without any threat, compulsion, or fear of her said husband. 176 ACKNOWLEDGMENTS. CONNECTICUT. 17. Acknowledgment by grantor. STATE OF CONNECTICUT, I County of , j Si On this day of , 18 , personally appeared A B, signer and sealer of the foregoing instrument, and acknowledged the same to be his free act and deed, before me. [/Signature and title.'] [In Connecticut, two witnesses are required ; but by their statute it is provided that deeds executed in another State or Territory may be executed and acknowledged there, in accordance with the laws thereof. But both execution and acknowledgment must con- form : thus, execution in New York with but one witness, and ac- knowledgment there before a Connecticut commissioner, is insuffi- cient. Farrell Foundry v. Dart, 26 Conn. 376.] 18. Acknowledgment of a deed by a corporation. STATE OF CONNECTICUT,") County of , J Si On this day of , 18 , personally appeared A B, who, being duly authoi'ized and appointed by vote of the directors of the said, [naming the corporation^ the agent of said company, for the purpose of executing the foregoing instrument, acknowledged that he executed the same as the free act and deed of the said cor- poration, and as his own free act and deed, before me. [/Signature and title."] DAKOTA. 19. Acknowledgment by grantor. TERRITORY OF DAKOTA, County of TA,| I, th Be it remembered, that on this day of , 18- before me, the subscriber, personally came A B, to me personally known as the same person described in and who executed the fore- going instrument of writing, and acknowledged the execution thereof to be his free act and deed, for the uses and purposes there- in mentioned. In witness whereof, I have, this day of , 18 , made this certificate, and hereunto set my hand. [Signature and title."] [A private acknowledgment is only required when the wife con- veys property in her own right ; and the form is similar to that previously given for Colorado. Two witnesses are necessary to ACKNOWLEDGMENTS. 177 DAKOTA CONTINUED. the conveyance ; but deeds executed without the* Territory and within the United States may be executed according to the laws of the place of execution, and may be acknowledged before any officer authorized by the laws of the place to take acknowledgments. Laws of Dakota, (1862) p. 269. When a deed is executed out of the State, a certificate must accompany it to show it is executed ac- cording to the law of the place.] DELAWARE. 20. Acknowledgment by husband and wife. THE STATE OF DELAWAKE, ) County of , j Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , personally came before the subscribers, two of the justices of the peace for county aforesaid, and , his wife, parties to this inden- ture, known to us personally [or proved on the oath of ] to be such, and severally acknowledged said indenture to be their act and deed respectively ; and that the said , being at the same time privately examined by us, apart from her husband, ac- knowledged that she executed the said indenture willingly, without compulsion, or threats, or fear of her husband's displeasure. Witness our hands the day and year aforesaid. [Signatures and titles."] [This form is prescribed in the Code, p. 502. If the acknowl- edgment be made by a single grantor, or a private examination only is taken, the form will be varied to suit each case. Where an acknowledgment is taken in a Court, the authentication will be under the hand or seal of the clerk or prothonotary ; if before the chancellor or other officer, it will be under his hand.] 21. Acknowledgment of the deed of a corporation. STATE OF DELAWARE, \ County of , j Be it remembered, that on the day of , in the year before us , [or me, as the case may be] came A B, the president of the Bank of , to us personally known, and who, being by us duly sworn, deposes and says : That he resides in the village of , in said county ; that he is president of the Bank of ; that the seal affixed to the within indenture is the corpo- rate seal of the president, directors, and company of the said bank, and was affixed to the said indenture by order of said directors, for the uses therein expressed; and that he by like order did subscribe his name thereto, as president of said bank. NOTARIES 12. [Signatures and titles."] 178 ACKNOWLEDGMENTS. DISTRICT OF COLUMBIA. 22. Acknowledgment by grantor. STATE OF County of - , j I, A B, a justice of the peace, [or other prescribed officer, giving his title] in arid for the county [or city or parish or district] afore- said, in the State [or Territory or district] of - , do hereby cer- tify that C D, a party, [or C D and E F, etc., parties] to a certain deed bearing date on the - day of - , and hereto an- nexed, personally appeared before me in the county [or city, etc.,] aforesaid, the said C D [or C D and E F, etc.,] being "person- ally well-known to me as [or proved by the oaths of credible wit- nesses before me to be] the person [or persons] who executed the said deed, and acknowledged the same to be his [her or their] act and deed. Given under my hand and seal this - day of - . A. B. [SEAL.] 23. Acknowledgment by married woman. STATE OF , ") County of , ]" si I, A B, a justice of the peace, [or other prescribed officer, giving title] in the county [or city, etc.] aforesaid, in the State [or Terri- tory, etc.] of , do hereby certify that C D, the wife of E F, party to a certain deed bearing date on the day of - , and hereunto annexed, personally appeared before me in the county [or city, etc.] aforesaid, the said C D being well known to me [or proved by 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 ex- plained to her, the said E F 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. Given under my hand and seal this day of . A. B. [SEAL.] [These forms are prescribed in the Statute, Rev. Stat. p. 52. The statute provides that acknowledgments of deeds may be made before any of the following officers of the State, district, county, or Territory within the United States, in which the person making the deed may be : 1st. Before any judge of a Court of Record or Law. 2d. Before any chancellor of a btate. 3d. Before any judge of the Supreme, Circuit, District or Territorial Courts of the United States. 4th. Before any justice of the peace. 5th. Before any notary public. 6th. Before any commissioner of the Circuit Court of the district appointed for that purpose. When made beyond the limits of the district within the United States, a certificate of the official character of the officer, under the official seal of a register, clerk, or other public officer having cogni- zance of the fact, must be attached.] ACKNOWLEDGMENTS. 179 FLORIDA. 24. Acknowledgment by husband and wife. STATE OF FLORIDA, ) County of , ) On this day of , 18 , before me [name and title of officer] personally appeared A B, and C B, his wife, to me known to be the persons described in and who executed the foregoing in- strument, and severally acknowledged the execution thereof to be their free act and deed, for the uses and purposes therein men- tioned. And the said C B, the wife of said A B, on a private ex- amination by me, separate and apart from her husband, did ac- knowledge that the said deed of renunciation and relinquishment of dower, and the said acknowledgment, was made freely and vol- untarily, and without any compulsion, constraint, apprehension, or fear of or from her said husband. [Signature and title. \ 25. Relinquishment of dower when taken out of the State. STATE OF , ) ) City and County of Be it remembered, that on this day of , in the year of our Lord 18 , before me, the clerk of the Court, for the [city or] county of , and State of , which said Court is a Court of Record, personally came , wife of , to me well-known as the person described in and who executed the foregoing deed of conveyance, [as the case may bej and acknowl- edged that she made herself a party to and executed the same for the purpose of relinquishing her dower in and to the lands and tenements therein described ; and said , on a private ex- amination, taken and made before me, in the presence of the hon- orable , judge of our said Court, separately and apart from her said husband, acknowledged and says that the said relinquish- ment and renunciation of dower was and is made freely and vol- untarily, and without any compulsion or constraint, apprehension or fear, of or from her said husband, the said , to which acknowledgment the said has, in my presence, and in the presence of the said , judge of our said Court, this day set her hand and seal. Witness my hand and the seal of our said Court at , in , this the day and year first above written. [Seal of L : ourt.~\ [Signature of wife.] [SEAL.] A B, CLERK, etc. [The statute provides that when any relinquishment of dower shall be made out of the State, the acknowledgment shall, if made in the United States, be taken by the clerk or prothonotary of some Court of Record in the State, Territory, or district in which it shall be made, in the presence of the judge or justice, or of one of 180 ACKNOWLEDGMENTS. FLORIDA CONTINUED. the judges or justices of the Court to which the clerk or prttho- notary who takes the acknowledgment shall belong, and such ac- knowledgment so taken shall be certified by the clerk or prothono- tary taking it under the seal of the Court, if it have one, and if it have none, it shall be stated in the said certificate ; and the taking of the said acknowledgment and the certificate of the clerk or prothonotary shall be authenticated under the hand of the judge or justice present at the making thereof, by his certifying that the said acknowledgment was made in his presence, and that the per- son acting as clerk or prothonotary was, at the time of his so doing, the clerk or prothonotary of the Court of which he is judge or justice. Bush's Dig. p. 150.] 26. Acknowledgment without State, grantor not personally known. STATE OF County of On this day of , 18 , before me, I K, a commissioner duly appointed and authorized by the executive authority, and un- der the laws of the State of Florida, to take within the State of proof and acknowledgment of deeds, etc., to be used and re- corded in said State of Florida, personally appeared A B, who was proven to me satisfactorily to be the person described in and who executed the foregoing instrument, by the oath of M N, who, being by me duly sworn, did depose and say : That he resided in in the county of ; that he was acquainted with the said A B, and that he knew him to be the same person described in and who executed the within conveyance ; and thereupon the said A B acknowledged the execution thereof to be his free act and deed for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand and affixed my seal of office, at , the day and year first above written. [Signaturejfind title."] GEORGIA. 27. Acknowledgment by grantor. STATE OF GEORGIA, ) County of , } Si Be it remembered, that on this day of , one thousand eight hundred and , before me, the undersigned, [naming officer and title"] personally came A B, to me known to be the person described in and who executed the foregoing [or within] conveyance, and acknowledged the same to be his free act and -deed. [Signature and title.'] ACKNOWLEDGMENTS. 181 GEORGIA CONTINUED. [Power in Georgia is only in the lands of which the husband was seized and possessed at the time of his death, as in Connecticut : Georgia Code, (1873) Sec. 1763 ; or to which the husband obtained title in right of his wife, and in such the wife will have to join in the deed to relinquish dower, and the form may be the following :] 28. denunciation of dower. STATE OF GEORGIA,) County of , ) I, , the wife of , do declare that I have, freely and with- out compulsion, signed, sealed, and delivered the above instrument of writing, passed between and , and I do hereby re- nounce all title or claim of dower that I might claim or be entitled to after the death of , my said husband, to or out of the lands or tenements therein conveyed. [Signature of wife.] 29. Acknowledgment of husband and wife. STATE OP GEORGIA,) County of , j ss> Be it remembered, that on this day of , A. D. , before , and , his wife, to me personally known to be the individuals named in and who executed the foregoing deed, for the purposes therein named and mentioned ; and the said , being duly examined by me, separately and apart from her said husband, did declare that she did, freely and voluntarily, and without compulsion from her said husband, sign, seal, and deliver the said deed for the purposes therein mentioned, with intention thereby to renounce, give up, and forever quit-claim her right of dower and thirds, and all her other interest of and to the lands and tenements therein mentioned and conveyed. [Signature and title.'] IDAHO. 30. Acknowledgment by grantor ', prescribed. TERRITORY OF IDAHO, ") County of , j 6S * On this day of , A. D. fore me, [name and style of officer] A B, personally" known to me to be the person described in and who executed the foregoing in- strument, and who acknowledged to me that he executed the same freely and voluntarily, for the purposes therein mentioned. [Signature and title.] [For form for private acknowledgment of wife, adopt form given for California.] 182 ACKNOWLEDGMENTS. ILLINOIS. 31. Acknowledgment by grantors. STATE OF ILLINOIS, ") County of , j Si I, [here give name of officer and his official title] do hereby cer- tify that [name of grantor, and, if acknowledged by icife, her name, and add " his wife"] personally known to me to be the same person whose name is [or are] subscribed to the foregoing instrument, 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 [private or official, as the case may be] seal, this [day of the month] day of [month], A. D. [year]. [Signature of officer] [Seal.] [This is the form prescribed in the statute. It is provided that a deed executed without the State, and within the United States, may be executed and acknowledged in accordance with the laws of the place of execution, if certified by a clerk of a Court of Record to be so done. But it must conform wholly to the laws of one State, or to those of the other. Rev. Stat. 1874, p. 277. It seems that conformity may be shown by producing a copy of the laws of a State, as well as by supplying a certificate. Hurt v. McCartney, 18 111. 129: A certificate by a notary of another State should be under his official seal. Booth v. Cook, 20 111. 129.] INDIANA. [There is no occasion for a private acknowledgment by the wife, and the ordinary form of acknowledgment will suffice, but the following form, much simplified, is given by statute :] 32. Acknowledgment by grantor. STATE OF INDIANA, ) County of , j Before me, M N, a judge [or justice, as the case may be] this day of , 18 , A B acknowledged the execution of the tf ' O annexed [or within] deed [or mortgage, as the case may be]. [ Official seal, if any] [/Signature and title] ACKNOWLEDGMENTS. 183 IOWA. 33. Acknowledgment by grantor. STATE OF IOWA, County of ss. This is to certify, that on this day of , A. D. 18- before me [name and style of officer] * personally appeared A B, personally known to me to be the identical person whose name is affixed to the foregoing deed [or other instrument] as grantor there- in, named and acknowledged the same to be his voluntary act and deed, for the uses and purposes therein mentioned. In witness whereof, I have hereunto set my hand [and the seal of my office] on the day and year first above written. [ Official seal, if am/.] [Signature and title."] 34. Where parties are not personally known. [As in previous form after * :] personally came A B and C D, both proven to me satisfactorily to be the same identical persons described in and who executed the within conveyance, by the oath of M N, [witness thereto] who, being by me duly sworn, did de- pose and say: That he resided in , in the county of ; that he was acquainted with the said A B and C D ; that he knew them to be the same persons described in and who executed the within conveyance ; and thereupon they severally acknowledged, before me, that they executed the same as their voluntary act and deed for the uses and purposes therein mentioned. In witness, etc. KANSAS. [Follow forms for Iowa.] KENTUCKY. 35. Acknowledgment within the State. STATE OF KENTUCKY, gg County of - , \ Be it remembered, on this - day of - , 18 , before me, M N, [county clerk of the County Court of said county] at - , per- sonally came A B, [and C B, his wife] to me known to be the person [or persons] described in and who executed the within deed, and [severally] acknowledged that he [or they] executed the same, for the uses and purposes therein mentioned. Given under my hand and seal of office. M - N - . 184 ACKNOWLEDGMENTS. KENTUCKY CONTINUED. [A certificate of acknowledgment taken within the State need not 8et forth the private examination ; but such private examination is necessary out of the State, and then the certificate will be in the following form, which is prescribed by statute :] 3t>. A cknowledgment taken without the State. COMMONWEALTH [or kingdom] OF , \ County [or town, or city, or department, etc.] ) I, A B, [here give his title] do certify that this instrument of writing from C I) and wife, E F, [or from E F, wife of C D] was this day produced to me by the parties, and the contents and effect of the instrument being explained to the said E F 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. Given under my hand and seal of office. A B LOUISIANA. 37. Authentic act of sale and wife's renunciation. STATE OF LOUISIANA, ") County of , J3e it remembered, that on this day of , A. D. 18 , before me, M N, a commissioner of the State of Louisiana, duly commissioned and appointed by the governor thereof, for the said county and State of , personally came and appeared A B, at present residing at , in gaid county, who declared [here will fol- low the conveyance, e. g., thus :] that in consideration of - , to him in hand paid by the said Y Z, the receipt whereof is hereby acknowledged, he, the said appearer, does hereby grant, bargain, sell, convey, and confirm unto Y Z, of , all [here insert de- scription of the premises] TO HAVE AND TO HOLD the same unto the said Y Z, his heirs and assigns forever. And now personally appeared Mistress C B, of lawful age and wife of said A B, who did declare unto me that it is her wish and intention to release, in favor of the said Y Z, the real estate above referred to from the matrimonial, dotal, paraphernal, and the other rights, and from any claims, mortgages, or privileges to which she is or may be entitled, whether by virtue of her marriage with her said husband, or otherwise. Whereupon, I, the said commissioner, did inform the said wife, verbally, apart and out of the presence of her said husband, and before receiving her signature, that she had, by the laws of the State of Louisiana, a legal mortgage on the property of her said husband : first, for the restitution of her dowry, and for the reinvestment of the dotal property sold by her ACKNOWLEDGMENTS. 185 LOUISIANA CONTINUED. husband, and which she brought in marriage, reckoning from the celebration of the marriage ; second, for the restitution and rein- vestment of the dotal property by her acquired since marriage, whether by succession or donation, from the day the succession was opened, or the succession perfected ; thirdly, for nuptial pres- ents ; fourthly, for debts by her contracted with her said hus- band; and fifthly, for the amount of her paraphernal property alienated by her, and received by her said husbandj or otherwise disposed of for the individual interest of her said husband. And the said wife did thereupon declare unto me, commissioner, that she was fully aware of and acquainted with the nature and extent of the matrimonial, dotal, paraphernal, and other rights and privileges thus secured to her by the laws of the said State of Louisiana, in the property of her said husband; and that, availing herself of the rights secured to her by the second section of an act passed by the legislature of the said State of Louisiana, authorizing wives to make valid renunciation, etc., approved on the 27th day of March, 1835, she, nevertheless, did persist in her intention of renouncing not only all the rights, claims, and privileges herein- before enumerated and described, but all others, of any kind or nature whatsoever, to which she is or may be entitled by any law now or heretofore in force in the said State of Louisiana. And the said husband, being now present, aiding and authorizing his said wife in the execution of these presents, she, the said wife, did again declare that she did, and doth hereby, make a formal renunciation and relinquishment of all her said matrimonial, dotal, paraphernal, and other rights, claims, and privileges, in favor of the said Y Z, binding herself and her heirs, at all times, to sustain and acknowl- edge, at all times, the validity of this renunciation. Thus done and passed in my office, in the said city of , in the presence of O P and Q K, competent witnesses, who hereunto subscribe their names, together with the said appearers and me, commissioner, on the day of , A. D. eighteen hundred and [Signatures of parties, of witnesses, and of officer, and his title and official seal.] 38. Acknowledgment of private act. STATE OF LOUISIANA,") County of , ) Be it remembered, that on the day of , in the year one thousand eight hundred and , before me, M N, a commissioner, resident in the city of , duly commissioned and qualified by the executive authority, and under the laws of the State of Louisi- ana, to take acknowledgments of deeds, etc., to be used or recorded therein, personally appeared A B, to me known to be the individual named in and who executed the above [or foregoing] conveyance, [or instrument] and acknowledged to me that he did sign, seal, and 186 ACKNOWLEDGMENTS. LOUISIANA CONTINUED. deliver the same as his free act and deed, on the day and year therein mentioned, and for the consideration, uses, and purposes therein expressed. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year aforesaid. [ Official seal.~\ [Signature and title.'} MAINE. 'Acknowledgment by grantor. STATE OP MAINE, County of , ^ ss. Town of , day of , 18 . Then personally appeared A B, [and C B, his wife] the persons [or one of the persons] described in and who executed the foregoing instrument, and [severally] acknowl- edged that he [or they] did sign and seal the same as his [or their] free act and deed, before me. [Signature and title.'] \Seal> if any.'] [There is no private acknowledgment required from the wife, nor, it may here be said, in any of the New England States, except in Rhode Island.] MARYLAND. 40. Acknowledgment within the State. STATE OP MARYLAND, ") " County of , j I hereby certify that, on this day of , in the year , before the subscriber, [here state style of the officer taking the ac- knowledgment^ personally appeared A B, and acknowledged the foregoing deed to be his act. [Signature and title.] 41. Acknowledgment by husband and wife. STATE OP MARYLAND, ) gg County of , ) I hereby certify that, on this day of , in the year , before the subscriber, [here insert the official style of the judge tak- ing the acknowledgment] personally appeared A B and C B, his wife, and did each acknowledge the foregoing deed to be their re- spective act. [Signature and title.] ACKNOWLEDGMENTS. 187 MARYLAND CONTINUED. 42. Acknowledgment taken without the State. STATE OF , \ County of , ) [As in Form 40, except the attestation will be as follows :] In testimony whereof, I have caused the seal of the Court to be affixed, [or have affixed iny official seal] this day of , 18 . [Signature, title, and seal.] [The preceding forms are given in the statute ; but it is provided that " any form of acknowledgment, containing in substance the foregoing forms, shall be sufficient." Maryland Code, (1860) Art. 24, Sees. 66-69.] MASSACHUSETTS. 43. Acknowledgment within the State. COMMONWEALTH OF MASSACHUSETTS,) County of , f ss> [Date.-] Then personally appeared the within [or above] named A B, [and C B his wife] and acknowledged the foregoing instrument to be his [or their] free act and deed before me. [Signature and title."] 44. Acknowledgment by attorney in fact. COMMONWEALTH OF MASSACHUSETTS,) County of , I Si [Date.} Then A B, above mentioned to be the attorney of C D, above named, personally appeared and acknowledged the above instru- ment to be the free act and deed of the said C D ; and that in sub- scribing the name and affixing the seal of the said C D to the above instrument, he, the said A B, acted freely, and without any manner of duress. Before me, [/Signature and title.] 45. Acknowledgment without the State. STATE ,OF , ) County of , ) I, M N, a commissioner for the Commonwealth of Massachusetts, residing at , in the county of and State of , do cer- tify that on the day of , in the year A. D. 18 , the above named A B personally appeared before me at , in the county and State aforesaid, and acknowledged the foregoing instrument, by him signed, to be his free act and deed. 188 ACKNOWLEDGMENTS. MASSACHUSETTS CONTINUED. In witness whereof, I have hereto set my hand and affixed my official seal, at , in the county of and State of , on this day of , 18 . [Signature and title.] [ Official seal.] [This form is prescribed by the executive department of the State of Massachusetts, for commissioners resident in other States.] MICHIGAN. 46. Acknowledgment within the /State. STATE OF MICHIGAN, County of ss. Be it remembered, that on this day of , 18 , at , before me, M N, [a justice of the peace in and for said county] personally came the within named A B, personally known to me to be the person described in and who executed the within convey- ance, [or instrument] and acknowledged the same to be his free act and deed. [Signature and title.] 47. Acknowledgment by husband and wife. STATE OP MICHIGAN,) County of , j Sk Be it remembered, that on this day of , 18 , at , before me, M N, [a justice of the peace in and for said county"] personally came the within named A B, and C B, his wife, person- ally known to me to be the persons described in and who executed the within instrument, and acknowledged the same to be their free act and deed ; and the said C B, wife of the said A B, on a private examination before me, separately and apart from her said husband, acknowledged that she executed the same freely, and without any fear or compulsion from any one. [/Signature and title.] 48. Acknowledgment of deed by corporation. STATE OF ARKANSAS,) County of , \ Si On this day of , A. D. 18 , before me, [style of officer] personally appeared A B, known to me to be the president of the M N Company, and C D, known to me to be the secretary of said company, and they severally acknowledged the execution of the foregokig instrument of writing to be the free act and deed of the said company. And I further certify that I know the seal affixed to said instrument to be the corporate seal of the said company. [Signature and title.] ACKNOWLEDGMENTS. 189 MICHIGAN CONTINUED. [If taken without the State, insert, " In witness," etc. Compare this form for acknowledgment by a corporation with those given for California, Delaware, and New York.] MINNESOTA. 49. Acknowledgment by grantor. STATE OF MINNESOTA, County of 1 jss. Be it remembered, that on the day of , 18 , before the undersigned came A B, [and C D] to me known to be the iden- tical person [or persons] described in and who executed the fore- going deed, and [severally] acknowledged that he [or they] executed the same freely and voluntarily, for the uses and purposes therein expressed. [Signature and title.] 50. Proof by a subscribing witness before a Court of Becord with- in the /State. STATE OF MINNESOTA, ") County of , ) Be it remembered, that on this day of , 18 , it appeai-- ing to the Court that A B, the grantor in the within [or annexed] deed to Y Z, bearing date the day of , 18 , has died, [or departed from this State, or resides out of this State, as the case may be] not having acknowledged the execution of such deed, M N, a competent subscribing witness to said deed, appeared in open Court, and, being duly sworn according to law, deposed and said : That he is the identical person of that name who attested the said deed as a subscribing witness ; that he saw the said A B duly execute the said deed for the purposes therein stated, and that he, the said M N, and O P, the other subscribing witness to said deed, then and there subscribed the same as witnesses in the pres- ence of said A B, and in the presence of each other. In testimony whereof, I, G H, clerk of said Court, which is a Court of Record, have hereunto set my hand and affixed the seal of said Court, this day of , 18 . [Seal of Court.] [Signature] Clerk of Court. MISSISSIPPI. 51. Acknowledgment by grantor. STATE OF MISSISSIPPI,) County of , j Si On this day of , 18 , personally appeared before me, [giving name and title of officer] the above-named [or within- 190 ACKNOWLEDGMENTS. MISSISSIPPI Cox T mr/Ei>. named] A B,* who acknowledged that he signed, sealed, and de- livered the foregoing deed, on the day and year therein mentioned, as his voluntary act and deed. Given under my hand [and seal] this day of , A. D. one thousand eight hundred and . [Seal, if any.] [Signature and title.] 52. Acknowledgment by husband and wife. [As in the foregoing form to the *, continuing :] and C B, his wife, who severally acknowledged that they signed, sealed, and delivered the foregoing deed, on the day and year therein mentioned, as their voluntary act and deed. And the said C B, upon a private exam- ination before me, apart from her husband, previously acknowl- edged that she signed, sealed, and delivered the same as her volun- tary act and deed, freely, without any fear, threats, or compulsion of her husband. Given, etc. [as in the preceding form].' MISSOURI. 53. Acknowledgment by grantor. STATE OF MISSOURI,") County of , ) Be it remembered, that A B, who is personally known to the un- dersigned, a justice of the peace within and for said county [or other officer, as the case may be] to be the person whose name is subscribed to the within [or ioregoing] deed [or instrument of writing] as a party thereto, this day appeared before me, and ac- knowledged that he executed and delivered the same as his volun- tary act and deed, for the uses and purposes therein contained. Given under my hand, [and seal of office] this day of , 18 . [Signature and title.] [Seal, if any.] 54. Acknowledgment when grantor not personally known. STATE OF MISSOURI, ") County of , j ?s< Be it remembered, that on this day of , 18 , at , A B personally appeared before the undersigned, a justice of the peace within and for said county; and CD and E F, two witnesses, having been by me first duly sworn, deposed and said : That the said A B is the person whose name is subscribed to the within [or fore- going] deed [or instrument of writing} as a party thereto ; and the said A B then and there acknowledged that he executed and de- ACKNOWLEDGMENTS. 191 MIS SOURI CONTINUED. livered the same as his voluntary act and deed, for the uses and purposes therein mentioned. Given, etc. [as in the preceding forni\. 55. By husband and wife to extinguish dower. STATE OF MISSOURI, ") County of , j si Be it remembered, that A B and C B, his wife, who are person- ally known to the iindersigned, a justice of the peace within and for said county, [or other officer, as the case may be] to be the per- sons whose names are subscribed to the within [or foregoing] deed [or instrument in writing] as parties thereto, this day appeared before me, and acknowledged that they executed and delivered the same as their voluntary act and deed, for the uses and purposes therein contained. And the said C B, being by me made acquainted with the contents of said deed, [or instrument] acknowledged, on an examination apart from her said husband, that she executed the same, and relinquishes her dower on the real estate mentioned, freely, and without compulsion or undue influence of her said husband. Given, etc. [as in Form 53~\. [The same form may be used when husband and wife execute a deed to convey the wife's separate property, but omit " and re- linquishes her dower in the real estate mentioned."] NEBRASKA. [The forms given for Iowa may be used ; and, as in Iowa, no private examination of married women is necessary.] NEVADA. [The forms are substantially the same as those for California ; and, as in that State, a private acknowledgment is required from married women.] NEW HAMPSHIRE. 56. Acknowledgment within the /State. STATE OF NEW HAMPSHIRE,) County of , ) On the day of , 18 , the above [or within] named A B [and C B, his wife] personally appeared, and acknowledged ACKNOWLEDGMENTS. NEW HAMPSHIRE CONTINUED. the above [or within] written instrument by him [or them] sub- scribed, to be his [or their] free and voluntary act and deed * before me. [Signature and title.'] 57. Acknowledgment without the State. [As in the preceding form to the *, then the following :] Before me, M N, a justice of the peace, [or a notary public, or other officer] in and for the State and county [and town] aforesaid. [/Scaly if am/.] [Signature and title.] NEW JERSEY. 58. Acknowledgment within the State. STATE OF NEW JERSEY, > gg County of , ) Be it remembered, that on this day of , 18 before me [giving name and title of officer] came A B, who I am satisfied is the grantor mentioned in the foregoing deed, [or instrument] and, I having first made known to him the contents thereof, he acknoAvl- edged that he signed, sealed, and delivered the same as his volun- tary act and deed, for the uses and purposes therein expressed. [Signature.] 59. Acknowledgment by husband and wife. STATE OF NEW JERSEY,) County of , ) Be it remembered, that on this day of , 18 , before me, [gitring name and title of officer] personally came A B, and C B, his wife, who I am 'satisfied are the grantors mentioned in the foregoing deed, [or instrument] and, I having first made known to them the contents thereof, they acknowledged that they signed, sealed, and delivered the same as their voluntary act and deed, for the uses and purposes therein mentioned. And the said C B, being by me examined, privately and apart from her husband, pre- viously acknowledged that she signed, sealed, and delivered the same as her voluntary act and deed, freely, and without any fea^r, threats, or compulsion of her husband. [Signature] 60. Acknowledgment of deed by a corporation. STATE OF NEW JERSEY, ") County of , ) Be it remembered, that on this day of , 18 , before me, [giving name and title of officer] personally came A B, who is, ACKNOWLEDGMENTS. 193 NEW JERSEY CONTINUED. . I am satisfied, the cashier of the bank at , who, being by me duly sworn, did depose and say : That he knows the corporate seal of said bank, and that the seal affixed to the foregoing convey- ance [or instrument] is the corporate seal of said bank ; and that the said seal was affixed to the said conveyance [or instrument] by order of the directors of said bank ; that C D is the president of said bank, and did sign the said conveyance [or instrument] by or- der of the said directors, in deponent's presence, and that he, this deponent, by like order, did sign his name thereto as the cashier of said bank. * [Signature.] 61. Acknowledgment without the State. STATE OF ,") County of , j ss ' Be it remembered, that on this day of , 18 , before the subscriber, a commissioner for the State of New Jersey, for taking the acknowledgment and proof of deeds, personally came A B, [and C B, his wife] known to me [or proven to my satisfac- tion] to be the grantor [or grantors] in the within conveyance [or instrument] named ; and, the contents thereof being by me first made known to him, he acknowledged that he [or to them, they ac- knowledged that they] signed, sealed, and delivered the same as his [or their] voluntary act and deed. [And the said C B, being by me examined, privately and apart from her husband, acknowledged that she signed, sealed, and delivered the same freely, without any fear, threat, or compulsion of her said husband.] All of which I certify under my hand and official seal. [Signature and title.] [ Official seal.] NEW MEXICO. 62. Acknowledgment by husband and wife. TERRITORY OF NEW MEXICO,) County of , j Be it remembered, that on this day of , 18 , before me, [naming Court or officer, with his title] personally came A B and C B, his wife, personally known to me as the persons executing the within, [or foregoing instrument] and severally acknowledged that they executed the same for the purposes therein mentioned. And the said C B, being first by me informed of the contents of the instrument, did confess, upon an examination independent of her husband, that she executed the same voluntarily and without the compulsion or illicit influence of her husband. [ Official seal.] [Signature and title] [The form for a single grantor is the usual one.] NOTARIES 13. 194 ACKNOWLEDGMENTS. NEW YORK. 63. Acknowledgment by grantor known to the officer. STATE OF NEW YORK,") County of , j S! On this day of , in the year 18 , before me person- ally came A B, to me known to be the individual described in and who executed the within [or above, or annexed] conveyance, [or instrument] and acknowledged that he executed the same for the purposes therein mentioned. [Signature and title."] 64. By grantor not known to the officer. STATE OF NEW YOEK, ) County of , j Si On this day of , in the year 18 , before me person- ally came A B, proven to me satisfactorily to be the individual de- scribed in and who executed the within [or above, or annexed] conveyance, [or instrument] by the oath of M N, who, being by me duly sworn, [or affirmed] did depose and say: That he resided in the city of , in the county of ; that he was acquainted with the said A B, and that he knew him to be' the same person de- scribed in and who executed the within conveyance, [or instru- ment] and thereupon the said A B acknowledged before me that he executed the same for the purposes therein mentioned. \ Signature and title.] 65. By husband and wife known to the officer. STATE OF NEW YOKK, ) County of , j Si On this day of ^, in the year 18 , before me personally came A B, and C B, his wife, to me known to be the individuals described in and who executed the within [or above, or annexed] conveyance, [or instrument] and severally acknowledged that they executed the same for the purposes therein mentioned. And the said C B, on a private examination by me made apart from her husband, acknowledged that she executed the same freely, and with- out any fear or compulsion of her said husband. [Signature and title.] 66. By husband and wife resident without the State. STATE OF , ) County of , j s; On this day of , in the year 18 , before me person- ally came A B, and also C B, his wife, who reside at : , in the ACKNOWLEDGMENTS. 195 NEW YORK CONTINUED. '. State of , and who executed the within [or above, or annexed] conveyance, [or instrument] and severally acknowledged that they executed the same for the purposes therein mentioned. [Signature and title. ~\ 67. By an attorney in fact, known to the officer. STATE OF NEW YOBK, County of 1 j-ss. On this day of , in the year 18 , before me person- ally came A B, the attorney of C D, known to me to be the individ- ual described in, and who, as such attorney, executed the within [or above, or annexed] conveyance, [or instrument] and acknowl- edged that he executed the same as the act and deed of C D, therein described, and for the purposes therein mentioned, by virtue of a power of attorney, duly executed by the said C D, bearing date the day of , in the year 18 , [and recorded in the office of the register, in and for the city and county of , on the day of , in the year 18 .] [Signature and title.] 68. By a sheriff, referee^ or receiver. STATE OF NEW YORK, ) County of , } Si On this day of , in the year 18 , before me person- ally came A B, sheriff of the county of , [or late sheriff of the county of , or referee in the cause within named, or receiver in, etc.] to me known to be the individual described in and who executed the within [or above, or annexed] conveyance, [or instru- ment] and acknowledged that he executed the same for the pur- poses therein mentioned. [Signature and title.~\ 69. Proof by subscribing witness, known to the officer. STATE OF NEW YORK, \ County of , ) On this day of , in the year 18 , before me person- ally ame M N, subscribing witness to the within [or above or an- nexed] conveyance, [or instrument] with whom I am personally acquainted, who, being by me duly sworn, said : That he resided in the city of ; that he was acquainted with A B, and knew him to be the person described in and who executed the said convey- ance, [or instrument] and that he saw him execute and deliver the same ; and that he acknowledged to him, the said M N, [naming witness] that he executed and delivered the same ; and that he, the said M N, thereupon subscribed his name as a witness thereto. [Signature and title.] 196 ACKNOWLEDGMENTS. NEW YORK CONTINUED. 70. Proof of a deed by a corporation signed by the president, cashier, or secretary. STATE OF NEW YORK,") County of , j On this day of , in the year 18 , before me person- ally came C D, secretary of the E Insurance Company, of the city of , with whom I am personally acquainted, who, being by me duly sworn, said : That he resided in the city of ; that he was the secretary of the E Insurance Company, of the city of ; that he knew the corporate seal of the said company ; that the seal af- fixed to the within [or above or annexed] conveyance [or instru- ment] was such corporate seal ; that it was so affixed by order of the Board of Directors of said company, and that he signed his name thereto by the like order as secretary of said company. And the said C D further said : That he was acquainted with A B, and knew him to be the president of said company ; that the signature of the said A B, subscribed to the said conveyance, was in the gen- uine handwriting of the said A B, and was thereto subscribed by the like order of the said Board of Directors, and in the presence of him, the said C D. [Signature and title.] NORTH CAROLINA. 71. Acknowledgment within the /State. STATE OP NORTH CAROLINA, to wit : [Date.] Before me, one of the, judges of the Supreme Court, [or other judge or clerk] came A BJ* the grantor or vendor in the foregoing deed, and acknowledged the execution thereof for the purposes therein expressed. [/Signature and title.] 72. JBy husband and wife. [As in the preceding. After * continue:] And C B, the bar- gainers in the foregoing deed, and acknowledged the execution thereof, for the purposes therein expressed ; she, the said C B, be- ing first privily examined by me, apart from her said husband, touching the free execution thereof, and acknowledged that she executed the same freely, and of her own accord, without fear or compulsion of her said husband, or any other person whatsoever, and that she voluntarily assents thereto. [/Signature and title] ACKNOWLEDGMENTS. 197 OHIO. 73. Acknowledgment within the State. STATE OP OHIO, ) County of , j ss - Before me, M N, a justice of the peace in and for said county, [or judge of Court, or other officer, as the case may be] per- sonally appeared the within [or above] named A B, and acknowl- edged the signing and sealing of the within [or above] conveyance [or power of attorney, or mortgage, or lease, or other instrument] to be his voluntary act and deed, this day of , 18 . [Signature and title.] 74. J>y husband and wife. STATE OP OHIO, ) County of , j SS ' Before me, M N, a justice of the peace in and for said county, [or judge of the Court, or other officer, as the case may be] personally appeared the within [or above] named A B, and C B, his wife, and acknowledged the signing and sealing of the within [or above] conveyance [or power of attorney, or mortgage, or lease, or other instrument] to be their voluntary act and deed ; and the said C B, being at the same* time examined by me, separate and apart from her said husband, and the contents of said deed [or instrument] being made known to her by me, she then declared that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith as her act and deed, this day of , A. D. 18 . [Signature and title.] 75. By husband and wife without the /State. STATE OF County of - , SS Before me, M N, a commissioner of the State of Ohio, resident in said State and county, appeared the within [or above] named A B, and C B, his wife, and acknowledged the signing and sealing !of the within [or above] conveyance [or power of attorney, or mortgage, or lease, or instrument] to be their voluntary act and deed ; and the said C B, being at the same time examined by me, separate and apart from her husband, and the contents of said instrument made known to her by me, she then declared that she did voluntarily sign, seal, and acknowledge the same, and that she is still satisfied therewith, this - day of - , A. D. 18 - . [xS County of , j On this day of , in the year 18 , before me person- ally came A B, to me known to be the individual described in and who executed the within [or foregoing] conveyance, [or bond, or letter of attorney, or instrument in writing] and acknowledged that he executed the same for the uses and purposes therein mentioned. [Signature and title."] PENNSYLVANIA. 77. Acknowledgment within or without the State. COMMONWEALTH or STATE OF , ) County of , j Be it remembered, that on this day of , A. D. 18 , before me, the subscriber, a justice of the peace of , [or a judge of the Court of , or one of the aldermen of the city of , or a notary public for the county of ] personally appeared A B, the grantor in the foregoing indenture [or deed or conveyance] named, and in due form of law acknowledged the said indenture to be his act and deed, and desired that the same, as such, might be recorded according to law. [Signature and title.'] . [Seal.] 78. By husband and wife. COMMONWEALTH or STATE OF PENNSYLVANIA,! County of , ) Be it remembered, that on this day of , 18 , before me, [name and style of officer] personally came A B and C B, his wife, and severally acknowledged the above deed [or conveyance] to be their act and deed, and desired that the same might be re- corded as such ; and the said C B, being of lawful age, on a private examination by me, separate and apart from her husband, the con- tents of said deed being first made fully known to her, declared that she did voluntarily, and of her own free will and accord, and as her own free act and deed, deliver the said deed [or conveyance] without any coercion or compulsion of her said husband. ACKNOWLEDGMENTS. 199 PENNSYLVANIA CONTINUED. In testimony whereof, I have hereunto set my hand and seal the day and year last above named. [Signature and title.'] [Seal'] 79. Acknowledgment of corporation. COMMONWEALTH or STATE OF PENNSYLVANIA,) County of , j 8f Be it remembered, that on this day of , 18 , before me, [name and style of officer] personally came the above named A B, president of the above named corporation, who, being duly sworn, deposes and says : That he was personally present at the ex- ecution of the above written indenture, [or other instrument] and saw the common seal of the said [naming the corporation] duly affixed thereto ; and that the seal so affixed is the common and cor- porate seal of the said ; and that the above written indenture [or other instrument] was duly sealed and delivered by him, as and for the act and deed of the said corporation of the , for the uses and purposes therein mentioned ; and that the name of this deponent, subscribed to said deed as the president of said corpora- tion, in attestation of the due execution and delivery of said deed, is of this deponent's proper handwriting. [Signature of deponent] Sworn and subscribed before me, this day of , 18 , [Signature, title, and seal of officer.] RHODE ISLAND. 80. Acknowledgment within the State. STATE OF RHODE ISLAND, the day of , 18 . Providence, to wit : Then personally appeared the within-named A B, and acknowledged the within instrument to be his free volun- tary act and deed, hand and seal before me. [Signature and title.] 81. The same by husband and wife. [A.s in the preceding form, adding as follows :] And afterward on the same day came C B, wife of the said A B, and was by me examined, privily and apart from her said husband, when the said above written instrument, by her subscribed, was shown and ex- plained to her by me, when she declared to me that the same was her free voluntary act and deed, hand and seal, and that she did not wish to retract the same. [Signature and title] [In case of a relinquishment of dower, insert after " hand and seal," " in release of her dower interest in the lands therein men- tioned."] 200 ACKNOWLEDGMENTS. RHODE ISLAND CONTINUED. 82. Acknowledgment without the State. STATE OF , \ County of , } S8 ' Be it remembered, that on the day of , in the year one thousand eight hundred and , before me, the undersigned, M N, a commissioner resident in , duly commissioned and quali- fied by the executive authority, and under the laws of the State of Rhode Island, to take tfie acknowledgments of deeds, etc., to be used or recorded therein, personally appeared [etc., continuing as in preceding forms}. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year aforesaid. [Seal.] [Signature and title.] SOUTH CAROLINA. 83. Proof by subscribing witness. STATE OF SOUTH CAROLINA, ) District [or County] of , j Be it remembered, that on this day of , 18 , before me, [giving name and style of officer] personally appeared M N, with whom I am personally acquainted, and made oath that he saw the within named A B sign, seal, and as his act and deed, deliver the within deed for the uses and purposes therein mentioned ; and that he [with O P, in the presence of each other] subscribed his name as a witness of the due execution thereof. Sworn to before me, this day of [as witness my hand and official seal]. [Signature and title."] [It is usual to prove withJh the State by a witness as in the fore- going; but when acknowledged by the grantor, any of the ordinary forms may be used. The following form is prescribed. Rev. Stat. (1873) p. 430.] 84. Acknowledgment of release of dower. STATE OF SOUTH CAROLINA,) District [or County] of , ) ss * I, J P, [giving name and official title of officer] do hereby certi- fy unto all whom it may concern, that C B, the wife of the within named A B, did this day appear before me, and, upon being private- ly and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever re- linquish unto the within named Y Z, his heirs and assigns, all her ACKNOWLEDGMENTS. 201 SOUTH CAROLINA CONTINUED. interest and estate, and also all her right and claim of dower of, in, or to all and singular the premises within mentioned and released. Given under my hand and seal, this day of , A. D. one thousand eight hundred and . [Signature of wife."] [Signature, title, and seal of officer.] TENNESSEE. 85. Acknowledgment by husband and wife. STATE OF TENNESSEE, County of , On this day of , 18 , at , personally appeared before me, [giving name and title of officer] the within named bargainer, with whom I am personally acquainted, and who acknowledged that he executed the within instrument, for the pur- poses therein contained. And C B, the wife of the said A B, having appeared before me privately and apart from her husband, the said C B acknowledged the execution of the said deed to have been done by her freely, voluntarily, and understandingly, without compulsion or constraint from her said husband, and for the pur- poses therein expressed. Witness my hand and seal, the day and year first above written. [Seal] [Signature and title.] [The form for a single grantor is the same as the above, leaving out the sentence beginning, " And C B," etc. The seal is unnecessary if the acknowledgment be made before a judge, but in such case there must be annexed a certificate to the judge's official character, which may be by the clerk under the seal of the clerk, or, if he have none, under his private seal.] TEXAS. 86. Acknowledgment of married woman. STATE OF TEXAS, County of 7 ) Before me, - , judge of [or notary public of] - County, per- sonally appeared C B, wife of A B, parties to a certain deed or writing, bearing date the - day of - , and hereto annexed, and having been examined by me privily and apart from her hus- band, and having the same fully explained to her, the said C B ac- knowledged 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, to certify which I hereto sign my name and affix my seal, this - day of -- , A. D. - . [Signature and seal.] 202 ACKNOWLEDGMENTS. TEXAS CONTINUED. [This form is prescribed by the statute. Paschal's Dig. Art. 1003. The form for a single grantor is the same as that in New York. The certificate must in all cases be under seal.] VERMONT. L7. Acknowledgment by grantor. STATE OF VERMONT,] County of , J The day of , 18 . Then personally appeared A B, [and C B, his wife] to me known, and [severally] acknowledged the within instrument by him [or them] signed and sealed, to be his [or their] free act and deed, before me: [Signature and title.'} 88. Acknowledgment by agent of a corporation. STATE OF VERMONT, ") , County of , J SJ The day of , 18 . Then personally appeared A B, within named, to be the agent of the within named C D Company, and acknowledged the within instrument to be the free act and deed of the said C D Company. [Signature and title.'] [The last form is held sufficient in McDaniels v. Flower Brook Manfg. Co. 22 Vt. 274.] VIRGINIA. 89. Acknoicledgment within or without the State. STATE OF , \ County of , J Si I, M M, a commissioner appointed by the Governor of the State of Virginia for the State of , [or within the State, or a notary public for the county of ] do hereby certify that * A B, whose name is signed to the writing above, bearing date on the day of , 18 , has acknowledged the same before me at [or before me in my county]. Given under my hand and official seal, this day of , 18 . [Signature and title.'} [Seal, if any.] 'Iss. ACKNOWLEDGMENTS. 203 VIRGINIA CONTINUED. 90. Acknowledgment by a married woman. [As in the preceding form to the *, then continue :] and C B, the wife of A B, whose names are signed to the writing aboye, bear- ing date the day of , 18 , personally appeared before me, and being examined by me privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said C B, acknowledged the said writing to be her act, and declared that she had willingly executed the same, and does not wish to re- tract it. Given under my hand or official seal, this day of , one thousand eight hundred and . [Signature and title.] [tieal, if any.] f WASHINGTON TERRITORY. 91. Acknowledgment by husband and wife. TERRITORY OF WASHINGTON, County of , On this day of , 18 , before me, [here give name and title of officer] personally came A B, and C B, his wife, to me known to be the individuals described in and who executed the within [or foregoing] conveyance, and severally acknowledged that they signed, sealed, and delivered the same as their free act and deed, for the uses and purposes therein mentioned ; and the said C B, upon an examination by me, separate and apart from her husband, acknowledged that she did voluntarily, of her own free will, and without the fear of or coercion from her husband, execute the deed. Witness my hand, [and official seal] the day and year first above written. [Signature and title.] [Seal, if any.] [The form for the acknowledgment of a single grantor is the usual one.] o WEST VIRGINIA. 92. Acknowledgment by grantor. STATE, [or TERRITORY, or DISTRICT] OP WEST VIRGINIA, ) County of , j I, , [name and style of officer] do certify that , whose name [or names] is [or are] signed to the writing above, [or here- to annexed] bearing date on the day of , has [or have] this day acknowledged the same before me, in my said : . Given under my hand, this day of . [/Signature and title.] 204 ACKNOWLEDGMENTS. WEST VIRGINIA CONTINUED. [This form is prescribed by the Code of West Virginia, p. 469. The form for the acknowledgment of a married woman is the same as that for Virginia.] WISCONSIN. 93. Acknowledgment by grantor. STATE OF WISCONSIN, ) County of , f ss> Be it remembered, that on this day of , 18 , before me, [giving name and title of officer] personally came the within named A B, [and C B, his wife] to me known to be the identical person [or persons] described in and who executed the within deed, [or mortgage, or other instrument] and acknowledged the same to be his [or their] free act and deed, for the uses and purposes therein mentioned. [If without the jState, add:] In testimony whereof, I have here- unto set my hand and seal, the day and year first above written. [/Sea/.] [ Signature and title.'} [Two subscribing witnesses are necessary to a deed. A deed executed out of the State may be executed according to the laws of the place where it is executed; but if executed in the United States, and not acknowledged before a Wisconsin commissioner, there must be annexed a certificate by a clerk of a Court of Record, to the authority and signature of the officer, and to the fact that the deed is executed and acknowledged in conformity with the laws of the place.] o CANADA. 94. Form of acknowledgment in Lower Canada. (Province of Quebec.) On the day of , A. D. one thousand eight hundred and seventy , before me, A B, of , [a justice of the peace for the county of , or mayor of , or a notary public duly ap- pointed and sworn for ] personally came and appeared C I), the person who executed the foregoing deed, [power of attorney, or other instrument] and to me well-known as such, who then and there acknowledged that he had executed the same. Witness my hand and seal at , on the day and year first above written. A B . [Seal.] [The execution of deeds of lands situated in this province by parties residing in the United States will be valid if executed ac- cording to the laws or custom of the locality where executed. If ACKNOWLEDGMENTS. 205 CANADA CONTINUED. executed in presence of witnesses, one or all of such witnesses must make an affidavit of the authenticity of the signatures before the mayor or chief magistrate of the locality, who must give a certifi- cate to that effect, which certificate should then be authenticated by the nearest British consul. All such matters, as the number of witnesses, seals, etc., may be governed by the laws of the place of execution. If the authenticity of any such deed is questioned, it must be proved by evidence taken at the place of its execution by a commissioner appointed by the Court.] 95. Form of acknowledgment in Upper Canada. (Province of Ontario.) Proof by subscribing witness. STATE OF , ) County of , ) I, \liere insert name, residence, additional occupation or catting of the subscribing witness in full'] make oath and say: 1. That I was present and did see the within [or annexed] deed [mortgage or other instrument] and a duplicate thereof [if the fact} duly ex- ecuted, signed, sealed, and delivered, by A B and C D, the parties [or two of the parties] thereto. 2. That the said instrument and duplicate were executed at . 3. That I know the said parties so executing the said instrument. 4. That I am a subscribing wit- ness to the said execution of the said instrument and duplicate. [Signed'] E F . I, G H, of, etc., a notary public within and for , [or a judge or mayor, etc.] do hereby certify that the above named affidavit was duly taken, subscribed, and sworn to before me by the above nr.med E F, on the day of , A. D. 18 , at the of , in the State of . In testimony whereof, I have hereunto set my hand and affixed my official seal, the day and year last aforesaid. [Signature and title.~\ [Proof of deeds, mortgages, etc., for registration, is to be made by affidavit on the instrument, or securely attached to it, as follows : Within the Province, before any commissioner for taking affidavits, before the registrar of deeds or his deputy, or before a judge of any of the Superior Courts, or a County Court. In Great Britain, before a judge of the Superior Courts, or of a County Court, or the mayor or chief magistrate of any city, borough, or town corpo- rate, certified under the common seal of such city, etc., or a com- missioner appointed for taking affidavits in any of the Courts of Record of the Province. In any foreign country [as in the United States] before the mayor of any city, borough, or town corporate, certified under the common seal ; or before any British consul or 206 ACKNOWLEDGMENTS. CANADA CONTINUED. vice-consul resident in such country ; or before a judge of Court of Record, or a notary public, certified under his official seal. If different parties sign before different subscribing witnesses, each witness must make an affidavit as to the execution by the parties whose execution he attests, or the deed cannot be regis- tered.] VERIFICATION OF PLEADING. 96. As used in New York. COUNTY OF NEW YORK,") City of New York, j Sj George Reed, of said city, being duly sworn, says : That he is the plaintiff [or defendant] in the above entitled action ; that the fore- going complaint [or answer, or reply] is true to his own knowledge, except as to those matters stated therein on information and belief, and as to those matters he believes it to be true. GEORGE REED. Sworn to before me this day of , 18 . HOLLAND SMITH, Notary Public. 97. As used in California. CITY AND COUNTY OF SAN FRANCISCO, ss. George Reed, being duly sworn, deposes and says : That he is the plaintiff [or defendant] in the above entitled action ; that he has read [or heard read] the foregoing complaint, [or answer, or reply] and knows the contents thereof, and the same is true of his own knowledge, except as to those matters therein stated on his infor- mation and belief, and as to those matters he believes it to be true. GEORGE REED. Subscribed and sworn to before me this day of , 18 . [Seal.] HOLLAND SMITH, Notary Public. [A party who swears to the truth of a pleading, thereby affirms a knowledge of its contents, even though his affidavit does not con- tain the statement that he has read or heard it read, and knows the contents thereof. Patterson v. Ely, 19 Cal. 28.] 98. By two parties not united in interest. CITY AND COUNTY OF , ss. James Jackson and John Jones, being severally duly sworn, each for himself deposes and says : That he is one of the above named [207] 208 AFFIDAVITS. plaintiffs [or defendants] ; that he has read [or heard read] the foregoing complaint, [or answer, or reply] and knows the contents thereof, and the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true. JAMES JACKSON, JOHN JONES. Subscribed and sworn to before me this 'day of -, 18 . HOLLAND SMITH, Notary Public. 99. Verification by an attorney or agent. [The codes of procedure, in the modern practice, provide for the verification of a pleading by the attorney in fact or agent of a party who is absent from the county where the pleading is veri- fied, when such attorney or agent has knowledge of the facts, ena- bling him to make the verification.] STATE OF , > County of , ) James Reed, being duly sworn, deposes and says [the word " de- poses " is generally inserted in California] : That he resides in the [city and] county of , and is the agent of the plaintiff [or de- fendant] in the above entitled action ; that he has read [or heard read] the foregoing complaint, or answer, or reply] and knows the contents thereof, and the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true ; that the said plaintiff [or defendant] is absent from the [city and] county of , where his attorney resides ; and the facts are within the knowledge of this affiant. [In New YbrJc, and some other States, it is the practice to state, after this, the grounds of, the deponent's knowledge, but this is not required in California.] ' JAMES REED. Subscribed and sworn to before me this day of , 187 . HOLLAND SMITH, Notary Public. 100. By agent or attorney who holds note or bond. STATE OF , ) County of , j James Reed, being duly sworn, deposes and says : That he is the attorney [or agent] of the plaintiff in the above entitled action, for the purpose of collecting the amount sued for therein ; that the foregoing complaint is true of his own knowledge, [of course, it is unnecessary to say the attorney read the complaint, if he has drawn it\ except as to those matters therein stated on information and be- lief, and as to those matters he believes it to be true ; that the reason this verification is not made by the said plaintiff is that the AFFIDAVITS. 209 action is founded upon a written instrument for. the payment of money only, and such instrument is in the possession of deponent ; from which said instrument and statements made by the plaintiff to deponent, deponent's knowledge and belief are derived. JAMES REED. Subscribed and sworn to before me this day of ., 187 . HOLLAND SMITH, Notary Public. FORMS FOR PROOF OF CLAIMS. 101. Deposition for proof of debt in bankruptcy without security. IN THE DISTRICT COUKT OF THE UNITED STATES, FOB THE DISTRICT OF . In the Matter of ~\ RICHARD ROE, > In Bankruptcy. Bankrupt, y District of , ss. Be it remembered, that at , in the county of and State of , on the day of , A. D, 18 , before me, Holland Smith, a notary public for the State of California, residing in the city of San Francisco, and duly commissioned and sworn, person- ally came James Reed, of , in the county of and State of , and made oath and says : That the said Richard Roe, the person against whom a petition for adjudication of bankruptcy has been filed, at and before the filing of the said petition, was and still is justly and truly indebted to this deponent in the sum of dollars, for and on account of [here insert a particular account of the indebtedness'] which is the true consideration for said indebtedness, no part of which has been paid ; for which said sum of dollars, or any part thereof, this deponent says that he has not, nor has any person by his order, or to this deponent's knowledge or belief, for his use, had or received any manner of satisfaction or security whatsoever, nor lias any note, or other evidence of indebtedness, ever been given for the same. And this deponent further says : That the said claim was not procured for the purpose of influencing the proceedings under the Act of Congress, entitled, "An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2d, 1867; that no bargain or agreement, express or implied, has been made or entered into, by or on behalf of this deponent, to sell, transfer, or dispose of said claim, or any part thereof, against said bankrupt ; or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of this de- ponent for assignee, or any action on the part of this deponent, or NOTARIES 14. 210 AFFIDAVITS. any other person in the proceedings under this act, has been, is, or shall be in any way affected, influenced, or controlled. JAMES REED, Deposing Creditor. Subscribed and sworn to before me, this day of , 187 . [Seal.'] HOLLAND SMITH, Notary Public. 102. Deposition of proof of debt with security. IN THE DISTRICT COURT ov THE UNITED STATES, FOR THE DISTRICT OP . In the matter of ) RICHARD ROE, >- In Bankruptcy. Bankrupt. ) District , ss. Be it remembered, that at , in the county of and State of , on the day of , A. D. 18 , befoi'e me, Holland Smith, a notary public for the State of California, residing in the city of San Francisco, and duly commissioned and sworn, person- ally came James Reed, of , in the county of - , and State of , and made oath, and says : That the said Richard Roe, the person against whom a petition for adjudication of bankruptcy lias been filed, at and before the filing of the said petition, was, and still is, justly and truly indebted to this deponent [or the firm of Reed & Co., composed of this deponent and James Smith, doing business at J in the sum of dollars, for which said sum of dollars, or any part thereof, this deponent has not, nor has any person by his order, or, to this deponent's knowledge or be- lief, for his use, had or received any manner of satisfaction or security whatsoever, save and except the notes [or mortgage, etc.] hereinafter mentioned ; that the said claim was not procured for the purpose of influencing the proceedings under the act of Congress, entitled " An 'Act to establish a uniform system of bank- ruptcy throughout the United States," approved March 2d, 1867 ; that no bargain or agreement, express or implied, has been made or entered into, by or on behalf of this deponent, to sell, transfer, or dispose of said claim, or any part thereof, against said bankrupt ; or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of this deponent, or any other person, in the proceedings under said act, has been, is, or shall be, in any way affected, influenced, or controlled. [Here insert fa particular description of the debt ; also, of the security, and the estimated value of property held as security. Jf there are notes, the originals should be attached.] JAMES REED, Deposing Creditor. Subscribed and sworn to before me this day of - , 187 . HOLLAND SMITH, [Seal.] Notary Public. AFFIDAVITS. 211 [An agent or attorney may make proof of debt, and when he does so, after the concluding paragraph add in the forms: "And this deponent further says : That he is duly authorized by his prin- cipal to make this affidavit ; and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied." See U. S. Rev. Stat. Sec. 5078. By Act of Congress June 22d, 1874, notaries are authorized to take proof of debts in bankruptcy.] 103. Proof of claim, against estates. STATE OF , ) r( c > SS. County of , j James Reed, of the , in the county aforesaid, being duly sworn, deposes and says : That the foregoing claim against the estate of Richard Roe, deceased, is justly due and owing this de- ponent ; that no payments have been made thereon which are not credited, and that there are no offsets against the same, to the knowledge of this deponent. JAMES REED. Subscribed and sworn to before me this day of , 187 . HOLLAND SMITH, Notary Public. 104. Affidavit required of pre-emption claimant under Land Laws of t/ie United States. I, , claiming the right of pre-emption, under Sec. 2259 of the Revised Statutes of the United States, to the quarter of section of number , of township number , of range num- ber , subject to sale at , do solemnly swear [or affirm] that I have never had the benefit of any right of pre-emption under said section ; that I am not the owner of three hundred and twenty acres of land in any State or Territory of the United States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use and benefit ; and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whomsoever, by which the title which I may acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except myself. [ Claimants signature.] I, , of the Land Office at , do hereby certify that the above affidavit was taken and subscribed before me, this day of , A. D. J. o * " "~ - [By Sec. 2262, Rev. Stat. U. S., the claimant is required to make this affidavit before the receiver or register of the land-district in 212 AFFIDAVITS. which the land is situated. And it is the duty of the officer ad- ministering such oath, to file a cei-tificate thereof in the public land office of such district, and to transmit a duplicate copy to the General Land Office, either of which shall be good and sufficient evidence that such oath was administered according to law.] 105. Proof by persons of respectability who are acquainted with the claimant. We, , , do solemnly swear that [here state the per- sonal qualifications prescribed in Sec. 2259 of llev. Stat., that the person is the head of a family, or widow, or single person over the age of twenty-one years, and citizen of the United States, or has filed his intention to become such~] and is an inhabitant of the quarter-section, number , of township number , of range number , and that no other person resided upon the said land, entitled to the right of pre-emption. That the said entered upon and made settlement in person on the said land since the day of , 18 , to wit, on the day of , 18 ; and has lived in the said house, and made it his exclusive home, from the day of , 18 , until the present time. That he did not remove from his own land within the State of , to make the settlement above referred to ; and that he has since said settle- ment plowed, fenced, and cultivated about acres of said land. I, , do hereby certify that the above affidavit was taken and subscribed before me this day of , A. D. 18 . We certify that , , whose names are subscribed to the foregoing affidavit, are persons of respectability. , Register. , Receiver. 106. Affidavit for claimant of homestead. LAND OFFICE AT , ") [JJate'] 187 . j I, , of , having filed my application, No. , for an entry under Section 2289 of the Revised Statutes of the United States, do solemnly swear that [here state whether the applicant is the head of a family, or over twenty-one years of age ; whether a citizen of the United States, or has filed his declaration of intention of be- coming such ; or, if under twenty-one years of age, that he has served not less than fourteen days in the army or navy of the United States during actual war ; that said application JVo. is made for his or her exclusive benefit; and that said entry is made for AFFIDAVITS. 213 the purpose of actual settlement or cultivation, and. not directly or indirectly, for the use or benefit of any other person or persons whomsoever] and that I have not heretofore had the benefit of this act. Sworn to and subscribed this day of , before Register [or Receiver.] 107. Affidavit for soldier's homestead. LAJTD OFFICE AT , ) [Date] , 187 .f I) , of : , do solemnly swear that I am a of the age of twenty-one years, and a citizen of the United States; that I served for ninety days in Company , Regiment, United States Volunteers ; that I was mustered into the United States military service the day of , and was honorably discharged therefrom on the day of ; that I have since borne true allegiance to the Government ; and that I have made my applica- tion, No. , to enter a tract of laud, under Section 2304 of the Revised Statutes of the United States, giving homesteads to honor- ably discharged soldiers and sailors, their widows and orphan chil- dren ; that 1 have made said application in good faith ; and that I take said homestead for the purpose of actual settlement and culti- vation, and for my own exclusive use and benefit, and for the use and benefit of no other person or persons whomsoever; and that I have not heretofore acquired a title to a tract of land under the homestead laws, or voluntarily relinquished or abandoned an entry heretofore made under said laws : So help me God. Sworn to and subscribed before me, , Register of the Land Office at , this day of , 187 . , Register. 108. Affidavit for Indian Homestead under Act of March 3d, 1875. I, , of , having filed my application, No. , for an entry under the provisions of the Act of Congress of Mai-ch 3d, 1875, do solemnly swear that I am an Indian, formerly of the tribe ; that I was born in the United States ; that I have abandoned my relations with that tribe and adopted the habits and pursuits of civilized life ; [here state whether the applicant is tioenty-one years of age, or the head of a family] that I desire said land for the purpose of actual settlement and cultivation, and not directly or indirectly for the use or benefit of any person or persons whomso- ever ; and that I have not heretofore had the benefit of said act. Sworn to and subscribed before me this day of , 187 ... , Register [or Receiver]. 214 AFFIDAVITS. 109. Corroborative affidavit Indian Homestead. We, , and , do solemnly swear that we are well ac- quainted with , and know that he is an Indian, formerly of the tribe ; that he was born in the United States ; that he has abandoned his relations with that tribe, and adopted the habits and pursuits of civilized life [here state that he is twenty-one years of age, or if not, the head of a family.'] . Sworn to and subscribed before me this day of , 187 . . 110. Affidavit of applicant for a patent. NOTE. The Revised Statutes of the United States, Sec. 4892, require the applicant for a patent to make oath " that he does verily believe himself to be the original and first inventor and discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent ; that he does not know and does not be- lieve that the same was ever before known or used ; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, charge d'affaires, consxil, or commercial agent, holding commission under the Government of the United States,' or before any notary public of the foreign country in which the applicant may be." In regard to this, the Attorney-General, in September, 1861, at the request of Caleb B. Smith, Secretary of the Interior, gave his opinion that the oath must be taken personally by the applicant, and not by his agent. He says : " The oath required is eminently one of substance. It compels the applicant to assert two facts Avhich necessarily can only be within his personal knowledge, viz : that he believes that he ft the original inventor of the thing pro- posed to be patented, and that he does not know or believe that the same was ever before known or used. It is impossible that these facts can be originally known to any one but the inventor, and if they are sworn to by his agent or attorney, the evidence is nothing but hearsay." 10 Attorney-Gen. Op. 140. STATE OF , ) County of , j Si A 13, the above named petitioner, being duly sworn, [or affirmed] deposes and says : That he verily believes himself to be the original and first inventor of the improvement in seed-drills, [or whatever the invention may be] described and claimed in the foregoing speci- fication ; and he does not know and does not believe that the same was ever known or used ; and that he is a citizen of , and a resident of . A B. Sworn to and subscribed before me this day of , 18 . ? Notary Public. Forms Required in Taking Depositions. Officers taking depositions under a commission should be very careful to execute the duty carefully, or otherwise the commission will be a nullity when returned into Court. As evidence in the form of depositions is an innovation on common-law procedure, and is admitted on statutory enactments, Courts are very strict in seeing that the requirements of the statute have been duly observed. In late times, this kind of evidence is very frequently produced, and it is therefore very desirable, in a work of this character, to give abstracts of the statutory directions in the various States, with approved forms, for the guidance of notaries, and others who are empowered to take depositions. I shall therefore examine the pro- visions of each State, and give a brief and accurate synopsis of the statute under each, and the required forms. In each instance, the latest compilation or revision of the statutes will be referred to. Before executing a commission, it would be well to refer to the sixth chapter, where the law is given relating to the execution and return of the commission. ALABAMA, The testimony of witnesses resident without the State, or who are about to remove from the State, or where the witness is a female, or, from infirmity, or age, or sickness, is unable to attend Court, or resides more than a hundred miles from the place of trial, or where the witness is Governor of a State, or a State official, or of a profession or calling such as to prevent attendance at the place of trial, may be taken by interrogatories. It is the duty of the commissioner to reduce the answers of the witness to writing, or cause it to be done by the witness, or some impartial person, as near as may be in the language of the witness, having first sworn him to speak the truth, the whole truth, and nothing but the truth ; and when completed, the deposition must be read over to the witness, and by him subscribed. After the signature, the commissioner appends a certificate of the manner, tune, and place [215] 216 DEPOSITIONS. ALABAMA COXTINTJED. of taking the deposition, as in the form following, and signs it. The package may be sent by mail or private conveyance, sealed and directed to the clerk of the Court. Rev. Code, Sees. 2716-2730. 111. Form of caption and certificate JOHN DOE v. RIOUAED ROE. I, , one of the commissioners named in the annexed com- mission, caused to come before me at , in the county of , State of , C D, a witness examined by the plaintiff in the an- nexed stated cause, and having sworn him, or affirmed him, on the Holy Evangelists, the truth to speak, the whole truth and nothing but the truth, he deposes and says as follows : 1. To the first interrogatory, lie saith: [Here icrite the answer in the language of the witness.'] If there are cross or rebutting interrogatories, proceed in the same manner. And let the witness sign, after which the commis- sioner or commissioners then add the following: I, , said commissioner, hereby certify that I caused to come before me at [stating full address] the above named witness, C D; that he was duly sworn and examined ; that his evidence was taken down as near as may be in his own language, and was read over to him, and by him subscribed in my presence, and that the identity of the said witness is known to me [or has been made known to me by proof made by E F] as the same person named in the inter- rogatories and the commission annexed. As witness my hand and seal, this day of , A. D. 18 . The title and names ot parties are indorsed, and the packet Bealed, and the commissioner should write his name across the seals. ARIZONA. In the Territory, a deposition in civil cases may be taken of a party to the action, of a witness residing more than fifty miles from the place of trial, of a witness about to leave the county who may be absent at time of trial, and of a witness too infirm to attend the trial. The deposition, when completed, shall be carefully read to the witness, and corrected by him in any particular, if desired ; it shall then be subscribed by the witness, certified by the officer, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the Court in which the action is pending. Comp. Laws, p. 449. The deposition of a witness out of the Territory may be taken DEPOSITIONS. 217 ARIZONA CONTINUED. *- by a person upon whom the parties agree, or when they do not, it is directed to any judge or justice of the peace, selected by the officer granting the commission, or to a commissioner for the Ter- ritory. The commission shall authorize the commissioner to ad- minister an oath to the witness, and to take his deposition in answer to the interrogatories, and to certify the deposition to the Court in a sealed envelope, directed to the clerk or other person agreed upon. Comp. Laws, p. 450. The form given for California may be used. ARKANSAS. Depositions may be taken out of the State, before a commissioner appointed by the Governor thereof, a judge of a Court, a justice of the peace, mayor of a city, notary public, or any other person em- powered by a commission directed to him. A certificate of the official character of the officer taking a deposition out of the State is required, attested under the seal of State. Gantt's Dig. p. 499. Neither party can be present, unless both are represented, or the opposite party has had seasonable notice : p. 501. The officer before whom a deposition is taken shall decide, sum- marily, ail objections to questions ; but in matters of doubt shall permit the questions to be answered, noting the objection in the deposition. The statement must be written by the officer, or by the witness in his presence. The officer must certify the time and place of taking the deposition, that the witness was duly sworn before he gave his testimony, and that his testimony was written, and read to, and subscribed by him, in the presence of the officer. He must also state by whom it was written, and which of the parties, in person, or by agent or attorney, was present at the examination of the witness. The depositions, when completed, must be sealed up by the officer and directed to the clerk of the Court before whom the action is pending, with an indorsement thereon, showing them to be depositions, and the style of the case. They must then be either delivered or mailed to the clerk by the officer taking them, except that when taken out of the State they may be de- livered to the party taking the same, his agent or attorney, to be by him delivered ; such person so delivering them being required to take an oath that they have not been opened by him, or other person, to his knowledge. Gantt's Dig. Sees. 2578-2581. 112. Form of caption and certificate. The deposition of , taken on the day of , 18 , at the office of , in the , \gimng full address] to be read in evidence in an action between John Doe, plaintiff, and Richard Roe, defendant, pending in the Court of , County, Ar- kansas. 218 DEPOSITIONS. ARKANSAS CONTINUED. Certificate. STATE OP AKKANSAS, ") County of , I, , a notary public in and for said county, do certify that the foregoing deposition of was taken before me, and was read to and subscribed by him in my presence, at the time and place mentioned in the' caption, the said having been fir,-.t sworn by me that the evidence he should give in the action should be the truth, the whole truth, and nothing but the truth ; and his statements were reduced to writing by me in his presence, [or by him in my presence] the plaintiff alone being present at the examination [or the defendant, or both, or neither, in person or by attorney, as the case may be]. Witness my hand and seal of office, at , on this day of ic , j.u . . CALIFORNIA. Commissions for taking the depositions of witnesses out of the State are issued from the Court in which the action is pending. They can be taken by a commissioner of the State, or by any per- son agreed upon by the parties. When the parties cannot agree, the commission is issued to any judge, or justice of the peace, or commi>sioner selected by the officer issuing the commission. Code of Proced. Sec. 2024. The examination of the witness need not be in answer to written interrogatories in respect to the question in dispute, if the parties so agree. The officer is^required to certify the deposition to the Court in a sealed envelope, directed to the clerk, or other persons designated or agreed upon, and forwarded to him by mail, or other usual channel of conveyance. Code of Proced. Sec. 2026. 113. Form of caption and certificate. Deposition of , a witness sworn and examined under and by virtue of a commission issued out of the Court of , in and for the county of , in the State of California, in a certain cause therein pending between John Doe, plaintiff, and Richard Roe, defendant. , of [state residence of witness] being duly sworn to speak the truth, the whole truth, and nothing but the truth, deposes and says as follows : To the first interrogatory he says, etc. DEPOSITIONS. 219 CALIFORNIA CONTINUED. -. Certificate. STATE OP CALIFORNIA, > County of , j" I, Holland Smith, the commissioner named in the said commis- sion, do hereby certify that the witness appeared before me, and, after being duly sworn, his evidence was taken down, and read over and corrected by him, after which he subscribed the same in my presence, on the day of , 18 , at my office, 309 Montgomery Street, in the city and county of San Francisco, and that I have personal knowledge of the said witness [or proof was made of his identity]. In witness whereof, I have hereunto set my hand and official seal, the day and year aforesaid. HOLLAND SMITH, [/Seal.] Notary Public. COLORADO. Depositions out of the State may be taken on commission issued to any number of persons not exceeding three, or to any judge or justice of the peace of the county where such witness may reside. Rev. Stat, p. 311. Before examination, the witness shall be sworn, or affirmed, to testify the truth in relation to the matter in controversy so far as he or she may be interrogated, and then the answers of such wit- ness in response to the interrogatories shall be written down, and signed by such witness ; after which it shall be the duty of the person or persons taking the deposition to annex at the foot there- of a certificate subscribed by him or them, stating that it was sworn to and signed by the deponent, and the time and place where the same was taken ; and the depositions and exhibits, together with the commission, shall be inclosed, sealed up, and directed to the clerk of the Court wherein the action is pending, with the names of the parties litigant indorsed thereon. When a judge or justice of the peace acts as a commissioner, his official character must be certified to under the great seal of the proper Court of the county or city where such deposition is taken. Rev. Stat. p. 313. The form for Arkansas may be used, certifying that the witness was sworn to testify the truth in relation to the matter in contro- versy, as the statute above requires. CONNECTICUT. When any witness in a civil action lives out of the State, or more than twenty miles from the place of trial, is going to sea, or out of the State, is sixty years old, or by age or infirmity is unable to 220 DEPOSITIONS. CONNECTICUTCONTINUED. travel to Court, or is confined to jail, his deposition may be taken by a judge of any Court, justice of the peace, notary public, or commissioner of the Superior Court. Depositions may be taken in any other State or country by a notary public, commissioner ap- pointed by the Governor of this State, or any magistrate having power to administer oaths. All witnesses giving depositions shall be cautioned to speak the whole truth, and carefully examined, and shall subscribe their depositions, and make oath before the officer, who shall attest the same, and certify that the adverse party or his agent was present, (if so) or that he was notified, and shall also certify the reason of taking such deposition. He shall then 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. The official character of the magistrate taking the deposition, if a notary or Connecticut commissioner, is proved by his seal. The official character of a justice of the peace must be proved by a certificate under seal of the Court, the clerk of which is the keeper of record of the appointment of justices, unless waived by the adverse party. Any deposition written, drawn up, or dictated by the party, his attorney, or any person interested, or that shall be returned to Court unsealed, or with the seal broken, shall be rejected by the Court. Rev. Stat. of 1875, pp. 435, 436. 114. Certificate of deposition. STATE OF CONNECTICUT, ) County of , } Si The day of , A. D. 18 . Then personally appeared the above named A B, signer of the foregoing deposition, and after having been duly cautioned to speak the whole truth, and carefully examined, did subscribe the same and make oath before me that the same contains the truth, the whole truth, and nothing but the truth. The foregoing deposition is taken pursuant to the annexed notice at the request of the , to be read on the trial of an action pend- ing before the Court, within and for the county of and State of Connecticut, in which action John Doe is plaintiff, and Richard Roe defendant. The cause of taking the deposition is [stating the cause]. The adverse party was notified to be present at the taking of this dep- osition, and was present thereat [or as the case may be]. DAKOTA. Depositions may be taken, in this Territory, before a judge or clerk of either the Supreme, the District, or County Court, before a justice of the peace, notary public, mayor, or chief magistrate of any city or town corporate, or before a master, commissioner, or DEPOSITIONS. 221 DAKOTA CONTINUED. any person employed by a special commission, -but depositions taken in this Territory, to be used therein, must be taken by an officer or person whose authority is derived within the Territory. Depositions may be taken out of the Territory by a judge, justice, or chancellor of any Court of Record, a justice of the peace, notary public, mayor, chief magistrate of any city or town corporate, a commissioner appointed by the governor of this Territory to take depositions, or any person authorized by a special commission from this Territory. The depositions must be written in the presence of the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness. The dep- osition so taken shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the Court where the action or proceeding is pending, or to the justice, mayor, or other judicial officer, arbitrator, or referees, if the action or proceeding is pending before them. The officer, if he has a seal, may certify himself to his official character ; but if he have none, it must be certified to by the secretary or other officer of State, or par'ol proof must be offered as to his official character. The officer shall annex to the deposition a certificate showing that the witness was first sworn to testify the truth, the whole truth, and nothing but the truth ; that the deposition was reduced to writing by some person [naming him] ; that the deposition was written and subscribed in the presence of the officer certifying thereto ; that the deposition was taken at the time and place specified in the notice. Laws of 1872-3, pp. 16-17. DELAWARE. If it appear by affidavit that there is a material witness residing out of the county, whose attendance it is not practicable to procure, the justice may make a rule that his deposition shall be taken by a commissioner named by him. ****** The justice shall forward a copy of the rule and the questions to the commissioner, with a copy of this section. The deposition must be taken in writing, signed by the witness, certified by the commis- sioner, and sent, sealed up, to the justice. The witness must first be sworn or affirmed by the commissioner, to answer the questions truly ; neither party shall be present at the taking of the deposi- tion, and no question shall be put but those sent by the justice. Rev. Code of 1874, p. 6^0. 115. Form, of caption and certificate. Deposition of witness sworn [or affirmed] and examined the day of , in the year 18 , at , county of , and State of , under and by virtue of a commission issued out of 222 DEPOSITIONS. DELAWARE CONTINUED. the Court, in and for the county of -, State of Delaware, in a certain cause therein depending between John Doe, plaintiff, and Richard Roe, defendant. A B, a witness, being duly sworn and examined on the part of the plaintiff, doth depose and say as follows : To the first interrogatory he saith : \And so on.] When the deposition is finished, it should be subscribed by the witness, and the commissioner should write his name on each sepa- rate sheet and certify the deposition, as follows : Certificate. Examination of A B, a witness on the part of the plaintiff [or defendant] in the above stated cause, who is personally known to me, [or proof having been made before me of the personal identity of said witness] and who was, between the hours of 8 o'clock A. M. and 4 o'clock p. M., on the day of , 18 , at my of- fice , [giving full address] called before me, and who, after being sworn to speak the truth, the whole truth, and nothing but the truth, did depose and testify to the above deposition, which was taken down and reduced to writing by me, and signed by said wit- ness in my presence. All of which I certify under my hand and official seal, this day of , 18 . . If there be any instrument or document produced and proved by the witness, it should be attached, and all carefully sealed and di- rected to the clerk of the Court, with the title of the cause indorsed thereon. FLORIDA. Where a witness resides out of the State, or out of any county in which his testimony jnay be required in any cause, or who is bound on a voyage to sea*, or is about to go out of the State and remain until after the trial, or is very aged or infirm, a commis- sion may be had to take his deposition, addressed to not less than two commissioners. The commission shall be annexed to the in- terrogatories, and be tested from the Court issuing the same. In issuing the commissions, blanks may be left for the names of the commissioners, but the names of the witnesses to be examined must be distinctly specified in the interrogatories and commission. The return may be made by mail, or by a party to the cause, or any other person who shall make oath " that he received the said packet from one of the commissioners ; that it had been in his pos- session ever since, and has not been opened or altered. If returned by mail, the postmaster at the office to which the packet is con- veyed must indorse " received by due course of mail." The commissioners, having sealed up the commission and deposi- tion, shall write their names across the seals of the envelope, -and DEPOSITIONS. 223 FLORIDA CONTINUED. give the packet such direction as will enable the Court to know that it was intended for the Court, and applicable to some particular cause therein. Bush's Dior. p. 314. O * 116. Form of caption and certificate. Deposition of witnesses produced, sworn, and examined on the day of , A. D. 18 , at the office of , Commissioner, [giving full address] by virtue of the the annexed commission, is- sued out of the clerk's office of the Court of the Circuit of Florida, for the county of , to us directed, for the examina- tion of said witnesses in a cause therein depending between John Doe, plaintiff, and Richard Roe, defendant, on the part of the plaintiff. , of the , [giving residence of witness] being duly sworn, deposeth and answereth as follows : 1. To the first interrogatory the witness saith : [And so on.~\ The witness must then sign the deposition, and the commission- ers attest the same, by the following jurat : Sworn to and subscribed before us the day of , 18 . Commissioners. If there are cross-interrogatories, they should proceed with them, and insert the answers immediately following the answers of the direct interrogatories in the form following : The said witness answers and deposes to the cross-interrogatories as follows : 1. To the first cross-interrogatory he answers and says : And the answers to the cross-interrogatories should be signed by the witness, and attested by the commissioners, in the same man- ner as directed for the direct interrogatories. GEORGIA. Commissions shall issue generally in blank, allowing the party to select his commissioners ; but in any case, the opposite party shall have the privilege of naming two competent commissioners, whose names shall be inserted in the commission, and one of whom shall act in the execution thereof, unless a good and sufficient reason be shown for his failure. No person is competent to act as commis- sioner who would be incompetent as a juror on account of rela- tionship, or as a witness on account of interest; nor will the attor- ney of the party, or his clerk, or an agent paid to discharge this duty, be a competent commissioner. Reasonable compensation may be paid to the commissioners, but not more than two dollars per day shall be taxed as costs against a party. No party, or his 224 DEPOSITIONS. GEORGIA CONTINUED. counsel, or his agent, or other person on his behalf, should be pres- ent at the execution of the commission, and everything attending the 'execution should show a perfect impartiality and freedom from bias. Code of 1873, Sees. 3882-4. Witnesses may write out their own answers in the presence of the commissioners, and by their consent, but in no other way shall they prepare the same ; and if the witnesses answer from written memoranda, such memoranda shall be sent with the commission, and the fact certified by the commissioners. After execution, the interrogatories, answers, and commissions should be inclosed in an envelope and sealed, with the names of the commissioners written across the seal, and directed to the officer of the Court whence the commission issued. The package can be sent by mail, or intrusted to the party, or some private hand. In the former case, the postmaster receiving it from the commissioner must certify to its reception by due course of mail. In the latter case, the person receiving and delivering it in Court must make affidavit of the fact, and of its freedom from alteration. The Code, Sec. 3891, provides the following form : 117. Form of caption. STATE OF GEOKGIA, ") County of , j S! By virtue of an agreement between the parties or counsel, in the case of v. , pending in the Court of County, [or district, as the case may be] the undersigned, acting as com- missioners, have caused A B, a witness in said cause, to come before us, who, being duly sworn true answers to make to the annexed interrogatories, deposes and answers as follows : 1. To the first interrogatory he answers : [And so on.] To the first cross-interrogatory he answers, etc. Answered, subscribed,*and sworn to before us, this day of , 18 . E F, Commissioner. [ea.] G H, Commissioner. [ $ea?.J In case the commission is under appointment of Court, it may begin : " By virtue of a commission from the honorable the Court of County, to us directed, we have caused A B," etc. IDAHO. In this Territory, the deposition of a witness may be taken when the witness is a party to or benefited by the action, when he resides out of the county, when he is about to leave the county to be ab- sent at the time of trial, when he is, too infirm to attend, and when the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required. DEPOSITIONS. 225 IDAHO CONTINUED. The deposition, when completed, shall be carefully read to the witness, and corrected by him in any particular if desired. It shall be subscribed by the witness, certified by the officer, and inclosed in an envelope or wrapper, sealed, and directed to the clerk -of the Court, or to such person as the parties in writing may agree upon. Out of the Territory, within the United States, a deposition of a witness may be taken by a commission directed to a person agreed upon by the parties, or, if they do not agree to any judge or justice of the peace, a commissioner selected by the officer issuing the commission. If issued to any country out of the United States, it may be directed to a minister, einbassador, consul, vice-consul, or consul-agent of the United States in such country, or to any person agreed upon by the parties. The commission shall authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the interrogatories; or when the examination is to be made without interrogatories, in respect to the question in dispute, [same as in California] and to certify the deposition to the Court in a sealed envelope, directed to the clerk, or other person designated or agreed upon, and forwarded to him by mail or other usual channel of con- veyance. Rev. Laws, (1876) pp. 227, 228. For form of certificate, use that given for California. ILLINOIS. Resident witnesses may be examined and their deposition taken when they reside out of the county, when about to depart from the State, when they are in custody on legal process, or are too infirm to attend Court. Their deposition may be taken before a justice of the peace, clerk of a Court, or notary public. The testimony of a witness residing in the State, more than a hundred miles from the place of trial, or residing out of the State, may be taken by depo- sition on a commission directed to any competent or disinterested person, as commissioner, or to any judge, master in chancery, no- tary public, or justice of the peace of the county or city in which such witness may reside, or in case to take the testimony of a per- son engaged in the United States army or navy, " to any commis- sioned officer in the military or naval service of this State or the United States." Previous to examination, the witness shall be sworn to testify the truth in relation to the matter in controversy, so far as he or she may be interrogated. The witness, after giving the deposition, shall sign it, the officer shall annex to the foot thereof a certificate subscribed by himself, stating that it was sworn to and signed by the deponent, at the time and place when and where the same was taken. All the papers shall be inclosed in an envelope, sealed up, and directed to the clerk of the Court in which the action shall be NOTARIES 15. 226 DEPOSITIONS. ILLINOIS CONTINUED. pending, with the names of the parties litigant indorsed thereon. When any deposition shall be taken by any judge, master in chancery, notary public, or justice of the peace out of this State, or other officer, the 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. The party, his attorney, or any person who shall in anywise be interested in the eveut'of the suit, shall not be permitted to dictate, write, or draw up any deposition which may at any time be taken, or be present during the taking of any deposition by written inter- rogatories ; 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 rejected by the Court as in- formal and insufficient. Rev. Stat. of 1874, pp. 492-494. 118. Form of caption and certificate. The deposition of , of the county of and State of -, a witness of lawful age, produced, sworn, and examined on his cor- poral oath, on the day of , A. D. 18 , at the office [or house] of , in the town [or city] of , in the county of and State of aforesaid, by me, a commissioner [or " by us " if more than one commissioner, inserting the names of all the commis- sioners] duly appointed by a dedimus potestatem, or commission issued out of the clerk's office of the Superior Court of Cook County, [or other Court, as the case may be] in the State of Illi- nois, bearing test in the name of , Esq., clerk of said Court, with the seal of said Court affixed thereto, and to me [or us] di- rected as such commissioner for the examination of the said , a witness in a certain suit and matter in controversy now pending and undetermined in tne said Superior Court of Cook County, wherein is plaintiff and defendant, in behalf of the said, as well upon the cross-interrogatories of the , as on the inter- rogatories of the , which were attached to and inclosed with the said commission, and upon none others. The said , being first duly sworn by rue [or by , one of the said commissioners] as a witness in the said cause, previous to the commencement of his examination, to testify the truth, as well on the part of the plaint- iff as the defendant, in relation to the matters in controversy be- tween the said, plaintiff and defendant, so far as he should be inter- rogated, testified and deposed as follows : " Interrogatory first." [Here insert it.~\ " Answer to first interrogatory." [Here insert it.~\ After the deposition is taken, the interrogatories and answei-s should be read over to the witness, and if he assents to the truth of the answers, he will then sign his name, and swear to the truth of the DEPOSITIONS. 227 ILLINOIS CONTINUED. deposition. This oath is in addition to the preliminary oath which is administered previous to the commencement of his examination. Certificate. I, , of the county of and State of , a commissioner duly appointed to take the deposition of said , a witness whose name is subscribed to the foregoing deposition, do hereby certify that previous to the commencement of the examination of the said as a witness in the suit between the said , plaintiff, and the said , defendant, he was duly sworn by me as such commis- sioner, to testify the truth in relation to the matters in controversy between the said , plaintiff, and the said , defendant, so far as he should be interrogated concerning the same ; that the said deposition was taken at my office [or at the house of ] in the city of , in the county of and State of , on the day of , A. D. 18 , and that after said deposition was taken by me [or us] as aforesaid, the interrogatories and answers thereto, as written down, were read over to the said witness, and that thereupon the same was signed and sworn to by the said deponent , before me, [or us] the oath being administered by , one of said commissioners, [where ther"e are more than one] as such commissioner at the place and on the day and year last aforesaid. , Commissioner. INDIANA. Depositions of witnesses, taken within or without the State, may be taken before any judge, justice of the peace, notary public, mayor or recorder of a city, clerk of a Court of Record, or com- missioner appointed by the Court ; but shall not be taken before any person being of kin to either party, or interested in the action. The officer taking the deposition shall have power to summon and compel the attendance of witnesses ; and this power can be exer- cised by officers appointed to take depositions in the State under commission from another State. 2 G. & H. Stat. p. 176. The deponent shall be first sworn by the officer to testify the truth, the whole truth, and nothing but the truth relating to the cause. The deposition shall be written down by the officer, or by the deponent, or by some disinterested person, in the presence and under the direction of the officer, and after the same has been carefully read by the deponent, it shall be subscribed by him. The officer shall annex a certificate, stating the following facts : 1 . That the deponent was sworn according to law. 2. By whom the depo- sition was written, and if written by the deponent, or some disin- terested person, that it was written in the pi-esence and under the direction of the officer. 3. "Whether or not the adverse party at- tended. 4. The time and place of taking the deposition, and the 228 DEPOSITIONS. INDIANA CONTINUED. hours between which the same was taken, and the officer shall sign and attest the certificate, and seal the same, if he have a seal of office. He shall seal up in an envelope, and direct the deposition to the clerk of the Court, indorsing on the envelope the names of the parties and witnesses whose depositions are inclosed. 2 Gav- in & Hord, pp. 176, 177. It has been held in this State that the omission to state whether or not the adverse party attended is fatal to the deposition. Mad- ison etc. R. R. Co. v. Whitesel, 11 Ind. 55. 119. Form of caption and certificate. Deposition of , witness, produced and sworn before me, a of , at , in county, State of , on the day of , 18 , pursuant to the inclosed notice [and commis- sion, if there be one]. This [or these] depositions taken on the part of the , in a certain action now pending in the Court of County, in the State of Indiana, wherein John Doe is plaintiff and Richard Roe is defendant. The said , [naming first witness] being duly sworn to testify the truth relating to said cause, deposes as follows : Examined by . Question 1. Answer. [And so on, the cross-examination in the same manner.] Certificate. STATE OF INDIANA,") County of , ) I, , a , within and for said county, hereby certify that the above [here give name of witness or witnesses] was by me first duly sworn according to law, to testify the truth, the whole truth, and nothing but the truth relating to said cause ; that his deposition was reduced to writing by me [or by said deponent, or by A B, a dis- interested person, in my presence and under my direction] ; that said [adverse party] attended in person, [or by C D, his or their attorney, or was not present, as the case may be] and said deposi- tion was taken at , in , county of , State of , on the day of , 18 , between the hours of A. M. and p. M., of said day. In testimony whereof, I have hereunto set my hand and seal, this day of , 18 . If the officer have no seal, and his name is not mentioned in the commission, he must procure the authentication of his certificate by the certificate and seal of the clerk or prothonotary of any Court of Record of the county in which the officer exercises the duties of his office. DEPOSITIONS. 229 IOWA. If a witness resides out of the county wherein the cause is pend- ing, whether within or without the State, his deposition may be taken before one or more commissioners on written interrogatories. The commissioners selected may be the clerk, or any judge of a Court of Record, or a commissioner of the State, a notary public, or any consul or consular agent of the United States. The com- mission must have inserted in it the name of office of such officer, or his individual name and official style, and the name of the Court of which the commissioner is clerk or judge, and the name of the State and county; or if without the United States and Canada, the name of the State and town or city in which such commissioner, notary, or consul, or consular agent resides. None of these officers are authorized to take the deposition except with- in the limits of their official jurisdiction. The officer must cause the interrogatories propounded, whether written or oral, to be writ- ten out, and the answers thereto to be inserted immediately under- neath the respective questions. The answers must be in the language, as near as practicable, of the witness, if either party re- quires it. The person taking the deposition shall certify that it was subscribed and sworn to by the deponent at the time and place therein mentioned. The whole, including the commission and in- terrogatories, when any such were issued, must be sealed up and returned to the clerk of the proper county by mail, unless a differ- ent mode be agreed upon between the parties. Where a deposition is taken upon interrogatories, neither party, nor his agent, nor his attorney, shall be present at the examination of a witness, unless both parties are present or represented by an agent or attorney, and the certificate shall state such fact if the party or his agent is present. When returned by mail, the officer shall state, on the outside of the envelope, the title of the cause in which the deposition is to be used. Where depositions are directed to be taken before a judge or justice of the peace, merely by his name of office, the return must contain an authentication by the clerk of the proper Court, under his seal of office, verifying the fact, that the person is really such officer. The deposition must show that the witness is a non-resident of the county, or such other fact as renders the taking of the deposition .legal. Code of 1873, pp. 574-6. 120. Form of caption and certificate. Depositions of witnesses produced, sworn, and examined at , before me, [giving name and style of officer] in a certain case now pending in the Court of County, State of Iowa, between John Doe, plaintiff, and Richard Roe, defendant. On'the part of the plaintiff, [or the defendant] A B, of lawful age, being pro- duced, sworn, and examined, deposeth and saith : \_Here insert each 230 DEPOSITIONS. IOWA CONTINUED. interrogatory as it occurs, and the answers thereto immediately following.] A separate caption is written down for each witness, as follows : Deposition of C D. The said C D, being first duly sworn and examined on the part of the plaintiff, [or defendant] doth depose and say, in answer to the several interrogatories, as follows, to wit : Interrogatory first : [insert the interrogatory ; then the answer.] At the foot of each deposition the officer will certify as follows : I, , do hereby certify that A B, the deponent, whose place of residence is [here insert it~\ was by me sworn to testify the whole truth of his [or her] knowledge touching the matter in controversy in the case aforesaid ; that deponent was examined, and his exami- nation reduced to writing by [give name of person"] who is neither of the parties, nor attorney of either, nor in anywise interested in the suit ; and after being carefully by me read over to the said de- ponent the same was sworn to and subscribed by the said de- ponent in my presence, on the day of , A. D. 18 , be- tween the hours of A. M. and p. M. . of the said day, at . Given and certified under my hand and official seal, the day of , A. D. 18 . , Commissioner. When all the witnesses are sworn and examined, the officer will attach to the deposition all papers and exhibits, the commission and notice, with the following certificate indorsed thereon, or attached thereto : STATE OP IOWA, ") County of , j Si I, , a , within and for the county of , do certify that in pursuance of the within [or annexed] commission and notice, came before me at my office, [stating full address] and , who were there by me sworn and examined, and such examination reduced to writing by [insert name of person] who is neither of the pai'ties, their attorney nor in anywise interested in the event of the suit \ and after being by me read over to each of the deponents, the same was is worn to and subscribed to by said witnesses respect- ively in my presence, and their depositions are now herewith re- turned. [ Then state if either or both parties were present at the examination personally, or by agent or attorney] Given under my hand and official seal, hereto Affixed, at , this day of , A. D. 18 . , Commissioner. KANSAS. The deposition -of a witness may be taken in the State before a judge or clerk of a Court of Record, before a county clerk, justice of the peace, notary public, mayor, or chief magistrate of any city, or town corporate, or before a master commissioner, or person em- DEPOSITIONS. 231 KANSAS COXTIHTJED. powered by a special commission. Out of the State, a deposition may be taken by a judge, justice, or chancellor of any Court of Record, a justice of the peace, notary public, mayor or chief mag- istrate of any city or town corporate, a commissioner appointed by the governor to take depositions, or any person authorized by a special commission from the State. The deposition shall be writ- ten in the presence of the officer, either by the officer, the witness, or some disinterested person, and subscribed by the witness. When finished, it shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and trans- mitted to the clerk of the Court. The officer shall annex thereto a certificate, showing that the wit- ness was first sworn to testify the truth, the whole truth, and noth- ing but the truth ; that the deposition was reduced by some proper person, naming him; that it was written and subscribed in the presence of the officer; and that it was taken at the time and place specified in the notice. Depositions taken by officers here mentioned, having a seal of office, whether resident within or with- out the State, shall be admitted in evidence, upon the certificate and signature of such officer, or his official seal, and no other or further authentication is required. If the officer have no seal, the deposition, if taken out of the State, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof, adduced in Court, or by the official certificate and seal of any secretary or other officer of the Territory keeping the great seal thereof, or of the clerk or prothonotary of any Court having a seal, attesting that such judicial or other officer was, at the time of taking the same, duly qualified, and acting as such officer. But, if the deposition be taken within the State by an officer having no seal, or within or without the State under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commissioner. Gen. Stat. p. 696. If there are adjournments, they should be noted by the officer from day to day, and legal reasons given therefor. 19.1. Form of caption and certificate. Depositions of sundry witnesses taken before me , within and for the county of , in the State of , on the day of , in the year 18 , between the hours of A. M. and P. M., at in said county, pursuant to the annexed notice, [or agreement, as the case may be] to be read in evidence on behalf of the plaintiff, [or defendant] in the said action. A B, of lawful age, being by me first duly examined, cautioned, and sworn to testify the truth, the whole truth, and nothing but the truth, deposeth and saith : 232 DEPOSITIONS. KANSAS CONTINUED. Certificate. I, , a in the county of , do hereby certify that A B and C D, who have testified, were by me first severally sworn to testify the truth, the whole truth, and nothing but the truth, and that the depositions by them respectively subscribed, as above set forth, were reduced to writing by myself, [or by another person who is not interested, naming him, and stating it done in the offi- cer's presence] in presence of the witnesses respectively, and were respectively subscribed by the said witness [or witnesses] in my presence, and were taken at the tune and place in the annexed notice [or agreement] specified; that I am not counsel, attorney, or relative of either party, or otherwise interested in the event of this suit; [if there had been adjournments, addf\ and commenced at the time in the notice specified, and continued by adjournments from day to day as above stated. , Commissioner. KENTUCKY. Depositions may be taken out of the State before a commissioner, appointed by the governor thereof, a judge of a Court, a justice of the peace, mayor of a city, notary public, or any person empow- ered by a commission directed to him by consent of the parties, or by order of the Court. Civil Prac. Code, Sec. G28. In the State, depositions are taken before examiners appointed for that purpose. But where an examiner cannot be obtained in the county, or where the witness is unable, from age, infirmity, or imprisonment, to attend at the examiner's office, and the examiner refuses to go to him, or where all the examiners of the county are interested in the county^the depositions may be taken before a judge of a Court, a justice'of the peace, a notary public, or a clerk of a Court. Where parties consent in writing, justices of the peace may take depositions. Sees. 624, G25. Where a deposition is taken by intei'rogatories, neither party, nor his agent nor attorney, shall be present at the examination of the wit- nesses, unless both parties are pi'esent or represented, or unless the party has been notified to attend, the other being present. The certificate shall state the time and place of taking the deposition, that the witness was duly swom before he gave his testimony, and that his testimony was written, read to, and subscribed by him in the presence of the officer ; and also state by whom it was written, and which of the parties, in person, or by agent or attorney, was present at the examination of the witness. The deposition may be mailed, or delivered to the party, or some one for him, who will make oath that he did not open the deposition, or any person for him. Sec. 646. DEPOSITIONS. 233 KENTUCK r CONTORTED. 122. Form of caption and certificate. The deposition of , taken on the day of , 18 , at , county of , State of , to be read as evidence in an action between John Doe, plaintiff, and Richard Roe, defendant, now pending in the Court for County, State of Kentucky. Certificate. I, a for the county of , do certify that the foregoing deposition of was taken before me and was read to and sub- scribed by him in my presence, at the time and place and in the action mentioned in the caption, the said having been first sworn by me that the evidence he should give in the action should be the truth, the whole truth, and nothing but the truth, and his statements reduced to writing by me in his presence, [or by him in my presence] the plaintiff alone being present at the examination [or the defendant, or neither party, in person or by attorney, being present at the examination, according to the facts]. Given under my hand and seal this day of , 18 . , Commissioner. LOUISIANA. The commission may be executed by any one of the commis- sioners. If they are all absent, or otherwise incapable of executing it, it may be executed by any judge or justice or the peace. If executed by any other than one of the commissioners, expressly named, it will be necessary to obtain the certificate of the governor of the State that the judge or justice of the peace officiating was such on the day or days when the commission was executed, and that his signature to the commission was genuine. The commis- sioner ought, previous to writing the answer of the witness, to swear him to declare the truth on the questions put to him in the cause. The commissioner should draw his proces verbal, or certifi- cate of the taking of the depositions, and annex the same to the commission and interrogatories. 123. Form of caption and certificate. STATE OF LOUISIANA, ) County of , \ Be it remembered, that I, , do hereby, that acting by virtue of and in obedience to the inclosed and annexed commission is- sued out of the Honorable District Court for the Judicial Dis- trict of Louisiana, in a case entitled John Doe v. Richard Roe, I have cited A B, of said county, a witness on behalf of the plaintiff [or 234 DEPOSITIONS. LOUISIANA CONTINUED. defendant] in the above entitled cause, to appear before me in- the said [city or county] on this day of , 18 , and being then and there duly sworn, upon the Bible, to declare the truth on the questions and cross-questions put to him in the cause, answered as follows to the questions and cross-interrogatories annexed to said commission, to wit : To interrogatory first, witness answered : [And so onJ] Each dep- osition should be subscribed by the person making it, and there should be annexed at the foot of it the following jurat : Sworn to and subscribed on the day of , 18 , at the place first aforesaid. , Commissioner. Certificate. STATE OF LOUISIANA, > County of , j I, , do hereby certify that the foregoing depositions were reduced to writing as aforesaid by me, and that the same were signed as above by the witnesses in my presence. In witness whereof, I have hereunto set my hand and affixed my official seal, the day of , 18 . , Commissioner. The commission, interrogatories, cross-interrogatories, answers, and documents therein referred to, and the certificate of the com- missioner, should all be wafered or sealed together, the whole in- closed in an envelope and sealed, the commissioner's name written over the seal, the expense of taking the same marked inside, the title of the suit marked outside the envelope, and the whole ad- dressed to " The Clerk of Judicial District, Louisiana." % MAINE. In any cause depending in the State, depositions may be taken out of the State as follows : By commission issuing out of the Court wherein the action is pending, and addressed to any judge of a Court of Record, notary public, or person named therein. Attorneys, or parties interested in the suit, should not be present at the taking of the depositions. The witness must be sworn prior to his examination, and subse- quent interrogatories should not be put until the former ones have been answered. 124. Form of caption and certificate. The deposition of , to be used in evidence in a certain cause now pending in the Court of the State of Maine, within and for the county of , in the State of Maine, wherein John Doe DEPOSITIONS. 235 MAINE CONTINUED. is plaintiff, and Richard Roe is defendant. , of the [giving address of witness] being first duly sworn, deposes and says as follows : Certificate. STATE OF MAINE, 7 County of , j SS< On this day of A. D. 18 , the within named depo- nent personally appeared before me at [giving official residence] in said county, was first sworn by me, according to law, to testify the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which his within deposition was taken, and then, being examined on interrogatories, according to law, gave, on oath, the within deposition, which was written by , a disinterested person, in the presence and under the direction of myself ; and after the said deposition had been carefully read by me to said deponent, it was then subscribed by him in my presence. Said deposition was taken at the request of the plaintiff [or defendant] ; the ad- verse party was notified to attend, and did [or did not] attend its taking. The cause in which it is to be used is an action of tres- pass in which John Doe is plaintiff and Richard Roe defendant, which is now pending in the Court, within and for the county of , in said State, and is to be tried in said Court at its term to be holden at , within and for said county of , on the day of , A. D. 18 . The cause of taking said deposition is that the deponent does not reside in the State of Maine, but is a resident of the . Witness my hand and seal at said , the day and year first named. , Commissioner. MARYLAND. When witnesses reside out of the State a commission will issue, provided it be shown, by affidavit or otherwise, that such commission is proper and necessary. The commissioners are named by the Court, and must be sworn before some judge or justice " truly, faithfully, and without partiality to execute the duties of commission- er according to the best of their judgment." The official character of the person administering the oath should be certified by a clerk of a Court of Record. Two commissioners are named in the com- mission ; one or both may act. It is competent for the parties, their agents and attorneys, to be present at the execution of any commission. One of the commissioners will administer to the wit- ness whom they are about to examine on oath or affirmation, in the established form of the place, " to make true answers to all such questions as shall be asked upon the interrogatories annexed to the commission, without favor or affection to either party, and therein to speak the truth, the whole truth, and nothing but the truth." 236 DEPOSITIONS. MARYLAND CONTINUED. The witness must subscribe his examination with his name, and the commissioners must subscribe their names opposite to his signature, for the purpose of identifying it, and if in the course of the exam- ination the witness shall produce or refer to any paper, exhibit, or document, the same must be marked by some letter or figure, and further identified by the commissioners in the following manner : " This is the paper, exhibit, or document referred to by , in his examination, as the paper marked ' A,' " etc., to which they will sign their names. The commissioners must bind up the depositions and exhibits together with the commission, tape passing through and connecting the whole, and then make the following indorse- ment on the commission : " The execution of this commission ap- pears in a certain schedule hereunto annexed," to which they also cubscribe their names and affix their seals. Thus prepared and executed, they will inclose the same in an envelope, sealed with their seals, their names written across or by the side of the seal, and the whole addressed to the clerk of the Court. 125. Form of caption-and certificate. At the execution of the annexed commission, issued out of the Court for county, and to us directed, and empowering us to examine evidences in the cause depending in said Court, be- tween John Doe, plaintiff, and Richard Roe, defendant, we, and , commissioners therein named, having met on the - day of , A. D. 18 , at o'clock, at [place of meeting] and taken before , a commissioner for Maryland in , [or other officer] the oath annexed to the said commission, did proceed then and there to take the following depositions, to wit : , a witness of lawful age, produced on the part of the plaintiff, [or defendant] being duly sworn and examined on the interroga- tories herewith returned, deposes and says : To the first interrogatory : Answer : Certificate. There being no other witnesses to be examined, the commission- ers closed the said commission, and herewith return the same, un- der their hands and seals, this day of , A. D. 18 . , Commissioner. , Commissioner. MASSACHUSETTS. In the State a deposition may be taken when the witness lives more than thirty miles from the place of trial, or is about to go out of the State, not to be present at the trial, or when the witness DEPOSITIONS. 237 MASSACHUSETTS CONTIXUED. is sick, infirm, or aged. The deposition may be taken on notice before a justice of the peace, who puts such interrogatories as he shall think fit. The witness may write his deposition, or some dis- interested person, by direction and in the presence of the justice. He shall be sworn or affirmed to testify the truth, the whole truth, and nothing but the truth relating to the cause. Gen. Stat. of 1860, p. 674. The deposition of a witness without the State may be taken un- der a commission issued to one or more competent persons, or it may be taken before a commissioner appointed by the governor for that purpose, in any part of the United States or in any foreign country. Every deposition so taken must be upon written inter- rogatories. Neither party shall be permitted to attend at the taking of the deposition, either by attorney or agent. The deposition must be taken in a place separate and apart from all other persons, and no person permitted to be present during such examination except the deponent and the commissioner, and such disinterested person as the commissioner may think fit to appoint as clerk. The commissioner is requested, in making his return, to write upon the envelope the names of the parties to the suit and the title of the Court. 126. Form of caption and return. STATE OF MASSACHUSETTS,) County of . ) Pursuant to the foregoing commission, I caused the said to come before me on the day of , A. D. 18 , and having sworn the said to testify the truth, the whole truth, and noth- ing but the truth relating to the cause for which the deposition is taken, I examined the said , and reduced his testimony to writ- ing. Neither of said parties was present by himself, or by agent or attorney ; nor did either of them communicate in any manner with the deponent whilst giving his deposition ; and I took said deposition separate and apart from all other persons, no person be- ing present except myself ; and in taking the depositions I put the interrogatories and cross-interrogatories to the deponent as directed in the foregoing commission, and in all respects fully and exactly complied with the directions in said commission in taking the same. And after the said deposition was taken I carefully read the same to the said , and he subscribed it in my presence. , Commissioner. MICHIGAN. The persons to whom a commission shall be directed, or any of them, shall execute it as follows : 238 DEPOSITIONS. MICHIGAN CONTINUED. 1. They, or one of them, shall publicly administer an oath to the witness, that the answers given by him to the interrogatories proposed shall be the truth, the whole truth, and nothing but the truth. 2. They shall cause the examination of each witness to be re- duced to writing, and to be subscribed by him, and certified by such of the commissioners as are present at the taking of the same. 3. Exhibits produced and proved before them shall be annexed and subscribed by the witness, and also certified by the oificers. 4. The commissioners shall subscribe their names to each sheet of the depositions. They shall annex all the depositions and exhib- its to the commission upon which their return shall be indorsed ; and they shall close them up under their seals, and address the same, when so closed, to the clerk of the Court from which the commission issued. 5. If there shall be a direction to return by mail, they shall im- mediately deposit the packet so directed in the nearest post-office. 6. If there be a direction to return by an agent of the party, the packet so directed shall be delivered to such agent. This agent shall make affidavit that he received the same from the hands of the commissioners, and that it has not been opened or altered since he received it. Comp. Laws, p. 1695. The oath shall be adminis- tered in the following form : " You do solemnly swear, in the presence of Almighty God, that the answers given by you to the interrogatories proposed to you shall be the truth, the whole truth, and nothing but the truth : So help you God." 127. Form of caption and certificate. Deposition of , of the , aged years, a witness pro- duced, sworn, and examined on the day of , A. D. 18 , at my office, [giving full address of the commissioner] by virtue of a commission issued out of the Court, for the county of , in the State of Michigan, on the day of , A. D. 18 , and directed to me, commissioner for the examination of - , a witness in a cause depending and at issue in said Court, between John Doe, plaintiff, and Richard Roe, defendant, on the part of said plaintiff [or defendant]. Having read said commission and the instructions thereto annexed, and having administered an oath to said witness, that the answers given by him to the interrogatories proposed to him should be the truth, the whole truth, and nothing but the truth, I proceeded to the examination as follows, namely : , of the [giving fall address of witness] aged years and upwards, a witness produced, sworn, and examined on the part of the plaintiff [or defendant] in said cause, deposeth as follows, namely : 1. To the first interrogatory, he saith : DEPOSITIONS. 239 MICHIGAN CONTINUED. Certificate. STATE OF MICHIGAN, ") County of . ) I, the undersigned commissioner, hereby certify that on this day of , A. D. 18 , then , of , personally appeared before me at my office ,and, after having taken the oath prescribed in the instructions annexed to the commission mentioned in the caption to the above deposition, which oath was administered by me, and taken by said witness with uplifted hands, [or by whatever mode] declared that the foregoing deposition, by him subscribed, contains the truth, the whole truth, and nothing but the truth ; said witness residing without the State of Michigan. The deposition was reduced to writing by me, the said commissioner [or by a dis- interested person in my presence, or by the witness himself]. In witness whereof, I have hereto set my hand and affixed my official seal, the day and year aforesaid. , Commissioner. MINNESOTA. The deposition of any witness without the State may be taken under a commission issued to any competent person in any State or country, and the deposition may be used in the same manner, and subject to the same conditions and objections, as if it had been taken in the State. The deponent shall be sworn and examined, and his deposition shall be written by the officer or deponent, or some disinterested person, carefully read to and subscribed by the witness, and the commissioner shall annex thereto a certificate, under his hand, of the time and manner of taking it, and he shall insert in the certificate the names of the persons at whose request it. was taken. 123. Form of caption and return. I, , commissioner named in the within and above written commission, do certify that the said commission was executed and the testimony of was taken before me at , on the day of , A. D. 18 , at o'clock in the forenoon, and was taken at the request of , and reduced to writing by myself [or as the case may be]. That the said testimony was taken by and pursuant to the authority and requirements of said commission, [or stipula- tion, as the case may be] upon the interrogatories hereto annexed and herewith returned. That said witness before examination was sworn to testify the truth, the whole truth, and nothing but the truth relative to the cause specified in said commission, and that the testimony of said witness was carefully read to [or by] said witness, by me, and then by him subscribed in my presence. , Commissioner. 240 DEPOSITIONS. MISSISSIPPI. When witnesses are non-residents, a commission to take their dep- osition may be directed to one or to several commissioners 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, com- missioner appointed by the governor of the State, or other person authorized to administer oaths by the law of the place where the deposition is taken, and the certificate o any such officer shall be prima facie evidence of his official character, and his authority to administer oaths. The witnesses shall be sworn by the commis- sioner to testify the whole truth and nothing but the truth, and the commissioners, or one of them, shall carefully and impartially ex- amine the witness, on the interrogatories and cross-interrogatories annexed to the commission, and shall cause the testimony to be written down by himself, or by the witness or some disinterestei person in his presence, and subscribed by the witness, and the testi- mony so taken, with the commission and interrogatories, and every exhibit and voucher relating thereto, and also a certificate by the commissioner of all his proceedings therein, shall be sealed up and directed to the clerk of the Court where the action is pending. The commissioner shall indorse the style of the cause and the word " deposition " on the envelope. Rev. Code of 1871, Sec. 794. 129. Form of caption and certificate. Be it remembered, that on this day of , A. D. 18 , by virtue and in pursuance of a commission to me directed, from the Court for the Judicial District of the State of Missis- sippi, to take the deposition of , a witness for the complainant in a certain cause therein pending, wherein John Doe is complain- ant and Richard Roe is defendant, on the interrogatories and cross-interrogatories annexed to and accompanying said commission, I caused the said , a"*person of sound mind, and upwards of twenty-one years of age, to come before me at my office in . Said , being by me first duly cautioned to speak the truth, the whole truth, and nothing but the truth, in answer to the interroga- tories and cross-interrogatories, did depose and say : In answer to interrogatory first : In answer to interrogatory second : [Signature of witness.'] Sworn to and subscribed before me at , the day of , A. D. 18 . , Commissioner. Certificate. STATE OF MISSISSIPPI, ") County of , ) I, , specially appointed a commissioner in the cause styled in the caption of the foregoing deposition, to take the testimony of DEPOSITIONS. 241 MISSISSIPPI CONTINUED. , a witness for the complainant in said cause, do hereby certify that I caused to come before me the said , at , and he, be- ing by me first duly cautioned, sworn, and examined to speak the truth, the whole truth, and nothing but the truth, in answer to the said interrogatories and cross-interrogatories did give the foregoing deposition ; that the answers of the said were by me reduced to writing in the present of said witness, and carefully read to and thoroughly understood by said witness, as his deposition in said cause, and that he signed the same as his deposition in my presence, and that the questions propounded to said witness, and to which he answered, are the direct and cross-interrogatories accompanying said commission ; that said deposition has in no manner been changed or altered since the same was subscribed by the said witness, but that the same was in my possession up to the time of sealing and delivering the same to the post-office, [or party, as the case may be] directed to the clerk of said Court. In witness whereof, I have hereunto set my hand and affixed my seal, this day of A. D. 18 . , Commissioner. MISSOURI In the State, the commission may be directed to any judge, justice of the peace, notary public, or clerk of a Court of Record, being in the county where such testimony is to be taken. Out of the State, the commission may be directed to and executed by any clerk or judge of a Court of Record, or notary public in any of the United States. 2 Wag. Stat. 992. The officer shall reduce to writing all the answers of the wit- nesses ; and all the questions and answers shall be written in the English language, and, being distinctly read to such witness, shall be sworn to and subscribed by him. The officer shall have power to adjourn from day to day, whenever necessary. He shall attach a certificate, stating the time and place, when and where the deposi- tions were taken ; that the witnesses were duly sworn as to the truth of their depositions, and that they subscribed the same ; and yhall inclose them, together with the commission and evidence of notice ; and the whole, carefully sealed up, shall be sent by the officer, by mail, to the clerk of the Court. The official character of the officer should be certified to, by some Court of Record, where he acts under seal. 130. Form of caption and certificate. Depositions of witnesses, produced, sworn, and examined on the day of , in the year of our Lord 18 , between the NOTARIES 16. 242 DEPOSITIONS. MISSOURI CONTINUED. hours of eight o'clock in the forenoon and six o'clock in the after- noon of that day, at , [here give fall official address'] before me, a commissioner appointed in a certain cause, now depending in the Court, of the county of , in the State of Missouri, between John Doe, plaintiff, and Richard Roe, defendant, on the part of the plaintiff [or defendant] ; A B, of lawful age, being pro- duced, sworn, and examined on the part of the plaintiff, deposeth and saith : The officer will annex", at the foot of the deposition of each wit- ness, the following certificate : Subscribed and sworn to before me on the day, at the place, and within the hours aforesaid. , Commissioner. Certificate. I, , a within and for the city and county of , in the State of , do certify that, in pursuance of the [within or an- nexed, as the case may be] commission or notice, came before me, at , in the county and State last aforesaid, [here insert names of witnesses} who were by me severally sworn [or affirmed] to testify the whole truth of their knowledge touching the matter in controversy aforesaid ; that they were examined, and their exami- nation reduced to writing and subscribed by them respectively, in my presence, on the day, between the hours, and at the place in that behalf first aforesaid, and their said depositions are now herewith returned. [If the officer know the residence of the witness, he will include the following in his certificate :] And I further certify that said A B is a resident of the county of in the State of . Given at , in the county of and State of , this day of , 18 . , Commissioner. The depositions must be begun on the day mentioned in the notice; and if they cannot be finished on that day, the tak- ing of them may be adjourned to the succeeding day, at the same place, and between%he same hours. The person taking them should in such case make the following entry, closing the business for that day : Not being able to complete the taking of said depositions, by reason that [here insert the cause'} I adjourned the further taking of the same till to-morrow, then to be continued, at the same place and between the same hours mentioned in the annexed notice. , Commissioner. On the succeeding day let the person taking the deposition com- mence as follows : Pursuant to the adjournment, as above stated, on the day of 18 , between the hours of o'clock in the forenoon, / / / and o'clock in the afternoon, at the county of , I contin- ued the taking of said depositions as follows, viz : , in contin- uation of his deposition commenced yesterday, on his oath further says, etc. DEPOSITIONS. 243 In the Territory, a deposition may be taken before any judge or clerk, or any justice of the peace, or notary public. After the ex- amination is completed, the deposition shall be carefully read to the witness, and corrected by him. in any particular ; it shall then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed and di- rected to the clerk of the Court, or to such person as the parties in writing may agree upon. Laws of Montana, p. 131. The deposition of a witness out of the Territory shall be taken upon commission issued from the Court where the suit is pending. It shall be issued to a person agreed upon between the parties, or, if they do not agree, to any judge or justice of the peace selected by the officer granting the commission, or to a commissioner ap- pointed by the governor of the Territory to take affidavits and dep- ositions in other States, or to a notary public. The commission shall authorize the commissioner to administer an oath to the wit- ness, and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the Court in a sealed envelope, directed as in the case of depositions taken within the State. Laws of Montana, p. 133. The form for California may be used. NEBRASKA. Depositions in other States and Territories may be taken before any of the following officers : 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, a commissioner ap- pointed by the governor, or any person appointed by a special com- mission. Depositions out of the State must be taken on written interrogatories, unless the parties otherwise agree. Gen. Stat. of 1873, p. 588. The deposition shall be written in the presence of the officer taking the same, either by the officer, the witness, or some disinter- ested person. The deposition, when completed, shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the Court. The officer taking the deposition sufficiently authenticates his of- ficial character by the seal of the Court, or his official seal ; but if the officer have no official seal, the deposition, when not taken within the State, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in Court, or by the official certificate and seal of any secretary or other officer of State keeping the great seal thereof, or of the clerk of 244 DEPOSITIONS. NEBRASKA CONTINUED. any Court having a seal. The officer taking a deposition shall an- nex a certificate showing the following facts : 1. That the witness was sworn to testify the truth, the whole truth, and nothing but the truth. 2. That the deposition was reduced to writing by some proper person, naming him. 3. That the deposition was written and subscribed in the presence of the officer certifying thereto. 4. That the deposition was taken at the time and place specified in the notice. Gen. Stat. 589. 131. Form of caption and certificate. Depositions of witness taken in an action pending in the Court of County, in the State of Nebraska, wherein A B is plaintiff and C D is defendant, and for said plaintiff [or defendant] in pursu- ance of the notice hereto annexed. \Here state which of the par- ties, their agents or attorneys, were present^ , of the county of and State of , of lawful age, being first duly sworn by me as hereinafter certified, deposes as fol- lows : If more than one witness is called to testify, let each succeeding one commence as follows : Also, , of the county of and State of , of lawful age, being first duly sworn by me as hereinafter certified, deposes as follows : Certificate. I, , do hereby certify that the above-named and were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth ; that the foregoing depositions, by them respectively subscribed, were reduced to writing by me, [or by the witness, or by M N, a disinterested person] and were written, and, by said witnesses respectively, subscribed in my presence, and were taken at the time and placepecified in the notice hereunto attached. Witness my hand and seal, [if one there be] this day of , A. D. 18 . , Commissioner. NEVADA. In the State, a deposition may be taken before any judge or clerk of a Court, or any justice of the peace or notary public. Either party may attend such examination, and put such questions as may be proper. The deposition, when completed, shall be carefully read to and corrected by the witness in any particular, if desired ; it shall then be subscribed by the witness, certified by the officer, in- closed in an envelope or wrapper, sealed and directed to the clerk of the Court, or to such person as the parties in writing may agree upon. DEPOSITIONS. 245 NEVADA CONTINUED. Out of the State, the deposition of a witness may be taken on a commission directed to a person agreed upon by the parties, or, if they do not agree, to any judge or justice of the peace, selected by the officer granting the commission, or to a commissioner appointed by the Governor of the State, to take affidavits and depositions in other States or Territories. Comp. Laws, Sec. 1473. The com- mission shall authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to the interroga- tories, or, when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the Court, in a sealed envelope, directed to the clerk, or other person designed or agreed upon, and forwarded to him by mail or other usual channel of conveyance. Sec. 1475. 132. Form of caption and certificate. Depositions of witnesses produced, sworn, [or affirmed] and ex- amined, the day of , in the year one thousand eight hun- dred and , at , under and by virtue of a commission issued out of District Court of the Judicial District of the State of Nevada, in and for the county of , in a certain cause therein depending and at issue between and , as follows : , of , by occupation a , aged years and upwards, being duly and publicly sworn, [or affirmed] pursuant to the directions hereto annexed, and examined on the part of the plaintiff, [or defendant] doth depose and say as follows, namely: To the first interrogatory he saith : To the second interrogatory he saith : \_And so on.] When the witness has finished his deposition, let him subscribe it, and the acting commissioner will certify as follows : Examination taken, reduced to writing, and by the witness sub- scribed and sworn to, this day of , A. D. 18 , before me. , Commissioner. "When any papers or exhibits are produced and proved, they must be annexed to the depositions in which they are referred to, and be subscribed by the witness, and be indorsed by the acting commissioner in this manner : At the execution of a commission for the examination of wit- nesses between , plaintiff, and , defendant, this paper writ- ing was produced and ^worn to by , and by him deposed unto, at the time of his examination before me. , Commissioner. The acting commissioners will sign their names to each half-sheet of the depositions and exhibits. The commissioner will make re- turn on the back of the commission by indorsement, thus : 246 DEPOSITIONS. NEVADA CONTINUED. The execution of this appears in certain schedules hereunto annexed. , Commissioner. The depositions and exhibits [if any] shall be annexed to the commission, and all folded and bound with tape. The commission- er will set his seal at the several meetings or crossings of the tape, indorse their names on the outside, and direct to the clerk of the Court. When the commission is returned by mail, it should be deposited in the nearest "post-office, the commissioner making the following indorsement thereon : Deposited in the post-office at , this day of , 18 , by me. , Commissioner. NEW HAMPSHIRE. Depositions in the State may be taken by any justice or notary public ; if taken out of the State, before any commissioner ap- pointed by the governor to take acknowledgments, etc., or before any judge, justice of the peace, or notary public. Where a dep- osition is taken out of the State, the official character of the person before whom it is taken must be duly certified by some cleric of a Court of Record, under its seal, or by the secretary of State, under the seal of the State, which certificate must be annex- ed to the caption. The witness must sign the deposition and make oath that it contains the truth, the whole truth, and nothing but the truth, concerning the cause for which it is taken. The officer shall certify that the oath was administered, the time and place of taking the deposition, the case and Court in which it is to be used, that the adverse party was or was not present, was or was not notified, and that he did or did not object. A copy of the notice left with the adverse party^Jiis agent or attorney, with the return of the officer or affidavit of the person leaving such notice thereon, stating the time of leaving the same, shall be annexed to the caption of the deposition, when the adverse party does not attend. Depositions shall be sealed up by the officer, and directed to the Court or justice before whom they are to be used, with a brief description of the case, and shall be so delivered into Court. Gen. Stat. p. 430. It is required that the commissioner note on the deposition the fees, and tax the same. 133. Form of caption and certificate. STATE OF NEW HAMPSHIRE, ) County of , j ss< Personally appearing the within named , at , in said county, on this day of , A. D. 18 , and made solemn DEPOSITIONS. 247 NEW HAMPSHIRE CONTINUED. oath that the within deposition, by him subscribed, contains the truth, the whole truth, and nothing but the truth relative to the cause for which it was taken. Taken at the request of , of the aforesaid, to be used at the Court, to be held at , in and for the county of , in the State of New Hampshire, on , in a plea wherein , of , aforesaid, is plaintiff, and , of , aforesaid, is defendant. That said , being duly notified, was [or was not] present, and did not object. The deponent living more than ten miles from the place of trial is the cause of this caption. The taking of said deposition was commenced at 11 o'clock of the forenoon in said day, and continued till the whole was completed before me. * , Commissioner. Commissioner's fees $ Deponent's fees Notification Service of notification Subpoena . . . Services. . Taxed on the day of , 18 , by , Commissioner. The depositions should be sealed up in an envelope, and addressed to the Court for the county of , in the State of New Hampshire, and, in addition, should be written on the en- velope as follows : Inclosed are depositions to be used in the action in which is plaintiff and is defendant. Taken and sealed by me, , Commissioner. NEW JERSEY. Depositions of witnesses residing out of the State may be taken by any chancellor, judge of a Supreme, Circuit, or District Court, commissioner appointed by the governor to take acknowledgments and proofs of deeds, residing in the State where such witness is, or a commissioner appointed by the Court in which such suit is pending. The testimony is to be taken on oath or affirmation, and the interrogatories and answers reduced to writing by the officer, and subscribed by the deponent in his presence. The officer himself must first take and subscribe an oath or affirmation to fairly and impartially take the deposition, before some person lawfully author- ized to administer oaths where the officer resides. The testimony t!48 DEPOSITIONS. NEW JERSEY CONTINUED. must be certified, sealed up, indorsed, directed, and forwarded to the judge of the Court wherein the cause is pending. 134. Form of caption. STATE OF NEW JERSEY, ") County of , ,| Si Be it remembered, that on this day of , in the year 18 , before me, , appeared and , produced before me as witnesses in a suit now depending in the Court of the State of New Jersey, wherein John Doe is plaintiff and Richard Roe is defendant. And I, having first taken an oath fairly and im- partially to take the depositions of Witnesses before , of the Court, who is lawfully authorized to administer oaths in this State and county, proceeded to take the testimony of said witnesses hereinafter named, upon interrogatories put by , who appeared on behalf of the plaintiff, and , who appeared on behalf of the defendant, and reduced such interrogatories and the answers thereto in writing, and caused each witness to subscribe his deposition in my presence, as follows : , Commissioner. A B, a witness produced on the part of the plaintiff, [or defend- ant] being by me first duly sworn, according to law, doth depose and say [or doth solemnly declare] as f ollows : NEW YORK. The deposition of witnesses out of the State may be taken on a commission directed to one or more competent persons, authoriz- ing them, or any one of them, to examine witnesses on oath, upon the interrogatories annexed. It "is customary to issue the commission to an attorney. With the commission and interrogatories are in- closed printed instructions for the guidance of the commissioner. The following are the statutory directions for executing the com- mission : 1. The commissioners, or any one of them, shall publicly administer an oath to the witnesses, that the answers given by them shall be the truth, the whole truth, and nothing but the truth. 2. They shall cause the examination of each witness to be reduced to writing, and to be subscribed by him and certified by the commis- sioners present. 3. Exhibits produced and proved shall be annexed to the depositions to which they relate, shall be subscribed by the witness, and certified by the commissioners. 4. The commission- ers shall subscribe their names to each sheet of the depositions ; they shall annex all the exhibits to the commission, upon which their return shall be indorsed, and they shall close them up under their seals, and shall address the same, when so closed, to the clerk of the Court from which the commission issued. 5. If there be a DEPOSITIONS. 249 NEW YORK CONTINUED. direction on the commission to return the same by mail, they shall immediately deposit the packet, so directed, in the nearest post- office. 6. If there be a direction to return the same by an agent of the party who sued out the commission, the packet, so directed, shall be delivered to such agent. 3 Rev. Stat. (Gth Ed.) p. 655. The oath is administered in the following form : " You do swear that the answers which shall be given by you to the interrogatories proposed to you, shall be the truth, the whole truth, and nothing but the truth : So help you God." The oath shall be administered (except in the cases hereinafter mentioned) by the witness laying his hand upon and kissing the gospels. But, should the witness de- sire it, he may be sworn in the following form : " You do swear, in the presence of the ever-living God," and while so swearing he may or may not hold up his hand, at his discretion. Or, when the witness has conscientious scruples, he can affirm in the follow- ing manner: "You do solemnly, sincerely, and truly declare and affirm," omitting the words " so help you God." 135. Form of caption and certificate. Depositions of witnesses, produced, sworn, [or affirmed] and ex- amined the day of , in the year one thousand eight hund- red and , under and by virtue of a commission issued out of the , in a certain action therein pending and at issue between John Doe, plaintiff, and Richard Roe, defendant, as follows : A B, of , aged and upwards, examined on the part of the plaintiff, [or defendant] doth depose and say as follows, namely: First. To the first interrogatory, he saith, etc. After the deposition is finished, let the witness subscribe his name, and the commissioner will certify as follows : Certificate. Examination taken, reduced to writing, and by the witness sub- scribed and sworn to, this day of , 18 , before me. , Commissioner. NORTH CAROLINA. The depositions shall be taken on commission issuing from the Court, and under the seal thereof, when the commissioner resides out of the county, by one or more commissioners who shall be of kin to neither party, and shall be appointed by the clerk. Battle's Digest, p. 227. The evidence shall be reduced to writing by the commissioners, they returning the interrogatories accompanying the commission and the evidence hi writing, together with a certificate under their 250 DEPOSITIONS. NORTH CAROLINA CONTINUED. hands and seals, stating when, where, and how the commission has been executed, inclosed, and sealed in an envelope, with the name of the case indorsed thereon and directed to the clerk of the Court from which the commission issued. The form for New York may be used. OHIO. Depositions may be taken in the State before a judge or clerk of the Supreme Court, the Court of Common Pleas, or Probate Court, before a justice of the peace, notary public, mayor or chief mag- istrate of any city or town corporate, or before a master commis- sioner, or any person empowered by a special commission. Out of the State, depositions may be taken before a judge, justice, or chan-, cellor of any Court of Record, a justice of the peace, notary pub- lic, mayor, or chief magistrate of any city or town corporate, or commissioner appointed by the governor of the State to take dep- ositions, or any person authorized by a special commission from the State. 2 S. & C. 1041. The deposition shall be written in the presence of the officer, either by him, the witness, or some disinterested person, and sub- scribed by the witness. The deposition so taken shall be sealed up and indorsed with the title of the cause and the name of the offi- cer taking the same, and by him addressed to the clerk of the Court where the action or proceeding is pending. 2 S & C. 1042. The officer shall annex a certificate stating the following facts : 1. That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth. 2. That the deposition was re- duced to writing by some proper person, naming him. 3. That the deposition was written and subscribed in the presence of the officer certifying thereto. 4. Tkat the deposition was taken at the tune and place specified in the notice. Officers taking depositions, whether in the State or out of it, can authenticate their official character by their seal and certificate ; but when they have no official seal, the deposition, if not taken within the State, shall be certified and signed by the officer, and shall be further authenticated, either by parol proof addused in Court, or by the official certificate and seal of any secretary or other officer of State keeping the great seal thereof, or of the clerk or prothonotary of any Court having a seal. When the deposition is taken under a special commission, it shall be sufficiently authenti- cated by the official signature of the officer or commissioner taking the same. 136. Form, of caption and certificate. The depositions of witnesses to be used in evidence in a certain action now pending in the Court in the County of , in DEPOSITIONS. 251 OHIO CONTESTDED. the State of Ohio, wherein John Doe is plaintiff and Richard Roe is defendant, A B, of , in the county of and State of , of lawful age, being first duly sworn, deposes and says as follows : Certificate. STATE OP OHIO,") County of , j ss< I, , do hereby certify that A B and C D were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth ; that the depositions by them respectively subscribed were reduced to writing by M N, a disinterested person, and were written and subscribed in my presence, and taken at the time and place specified in the notice hereto annexed. , Commissioner. OREGON. The deposition of a witness out of the State may be taken upon commission issued from the Court, or without commission before a commissioner appointed by the Governor of the State to take dep- ositions in other States or countries. The commission may 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 officer issuing it. The examination may be without written interrogatories, if the parties agree to that mode. The deposition, sealed, must be directed to the clerk of the Court. In the State, it is provided that the officer taking a deposition shall append a certificate under the seal of his office, if any, to the effect that the deposition was taken before him, or at a place men- tioned, between certain hours of a day or days mentioned, and reduced to writing by a person therein named ; that, before pro- ceeding to the examination, the witness was duly sworn to tell the truth, the whole truth, and nothing but the truth, and that the deposition was read to or by the witness, and then by him subscribed. The package may be sent by mail, or other usual channel of con- veyance. Gen. Stat. p. 351. 137. Form of caption and certificate. I, , of , in the county of , in the State of , be- ing first duly sworn to tell the truth, the whole truth, and nothing but the truth, in answer to the interrogatories and cross-interroga- tories annexed to the foregoing commission, depose and say as follows : To the first interrogatory, I answer : The deposition should be without interlineation, and each page, 252 DEPOSITIONS. OREGON CONTINUED. and each line of the page, should be numbered. The name of the witness, and words " direct examination," or " cross-examination," as the case may be, should be placed upon the margin of each page of the deposition. Certificate. STATE or OREGON, ") County of , j s ! This certifies that I, of the county of , in the State of , by virtue of the foregoing commission to me directed, caused the above named , the deponent therein mentioned, to come before me in my office in said county of , on the day of , A. D. 18 , between the hours of o'clock A. M. and p. M. of said day, and he, being then and there duly cautioned and sworn to tell the truth, the whole truth, and nothing but the truth, in answer to the several interrogatories and cross-interroga- tories thereto annexed, gave the foregoing answers, and that said answers were reduced to writing in my presence, and then care- fully read by me to the deponent, and then by him subscribed in my presence. In testimony whereof, I have hereunto set my hand and seal this day of . , A. D. 18 , Commissioner. PENNSYLVANIA. The depositions of witnesses are allowed to be taken out of the State under a commission, and according to such rules as the Courts may prescribe. The commission must be executed by the commis- sioner named therein. A reasonable notice should be given of the time and place of meeting to the agent who may attend the exe- cution of the commission; that he may collect the witnesses. The witness should be examined on oath or affirmation in the establish- ed form of the place, if the same be binding on his conscience, to make true answers to all such questions as shall be asked, upon the interrogatories annexed to the commission, without favor or affec- tion to either party, and therein to speak the truth, the whole truth, and nothing but the truth. When the witness finishes his deposition it should be subscribed with his name or mark, and the commissioners should subscribe their names opposite, for the pur- pose of identifying it, and at the foot of every page of testimony. Exhibits produced shall be verified by the signature of the witness, and certified by the commissioners. When an adjournment is necessary, the same shall be noted, and the reasons therefor. When all is completed, the following indorsement is made on the commission : " The execution of this commission appears in a cer- tain schedule hereunto annexed " ; the commissioners sign their names thereto, and also write their names across or beside the seals. ss. DEPOSITIONS. 253 PENNSYLVANIA CONTINUED. 138. Form of caption and certificate. Depositions of witnesses produced, sworn, [or affirmed] and ex- amined on the day of , in the year of our Lord 18 , at the office of , by virtue of a commission issuing from the Court of , for County, State of Pennsylvania, to him di- rected for the examination of witnesses in a certain cause depending in said Court, wherein John Doe is plaintiff and Ri chard Roe is defendant. A B, of the , aged years or thereabouts, being produced, sworn, [or affirmed] and examined on behalf of the plaintiff, [or defendant] deposeth as follows : To the first interrogatory on the part of the plaintiff [or defendant] he answers as follows : Certificate. STATE OP PENNSYLVANIA, County of , I, , do hereby certify that the said witness, , prior to the taking of such depositions on the said day of A. D. 18 , was by me duly sworn to testify the truth in relation to the matter in controversy, in the suit befoi-e mentioned in the cap- tion to this deposition, and in the inclosed commission, so far as he might be interrogated in relation thereto, and the said deposition was on the day of , A. D. 18 , in the , sworn to, taken and reduced to writing, and signed by said witness in my presence. Given under my hand and seal at , this day of , A. D. 18 . , Commissioner. RHODE ISLAND. Any justice of the Supreme Court, justice of the peace, or notary public may take the deposition of any witness to be used in the trial of any civil action in which he is not interested, nor of counsel, nor the attorney of either party. Every person before deposing shall be sworn to testify the truth, the whole truth, and nothing but the truth. He shall subscribe the testimony by him given after the same shall be reduced to writing, which shall be done only by the officer, or by the deponent in his presence. Rev. Stat. of 1872, p. 471. Depositions taken without the State shall be taken with the for- malities required by the law of the State or country in which the same shall have been taken, or before some commissioner appointed by the governor, or by some judge, chancellor, or other civil mag- istrate of such State or country. 254 DEPOSITIONS. RHODE ISLAND CONTINUED. 139. ( Form of certificate. STATE OF RHODE ISLAND, ) County of , | 8f Be it remembered, that in , on the day of , A. D. 18 , personally appeared before me, at , A B, who, being by me first carefully examined, cautioned, and sworn to testify the truth, the whole truth, -and nothing but the truth, gave the foregoing deposition, which was by me reduced to writing in his presence, [or by him reduced to writing in my presence] and by him signed in my presence. Taken at the request of , [by virtue of annexed commis- sion, as the case may be] to be used in the trial of an action pend- ing in the Court of , to be holden in , within and for the county of , in the State of Rhode Island, on the day of , A. D. 18 . The adverse party was duly notified, as appears by the return of the notification thereto annexed, and was [or was not] present. , Commissioner. Fees, forty cents each hour necessarily employed ; thirty cents each page. SOUTH CAROLINA. Notaries public and clerks of Courts may take depositions within the State. Rev. Stat. of 1873, pp. 113, 180. Out of the State the deposition of a witness is taken on a com- mission directed to commissioners specially named. Two com- missioners are required to execute the commission, who must themselves first take the following oath : " You shall, according to the best of your knowledge, truly, faithfully, and without partial- ity to any or either of the. parties in this cause, take the examina- tion and deposition of all and every witness and witnesses, produced and examined by virtue of the commission hereunto annexed, u, on the interrogatories now produced and left with you. And you shall not publish, disclose, or make known to any person or persons whatsoever, except the clerk or clerks by you employed, and sworn to secrecy in the execution of this commission, the contents of all or any of the depositions of witnesses, or any of them, to bo taken by you and the other commissioners in the commission named, or any of them, by virtue of the said commission, until publication shall pass by rule or order of the Court of : So help you God." When the commissioners begin, they will put the first interroga- tory to the first witness produced, and set down his answers thereto on a sheet entitled, " Depositions of witnesses sworn and examined," etc. When finished, they will fix and seal the sever.;! sheets together, and set their hands and seals at the bottom of the whole, and their hands to each sheet, leaving the covering sheet on the outside of the whole. They will then inclose the whole, com- DEPOSITIONS. 255 SOUTH CAROLINA CONTINUED. mission and all, in a large paper, well sealed up, with their seals and names affixed thereto ; and, having first indorsed the packet on a corner with the names of the parties, direct the same as pointed out in the commission. TENNESSEE. If taken in the State, depositions may be taken before a justice of the peace, any clerk of the Court, mayor of a town or city, and notary public, or, if taken out of the State, by a commissioner of deeds, appointed by the governor of the State to reside therein, judge of a Court, or any one appointed on commission. When taken by a notary or commissioner, their official seals must be at- tached to the certificate. The deponent, or officer taking the dep- osition, must write the testimony, or some one agreed upon by the parties. 140. Form of caption and certificate. JOHN DOE vs. RICHARD ROE. In the Court of County, State of Tennessee [here in- sert the names of plaintiffs or defendants, or their agents or attor- neys present]. Depositions of A B and C D, witnesses for the plaintiff [or de- fendant] in the above cause, taken upon notice [or interrogatories] on the day of , A. D. 18 , at , in the presence of The witness, A B, aged , being sworn, deposed as follows : Certificate. I, , do certify that the foregoing depositions were taken be- fore me, as stated in the caption, and reduced to writing by me [or the witnesses]. And I further certify that I am not interested in the cause, nor of kin or counsel to either of the parties ; and that I sealed them up and delivered them to , [or put them in the postoffice, or delivered them to the agent of the express com- pany, at , to be forwarded by express, as the case may be] without their being out of my possession or altered after they were taken. Given under my hand and seal, at , this day of , A. D. 18 . , Commissioner. TEXAS. When a commission is issued to take the testimony of a witness out of the State, in a criminal suit, it may be directed to a judge 256 DEPOSITIONS. TEXAS CONTINUED. or chancellor of a Superior Court of Law or Equity, or to a com- missioner residing in the State. Paschal's Dig. Art. 3233. In a civil suit, the deposition of a witness out of the State may be taken on commission directed to any public officer of any town, city, district, county, or State, or other political division of any government beyond the limits of this State. Paschal's Dig. Art. 3730. In every case where depositions are taken under commission in criminal actions, the officer or officers taking the same shall certify that the person deposing is the identical person named in the com- mission ; or, if they cannot certify to the identity of the witness, there shall be an affidavit of some person attached to the deposition, proving the identity, and the officer or officers shall certify that the person making the affidavit is known to them, and is worthy of credit. The official seal of each officer shall be attached to the cer- tificate. Arts. 3239, 3240. In a civil cause, the officer to whom any commission is directed, upon the appearance of the witness before him, shall take his answer to the interrogatories, which shall be reduced to writing, and shall be signed and sworn to by the witness ; when the officer taking the same shall certify, under his hand and seal of office, that the answers were signed and sworn to by the witness before him, and seal them up in an envelope with the interrogatories and the commission, with his name across the seal, indorse the names of the parties to the suit, and the names of the witnesses, and direct the package to the clerk of the Court. Art. 3730. If sent by mail, the postmaster must indoi'se on the envelope that he received it from the hands of the commissioner. If sent by private conveyance, the person who receives the same must make oath that it has not been out of his possession, and has un- dergone no alterations. 141. Form of caption and certificate. STATE OF TEXAS, \ County of , ) In accordance with a commission issued from the office of the clerk of the Court of County, in the State of Texas, in the case of John Doe v. Richard Roe, in said Court pending, to take the deposition of A B, a witness therein named, of lawful age, whom I caused to come before me at my office, in the , who, being by me duly sworn to make true answers to all such interrog- atories as should be propounded to him, answered as follows : When the deposition is completed, and the witness has signed his name thereto, then add the following : DEPOSITIONS. 257 TEXAS CONTINUED. Certificate. STATE OF TEXAS,) County of , ) I, , do hereby certify that the foregoing answers were sworn to and subscribed by the witness, A B, before me. Given under my hand and seal this day of , A. D. 18 . , Commissioner. VERMONT. A commission may be issued to such person as the judge may appoint to take the testimony of any person residing or being without the State ; and such testimony shall be taken either upon interrogatories, settled upon the order of such judge, or upon oral examination, as such judge shall direct. No agent, attorney, or person interested in any cause, shall write or draw up the deposi- tion of any witness, to be used in such cause ; and any deposition so written or drawn up, or returned to the clerk of the Court un- sealed, or with the seal broken, shall be rejected by the Court. 142. Form of caption and certificate. STATE OF VERMONT,") County of , j ' k At , in said county of , this day of -, A. D. 18 , personally appeared A B, and made oath that the fore- going deposition, by him subscribed, contains the whole truth, and nothing but the truth. Before me, , Commissioner. The above deposition was taken at the request of , to be used in a cause to be heard and tried by , \Jiere insert the style of the Court, or name of the judge by whom the case is to be tried, and the time and place of session] in which cause John Doe is plaintiff and Richard Roe is defendant. The deponent [state the reason of taking the deposition] is the cause of the taking this deposition, and the adverse party was notified and did [or did not] attend. , Commissioner. VIRGINIA. In the State, a deposition may be taken without commission by a justice, or notary public, or by a commissioner in chancery ; and if certified under his hand, may be received without proof of the signature to such certificate. Out of the State, a deposition may be taken on a commission directed to any commissioner appointed by the governor of this State, or to any justice or notary public of NOTARIES 17. 258 DEPOSITIONS. VIRGINIA CONTINUED. the State wherein the witness may be. Any person or persons to whom a commission is so directed, may administer an oath to the witness, and 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 same State or country under his official seal, unless the deposition is taken by a justice out of this State, but in the United States, in which case his certifi- cate shall be received without any seal annexed, or other authenti- cation of his signature. Code of 1860, p. 726. 143. Form of caption and certificate. STATE OP TEXAS, ) County of , j 8S< I, , do hereby certify that on the day of , 18 , at my office, between the hours of and , A B and C D, witnesses on behalf of the plaintiff, [or defendant] in a suit depend- ing in the Court of , in the State of Virginia, came before me, and the said , A B, having been first duly sworn, deposeth and saith as follows: And further, this deponent saith not. And the said C B, having been first duly sworn, deposeth and saith as follows : And further, this deponent saith not. . Which examination being completed, I now send and certify the same unto the said Court of the county of , in the State of Virginia. In testimony whereof, I hereunto subscribe my name and affix my seal on the day of , 18 , at the place and between the hours specified. -. Commissioner. The depositions are then to be inclosed and the envelope sealed and directed as follows : To the Clerk of the Court of County, Virginia. WASHINGTON TERRITORY. Either party may have the deposition of a witness taken in the Territory before any judge of the District Court, justice of the peace, clerk of the Supreme or District Courts, mayor of a city, or notary public. The deposition shall be written by the officer taking the same, or by the witness, or by some disinterested person, in the presence and under the direction of such officer. When completed, it shall be carefully read. to or by the witness, corrected if desired, and subscribed by him, and certified by the officer sub- stantially as follows : DEPOSITIONS. 259 WASHINGTON TERRITORY CONTINUED. 144. Certificate. TERRITORY OF WASHINGTON, County of , I, A B, justice of the peace in and for said county, [or judge, clerk, etc., as the case may be] do hereby certify that the above deposition was taken before me, and reduced to writing by myself, [or witness, as the case may be] at , in said county, on the day of , 18 , at o'clock, in pursuance of notice hereunto annexed ; that the above-named witness, before examina- tion, was sworn [or affirmed] to testify the truth, the whole truth, and nothing but the truth ; and that the said deposition was care- fully read to [or by] said witness, and then subscribed by him. Dated at , the day of , 18 . A B, Justice of the Peace. Depositions may be taken out of the Territory on a commission issued to a person or persons, not exceeding three, agreed upon by the parties ; or, if they do not agree, to any judge, justice of the peace, notary public, or other competent person selected by the Court. The commission shall authorize the commissioner or commission- ers to administer an oath to the witness, and to take his deposition in answer to the several interrogatories annexed, or, when the exam- ination is to be without interrogatories, in respect to the question in dispute, to certify the deposition to the Court, and to direct to the clerk of the Court, or such other person designated or agreed upon, and forward to him by mail or other usual channel of convey- ance. Laws of Washington, 1854-7, p. 193. No form is prescribed ; that used for depositions in the State will suffice. WEST VIRGINIA. The same form and rules as were given for Virginia are adapted also to this State. WISCONSIN. In the State, the deposition of a witness may be taken before any justice of the peace, or other person authorized by law to take depositions. 2 Taylor's Stat. 1587. The deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth, relating to the cause for which the deposition is taken, and he shall then be examined by the par- ties, if they think fit, or by the justice, and his testimony shall be taken in writing: p. 1588. The deposition of any witness without the State may be taken under a commission, issued to one or more 260 DEPOSITIONS. WISCONSIN COSTTINTJED. competent persons, in any State or country, by the Court in which the cause is pending. The statute prescribes the following certificate in the State 145. Certificate. STATE OF WISCONSIN, "> County, f Si I, A B, justice of the peace in and for said county, do hereby cer- tify that the above deposition was taken before me, at my office in the town of , in said county, on the day of , 1 8 , at o'clock ; that it was taken at the request of the plaintiff, [or defendant] upon verbal [or written] interrogatories ; that it was re- duced to writing by myself [or by deponent, or by , a disinter- ested person, in my presence and under my direction] ; that it was taken to be used in an action of A B v. C D, now pending in the Court, and the reason for taking it was [here state the true reason] ; that attended at the taking of said deposition [or that a notice, of which the annexed is a copy, was served upon him on the day of , 18 ] ; that said deponent, before examination, was sworn to testify the truth, the whole truth, and nothing but the truth relative to said cause, and that said deposi- tion was carefully read to [or by] said deponent, and then sub- scribed by him. Dated . A B, Justice of the Peace. [2 Taylor's Stat. 1588.] In the return of a deposition taken on commission out of the State, the following form is used: Form of caption and certificate. Deposition of witness produced, sworn, [or affirmed] and exam- ined the day of , in the year one thousand eight hundred and , at , under and by virtue of a commission issued out of the Court of County, in a certain cause therein depend- ing and at issue between John Doe, plaintiff, and Richard Roe, de- fendant, as follows : A B, of , aged years and upwards, being duly and publicly sworn, [or affirmed] pursuant to the directions hereto an- nexed, and examined on the part of the plaintiff, doth depose and say as follows, viz : First. To the first interrogatory, he saith, etc. When the witness has finished, he will subscribe, and the com- missioner appends the following : Certificate. Examination taken, reduced to writing, and by the witness sub- scribed, this day of , A. D. 18 . Before me, Commissioner. DEPOSITIONS. 201 WYOMING. Depositions may be taken in this Territory before a judge or clerk of the Supreme or District Court, or before a probate judge, justice of the peace, notary public, mayor or chief magistrate of any city or town corporate, or before a master commissioner, or any- person empowered by a special commission. Depositions may be taken out of the Territory by a judge, jus- tice, or chancellor of any Court of Record, a justice of the peace, notary pxiblic, mayor or chief magistrate of any city or town cor- porate, a commissioner appointed by the governor, or any person authorized by a special commission from the Territory. Comp. Laws of 1876, pp. 77-8. The deposition shall be written in the presence of the officer tak- ing the same, either by the officer, the witness, or some disinterested person, and subscribed by the witness. The deposition shall be sealed up and indorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the Court where the action or proceeding is pending. Officers herein authorized may authenticate their official charac- ter, with their own seals. If the officer have no official seal, the deposition if not taken in the Territory shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in Court, or by the official certificate and seal of any secretary or other officer of State, keeping the great seal thereof, or by the clerk of the Court, having a seal attesting that such judicial officer was, at the time of taking the same, authorized to take such deposition. But if the deposition is taken under com- mission, this is not necessary. The officer shall certify the following facts : 1. That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth. 2. That the deposition was reduced to writing by some proper person, naming him. 3. That the deposition was written and subscribed in the presence of the officer certifying thereto. 4. That the deposition was taken at the time and place specified in the notice. Comp. Laws of 1876, p. 79. These are substantially the same as required in the Ohio statute, and the form for that State may be used. IN UNITED STATES COURTS. The United States Revised Statutes, Sec. 863, provide : " The testimony of any witness may be taken in any civil cause, depend- ing in a District or Circuit Court, by deposition de bene esse, when the 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 262 DEPOSITIONS. IN UNITED STATES COURTS CONTINUED. the place of trial, or Avhen he is ancient or infirm. The deposition may be taken before any judge of any Court of the United States, or any commissioner of a Circuit Court, or any chancellor, justice, or judge of a Supreme or Superior Court, mayor or chief magis- trate of a city, judge of a County Court or Court of Common Pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing, by the party or his attorney proposing to take such deposi- tion, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness, and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the ab- sence from the district and want of an attorney of record, or other reason, the giving of the notice herein required shall be impracti- cable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge author- ized to hold Courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in Court. 146. Certificate of officer. {Title of suit.] Deposition of , for plaintiff. STATE OF , ") County of , j Ki I hereby certify that on the day of , A. D. 18 , before me , [giving name and title in f till \ at my office, , in the city of , between the hours'of and , was produced to, and personally came before me, E F, the witness named in the notice hereunto annexed, to depose in a civil cause depending in the [Cir- cuit Court of the United States for the district of ], wherein A B is plaintiff and C D defendant; and that I was then and there attended by , Esq., counsel for plaintiff, and by , Esq., counsel for defendant. And the said E F, being of law- ful age and sound mind, and being by me first duly examined, cau- tioned, and sworn to tell the truth, the whole truth, and nothing but the truth touching his knowledge of the matters and things in controversy in said civil cause, deposed and said as follows : \Sere follows the testimony^ which should be by question and answer as far as practicable, so as to indicate whatever objections may be offered^ I further certify that the foregoing deposition of E F was then and there reduced to writing by me, in the presence of the depon- ent, and to him, by me, carefully read over, and by him subscribed DEPOSITIONS. 263 IN UNITED STATES COURTS CONTINUED. in my presence, after being so reduced to writing, and that the reason for taking such deposition was, and is, that the deponent, the witness E F, resides at , more than one hundred miles from , where said civil cause is appointed to be tried [or what- ever the reason as pointed out in the statute]. I further certify that I am not of counsel or attorney to either of the parties to this suit, nor interested in the event of this cause ; and that, it being impracticable for me to deliver said deposition with my own hand into the Court for which it was taken, I re- tained the same for the purpose of being sealed up by me, and speedily and safely transmitted by [mail] to the said Court for which it was taken, and to remain under my seal entire until opened; that the fee for taking the said deposition, $ , has been paid to me by , and that the same is just and reasonable for the service. Given under my hand and seal, at , this day of , A. D. 18 . [/Signature and title.] [Seal.] The title and number of the cause, and the Court wherein de- pending, should be indorsed on the back of the envelope, and it should be directed to the clerk of the Court where the case is pend- ing. The commissioner, or officer taking the deposition, should write his name across the seal or wafer, and take the post- master's [or his clerk's] receipt on the back. Forms of Protest and Notice. 147. Protest for non-acceptance, English form. On this day of , one thousand eight hundred and , I, It B, a notary public, by lawful authority and sworn, dwelling in L , in the county of L and United Kingdom of Great Britain and Ireland, at the request of C D, the holder, [or bearer, as the case may be] did exhibit the original bill of exchange, whereof a true copy is on the other side written, to a clerk in the counting-house [or office] of Messi-s. Brown & Co., No. , Street, L , the persons upon whom the same is drawn, and de- manded acceptance thereof, when I received for answer that the said bill would not be accepted. W heref ore, I, the said notary, at the request aforesaid, have pro- tested, and by these presents do protest against the drawers and indorsers of the said bill and all others concerned for all exchange, re-exchange, and all costs, damages, and interest, present and to come, for want of acceptance of the said bill. Which I attest. It B, Notary Public. [It will be observed that no certificate is made as to notice given, because, according to the common law, the notary is not obliged to give notice to indorsers, In American protests, there is generally embodied a certificate showing to whom notices were sent, and the manner of sending the same.] 148. Protest for non-payment, English form. On this day of , [as in the preceding form, but insert after " holder "] did take [or exhibit] the original bill of exchange, whereof a true copy is on the other side written, at the counting- house [or office] of Messrs. Brown & Co., No. , Street, L , where the said bill is made payable by the acceptance thereof, in order to present the same and demand payment thereof, and the door was found fastened, and the place shut up, and there was no person there to give an answer [or received for answer that the same would not be paid]. Wherefore, I, the said notary, at the request aforesaid, have pro- tested, and by these presents do protest, against the drawers and indorsers of the said bill, and all others concerned, for all exchange, [264] PROTEST AND NOTICE. 265 re-exchange, and all costs, damages, and interest, present and to come, for want of payment of the said bill. Which I attest. R B, Notary Public. 149. Form in use in New York, for non-acceptance. UNITED STATES OF AMERICA, } State of New York, > ss. County of New York, } On the day of , in the year of our Lord one thousand eight hundred and , at the request of M N, the holder, I, Hol- land Smith, a notary public of the State of New York, duly com- missioned and sworn, dwelling in the city of New York, in the county of New York, did present the bill of exchange hereunto annexed, for dollars, to Y Z, at his place of business, No. , - Street, in the city of New York, and demand acceptance thereof, which was refused. Whereupon, I, the said notary, at the request aforesaid, did pro- test, and by these presents do publicly and solemnly protest, as well as against the drawer and indorsers of the said bill of ex- change, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interest, already incurred and hereafter to be incurred, for want of acceptance of the said bill. And I further certify that on the day of , 18 , due notice of the presentment and protest of the said bill of exchange was given by me to the maker and indorsers of the said bill of ex- change, by depositing notices in the pos1>office, at the city of New York, (prepaying the postage thereon) directed as follows : Notice for , [insert name'] directed to [insert residence]. Notice for , directed to . Notice for , directed to Each of the above named places being the reputed place of res- idence of the person to whom notice was so addressed, and the post-office nearest thereto. In testimony whereof, I have hereunto set my hand and affixed my seal of office, at the city of New York, , this day of , 187 . HOLLAND SMITH, [Notarial seal.] Notary Public. 150. For non-payment. UNITED STATES OF AMERICA, State of New York, County of New York, On the day of , in the year of our Lord one thousand eight hundred and , at the request of M N, the holder, I, Hol- land Smith, a notary public of the State of New York, duly com- missioned and sworn, dwelling in the city of New York, in the county of New York, did present the note hereunto annexed, for 266 PROTEST AND NOTICE. dollars, at the bank, in the city of New York, the place where the same was payable, [or at the office of ] and demanded payment thereof, which was refused [or give whatever answer may be made / or if no one was there, state the fact]. Whereupon, I, the said notary, at the request aforesaid, did pro- test, and by these presents do publicly and solemnly protest, as well as against the maker and indorsers of the said note, as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interest already incurred for want of payment of the said note. And I further certify that on the day of , 18 , due notice of the presentment and protest of the said note was given by me to the maker and indorsers of the said note, by depositing notices in the post-office at the city of New York, (prepaying the postage thereon) directed as follows : Notice for , [insert name~\ directed to [insert place"]. Notice for , directed to . Notice for , directed to Each of the aboved named places being the reputed place of res- idence of the person to whom notice was so addressed, and the post-office nearest thereto. In testimony whereof, I have hereunto set my hand and affixed my seal of office, at the city of New York, this day of - , 18 . HOLLAND SMITH, [Notarial seal.] Notary Public. 151. Form in use in California. UNITED STATES OP AMERICA, ) State of California, > ss City and County of San Francisco, ) By this public instrument of protest, be it known, that on this day of , in the year of our Lord one thousand eight hund- red and , at the request of M N, the holder of the original bill, [or note] whereof a true copy is on the reverse hereof written, I, Holland Smith, a notary* public in and for the city and county of San Francisco, State of California, aforesaid, residing therein, duly commissioned and sworn, did this day present said bill [or note] to the acceptor [or maker] personally, at San Francisco, of whom I then and there demanded payment of said bill [or note] which was by him refused, [reason may be stated, if any given] [or, when it is payable at a particular place, state] at No. Street, in the city of San Francisco, the place where said bill was payable, and demanded payment thereof, which was refused [or as the case may be]. Whereupon, I, the said notary, at the request aforesaid, did pro- test, and by these presents do publicly and solemnly protest, as well as against the drawer or maker of the said bill, [or note] as against all others with whom it doth or may concern, for all ex- change or re-exchange, damages, costs, charges, and interests, suf- fered or to be suffered, for want of payment [or acceptance, as the case may be] of said bill [or note]. PROTEST AND NOTICE. 267 Thus done and protested at said city and county of San Fran- cisco, on the day and year aforesaid. In testimony whereof, I grant these presents, under my signature, and the impress of my seal of office, at the city and county of San Francisco, on the day and year first above written. [Notarial seal.] HOLLAND SMITH, Notary Public. [Then follows on the reverse side, a copy of the instrument, ver- batim et literatim, with the indorsements thereon, and the notary appends the following certificate :] I, the undersigned notary, do hereby certify that the parties to the bill, [or note] whereof a true copy is above written, have been duly notified of the protest thereof by letters to them by me writ- ten, and addressed, dated on the day of the said protest, and served on them respectively in the manner following, viz : On A B, the indorser, said letter being by me delivered to , at the place of business of in said city and county of San Francisco, on the forenoon of the day of , 18 - . In faith whereof, I have hereunto signed my name, at the city and county of San Francisco, this day of , one thousand eight hundred and . HOLLAND SMITH, \_Notarial seal.] Notary Public. [By the Civil Code of California, Sec. 3144, it is provided that notice may be given in three ways : 1. By delivering it to the party to be charged personally, at any place ; or, 2. By delivering it to some person of discretion at the place of residence or business of such party, apparently acting for him ; or, 3. By properly folding the notice, directing it to the party to be charged, at his place of residence, according to the best information that the person giving the notice can obtain, depositing it in the post-office most conven- iently accessible from the place where the presentment was made, and paying the postage thereon.] 152. Form in use in Massachusetts. COMMONWEALTH or MASSACHUSETTS,] , County of Suffolk, f S{ On this day of , in the year of our Lord one thousand eight hundred and , I, Holland Smith, notary public by legal authority admitted and sworn, and dwelling in the city of Boston, at the request of the holders [or give their names] of the city of Boston, went with the original bill of exchange, of which the fore- going is a true copy, [copy is prefixed] to the country house of M N, and presented the same to the said M N for acceptance, [or pay- ment, as the case may be] when I received for answer that the same would not be accepted [or state whatever the real state of the facts may be]. Whereupon, I, the said notary, at the request aforesaid, have 268 PKOTEST AND NOTICE. protested, and by these presents do solemnly protest, against the drawer of said bill of exchange, indorsers, and all others concerned therein for exchange, re-exchange, and all costs, charges, damages, and interest suffered and sustained, or to be suffered and sustained, by reason of or in consequence of the non-acceptance of said bill of exchange. Thus done and protested in Boston aforesaid, and my notarial seal affixed, the day and year last written. [Notarial seal.] HOLLAND SMITH, Notary Public. 153. Form in Florida, as approved in~Span v. Baltzell^ 1 Fla. 801. TERRITORY OP FLORIDA,) Franklin County, ) SJ By this public instrument of protest be it known, that on the 25th day of May, 1842, at the request of Geo. F. Baltzell, the holder of the original note, of which a true copy is hereon indorsed, I, Marshall P. Ellis, a notary public residing in the city of Appala- chicola, qualified according to law, went to the office of the South- ern Life insurance Trust Co., and, presenting said note, demanded payment thereof from the cashier, who refused to pay the same that no funds were deposited for that purpose. Whereupon, I, the said notary, at the request aforesaid, do hereby solemnly and publicly protest the said note, as well against the drawer or maker thereof, as against the indorsers, and all persons who are or may be concerned therein, for all exchange, re-exchange, damages, costs, charges, and interest suffered or to be suffered for the non-payment of said note. Thus solemnly done and protested. Given under my hand and seal at Appalachicola, t"he day and year first above written. M. P. ELLIS, Notary Public. [This form was used thirty-five years- ago, and it will be seen it is almost identical with that now in use ; it is almost the same as that in use in California. In fact, there is no substantial difference between any of the forms given, except some are more formal than others.] 154. Notice of protest for nonracceptance. To JOHN DOE : Take notice, that a bill of exchange for $500, dated at Boston, May 1st, 1876, payable ten days after sight, drawn by William West on Charles Cash, to the order of Smith & Co., and indorsed by you, has this day been duly protested for non- acceptance. HOLLAND SMITH, Dated June 1st, 1876. Notary Public. PROTEST AND NOTICE. 269 155. Notice of protest for non-payment. To RICHARD ROE : Take notice, that a bill of exchange for $500, dated at Boston, May 1st, 1876, payable ten days after sight, drawn by Brown and Co. on Charles Cash, and accepted by him to the order of Francis Fish, and indorsed by you, has this day been duly protested for non-payment. HOLLAND SMITH, Dated July 1st, 1876. Notary Public. [In neither of these forms is it stated in the notice that the holder looks to the person to whom notice is sent, for payment ; for the mere fact of sending the notice implies this. See the chapter on Negotiable Instruments. But it is, however, often so stated, as in the following forms :] 156. Form of notice in use in California. STATE OF CALIFORNIA, City of San Francisco, Nov. 1st, 1876. SIR : Please take notice, that a certain bill of exchange, dated August 1st, 1876, for the sum of $1,000, payable at San Francisco, and drawn by Messrs. Brown & Co. in favor of James Smith, was this day presented by me, a notary public, to the acceptor, at his place of business, No. 14 California Street, San Francisco, and pay- ment thereof demanded, which was refused, and the said bill hav- ing been dishonored, the same was this day protested by me for non-payment [or non-acceptance, as it may be] thereof, and the holder looks to you for the payment thereof, together with all costs, charges interest, expenses, and damages already accrued, or that may hereafter accrue thereon, by reason of the non-payment of said bill of exchange. Very respectfully yours, etc., To JOHN SMITH, ESQ., HOLLAND SMITH, . Notary Public. 157. Notice where note at bank Juts been protested. $1,000. BOSTON, November 1st, 1876. Please take notice, that a promissory note, dated July 1st, 1876, signed by David Jones, payable to James Smith or order at the First National Bank in Boston, for the sum of one thousand dollars, indorsed by you, has been dishonored, payment having been duly demanded at its maturity, and that the said note has this day been protested for non-payment, and that the holder looks to you for the payment thereof. Yours, etc., HOLLAND SMITH, To RICHARD BROWN, ESQ. Notary Public. [It is unnecessary to give any further forms, as they all embody substantially the same particulars, namely : a description of the in- strument dishonored, the fact that it was dishonored, and the notifi- cation that the holder looks to the party receiving notice for 270 PROTEST AND NOTICE. indemnity, and even this last particular, though usual and proper, may be omitted without rendering the notice defective. See Sec. 120 of the. chapter on Negotiable Instruments, where this is dis- cussed.] SHIP PROTESTS. NOTE. On the arrival of a vessel in a port of destination, it is customary for the master to cause an entry or a note of a protest to be made, which is signed by him at the office of a notary. Drawn up in this manner, it usually contains certain particulars of the voyage, the port of departure, the name of the vessel, the time of entering the port of destination, and the nature of her cargo. The general mode of doing this is in a printed registry, which con- tains the formal parts, with proper blanks in which the above par- ticulars are inserted. This ceremony is kno\yn as noting a protest, or entering a note of protest, which may be done on the day of arrival, or the next day, though it is claimed, according to commer- cial usage, it is not too late to do it forty-eight hours after the ar- rival in port. But the more important occasions for entering or making a pro- test are when some mishap or accident befalls a vessel, disabling either the vessel or her crew, or injuring her cargo. The protest then becomes a very useful and important matter, as it may be the basis on which adjustment for losses may be made, and for refer- ence in calculating general average. When some accident befalls a vessel during her voyage, it is the duty of the master, 011 the first convenient occasion, to proceed to the office of a notary at the first port he reaches, and cause an entry or note of protest of this to be made. But there is no obligation on him to put his vessel in any peril to reach a port in order to make this protest. Subsequently to this noting or entry of a protest, a more formal and regular pro- test is made after the arrival in port, by the master and others of the crew, generally the nfaster, mate, and a seaman, who sign and declare to it before a notary, who may be the one before whom the first entry was made, or a different one. There is no particular, form prescribed for a ship protest; it gen- erally consists of two parts : the first is a statement or declaration of the facts and circumstances of the voyage, and the storms or bad weather which the vessel may have encountered, or any acci- dents which may have happened during the course of the voyage ; and the other is the part in which the appearers or the notary, or both the appearers or the notary, protest against the accidents or causes of the injury, and against all loss or damage occasioned thereby, and at the end is an attestation or certificate under the hand and seal of the notary. The protesting part need not be spun out to any length ; it is a mere form, and a few words are sufficient. For example, in case of damage or injury by storms or stress of weather, it may be aa follows : PEOTEST AND NOTICE. 271 " The appearers, A B, C D, and E F, do protest, and I, the un- dersigned notary, do also protest, against the bad" weather, gales, storms, accidents, and occurrences mentioned in the foregoing state- ment, [or hereunto annexed, as the case may be] and all loss or damage occasioned thereby " ; and it concludes with an attestation or short certificate, under the hand and seal of the notary, to the effect that it was declared and protested in due form. The statutes of the United States (Rev. Stat. Sec. 2891) pro- vide : " If any vessel from any foreign port, compelled by stress of weather or other necessity, shall put into any port of the United States, not being destined for the same, the master, 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 the collector, shall be produced to him, and to the naval officers, 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 hereb Tr to be done in other cases." 158. Entry or note of a ship protest. UNITED STATES OF AMERICA, ^ State of California, > ss. City and County of San Francisco, ) On this 1st day of February, in the year one thousand eight hundred and seventy-seven, personally appeared before me, the un- dersigned, a notary public for the State of California, at my office, No. 309 Montgomery Street, in the city of San Francisco, Peter Brine, master of the ship or vessel Thyra, of Bristol, England, and declared that said ship sailed on a voyage from Charleston, in the United States of America, on the first day of November last, bound for Portland, Oregon, with a cargo of hardware, but that in the prosecution of her voyage [here state fully the particulars of the accident, etc.~]. Wherefore, the said master doth hereby give notice of his inten- tion of protesting against the aforesaid matters and things, acci- dents and occurrences, and ail damage and loss sustained thereby, and causes this note or minute of all and singular the premises to be entered. PETEE BEINE, HOLLAND SMITH, Master. Notary Public. [This note or memorandum must be entered in a book of " Ship Protests," to be kept by the notary. The outline of the form may be printed, with blanks in which the particular circumstances of the case are written. A certified copy of this noting may be given to the master.] 272 PROTEST AND NOTICE. 158. Regular or extended ship protest. UNITED STATES OF AMERICA, "J State of California, > ss. City and County of San Francisco, ) By this public instrument of declaration and protest, be it known : That on this second day of February, in the year one thous- and eight hundred and seventy-seven, before me, Holland Smith, a notary public for the State of California, duly commissioned and sworn, and dwelling in the city of San Francisco,'in said State, per- sonally came and appeared Peter Brine, master and commander of the ship or vessel the Thyra, belonging to Bristol, England ; also John Mainsell, first mate, and James Quick and Thomas Crosstree, seamen of said ship, who did, upon oath duly administered, sever- ally and solemnly declare and state as follows [here give a futt statement of the particulars that occasion the protest]. And the said Peter Brine, master, further declares that on the day of the arrival of the said ship at this port, he appeared at the offic"e of , [insert name] a notary public for the State of Cali- fornia, in said city of San Francisco, and duly noted and entered his protest, and now extends the same. Wherefore, these appearers, as well as I, the said notary, do pro- test against all and singular the premises, the aforesaid bad weather, gales, storms, winds, high seas, accidents, casualties, occurrences, and all loss, damage, and expense sustained thereby or arising therefrom. PETEE BRINE, Master. JOHN MAINSELL, Mate. JAMES QUICK, Seaman. THOMAS CEOSSTEEE, Seaman. Thus declared, protested, subscribed, and sworn to, at the city of San Francisco, the day and year aforesaid, before me, and I have hereunto set my hand and seal of office. HOLLAND SMITH, [Seal.] Notary Public. 160. Deed with fuU covenants and warranty. This indenture, made the day of , in the year one thoxis- ancl eight hundred and seventy , between and , his wife, of the city of , in ttie county of , State of , parties of the first part, and , of the same place, party of the second part, Witnesseth : That the said parties of the first part, for and in consideration of the sum of dollars, lawful money of the United States, to them in hand paid by the same party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said party of the second part, his heirs, executors, and administrators, forever released and discharged from the same, by these presents, have granted, bargained, sold, aliened, remised, released, conveyed, and confirmed, and by these presents do grant, bargain, sell, alien, remise, release, convey, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all that certain [here insert a desertion of the premises] ; together with all and singular the tenements, hereditaments, and appurtenances there- unto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, dower, right of dower, property, possession, claim, and demand whatso- ever, as well in law as in equity, of the said parties of the first part of, in, and to the same, and every part and parcel thereof, with the appurtenances. To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party hereto of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof forever. \Here insert a description of any incumbrance to which the premises are subject.] And the said , for himself, his heirs, executors, and adminis- trators, doth covenant, grant, and agree to and with the same party of the second part, his heirs and assigns, that the said , at the. time of the sealing and delivery of these presents, is lawfully seized, in his own right, of a good, absolute, and indefeasible estate of inheritance in fee-simple, 'of and in, all and singular, the above granted, bargained, and described premises, with the appurtenances, (subject as aforesaid) and hath good right, full power, and law- ful authority to grant, bargain, sell, and convey the same in man- ner and form aforesaid. And that the said party of the second NOTARIES 18. [ 273 ] 274 LEGAL INSTRUMENTS. part, his heirs and assigns, shall and may, at all times thereafter, peaceably and quietly have, hold, use, occupy, possess, and enjoy the above granted premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the said parties of the first part, their heirs or assigns, or of any other person or persons lawfully claim- ing or to claim the same, and that the same now are free, clear, discharged, and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances of what n-ature and kind soever (except as aforesaid). And also, that the said parties of the first part, and their heirs, and all and every other person or persons whatsoever, lawfully or equitably deriving any estate, right, title, or interest of, in, or to the hereinbefore granted premises, by, from, under, or in trust for them, shall and will, at any time or times hereafter, upon the rea- sonable request, and at the proper costs and charges in law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause or procure to be made, done, and executed, all and every such further and other lawful and reasonable acts, convey- ances, and assurances in the law, for the better and more effectually vesting and confii-ming the premises hereby intended to be granted in and to the said party of the second part, his heirs or assigns, or his counsel learned in the law, shall be reasonably devised, advised, or required. And the said and his heirs, the above described and hereby granted and released premises, and every part and parcel thereof, with the appurtenances, unto the said party of the second .part, his heirs and assigns, against the said parties of the first part, their heirs, and against all and every person or persons whomsoever, law- fully claiming or to claim the same, shall and will warrant and by these presents forever defend. In witness whereof, the said parties of the first part have here- unto set their hands and seals, the day and year first above written. [Seal.] [Seal] Sealed and delivered in the presence of . [This is the form of deed generally used in New York, New Jersey and Pennsylvania, and nearly all the Eastern States. This is the highest and most satisfactory form of conveyance. It gives the greatest assurance to the grantee, as it contains full covenants, which, on examination, may be divided into those present and those for the future. First, there are three referring to the present, that is (1) a covenant as to title ; (2) as to power to convey ; (3) as to incumbrances. And as to the future, there are covenants: (1) for quiet enjoyment; (2) as to defending title against the acts of others; and (3) as to the grantor's own acts. In some of our States, the forms of conveyances are much simplified by statute, as will appear from those afterward given.] LEGAL INSTRUMENTS. 275 161. Form of deed prescribed by Civil Code in California. I, A B, grant to C D all that real property situated in [insert name of county'] County, State of California, bounded [or described] as follows : [here insert description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as, for instance, " The Norris Ranch"] Witness my hand this [insert day~\ day of , [insert month] 18 . A B . [It will be observed that this form omits the recital of a consid- eration ; but such a recital is unnecessary under the law of Cali- fornia, as it is provided that the writing imports of itself a consid- eration. Though this form is prescribed by statute, it is not in general use, because it contains no warranties, and the practice is, on most occasions, to use the longer forms.] 162. Warranty deed, Calif ornia form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , between , of , the party of the first part, and , of , the party oi the second part, Witnesseth : That the said party of the first part, for and in consideration of the sum of dollars of the United States of America, to him in hand paid by the said party of the second part, -the receipt whereof is hereby acknowledged, does . by these presents grant, bargain, sell, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, [here give description of property]. Together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof. To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said party of the second part, and to his heirs' and assigns forever. And the said party of the first part, and his heirs, the said prem- ises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against the said party of the first part, and his heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant, and by these presents ever defend. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. .. [Seal] Signed, sealed, and delivered in the presence of . 163. Warranty deed, Illinois form. This indenture, made this day of , in the year of our Lord one thousand eight hundred and seventy , between . 276 LEGAL INSTRUMENTS. 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 consideration of the sum of dollars, in hand paid by the said party of the second part, the re- ceipt whereof is hereby acknowledged, and the said party of the second part forever released and discharged therefrom, has bar- gained, sold, remised, released, conveyed, aliened, and confirmed, and by these presents dees grant, bargain, sell, remise, release, con- vey, alien, and confirm, unto the said party of the second part, and to his heirs and assigns forever, all the following described lot, piece, or parcel of laud, situated in the county of and State of , and known and described as follows, to wit : [here give a description of the property'] together with all and singular the hereditaments and appurtenances thereunto belonging, or in any- wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof ; 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, his heirs and assigns forever ; and the said party of the first part for his heirs, executors, and administrators, does covenant, grant, bargain, and agree, to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents, he was well seized of the premises above conveyed, as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in law, in fee-simple, and has good right, full power, and lawful au- thority 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 in- cumbrances, of what kind and nature soever. And the above bar- gained premises in the quiet and peaceable possession of the said party of the second part, his heirs 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 war- rant and forever defend. And the said party of the first part hereby expressly waives and releases any and all right, benefit, privilege, advantage, and exemption, under or by virtue of any and nil 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 has hereunto set his hand and seal the day and year first above written. . [Seal] Signed, sealed, and delivered in the presence of . LEGAL INSTRUMENTS. 277 164. Warranty deed in Illinois, Statutory form. The grantor, , of the , iu the county of and State of , for and in consideration of dollars in hand paid, con- veys and warrants to , of the , county of and State of , the following described real estate, to wit: [here give a description of the property^ situated in the county of , in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this State. Dated this day of , A. D. 18 . . [Seal.] Signed, sealed,-and delivered in presence of . 165. Kansas warranty deed. Know all men by these presents, that , in consideration of dollars to him paid by , the receipt whereof is hereby ac- knowledged, does hereby grant, bargain, sell, and convey to the said , his heirs and assigns forever, [here give a description of the property] and all the estate, title, and interest of the said , either in law or in equity, of, in, and to the said premises, together with all the privileges and appurtenances to the same belonging, and all the rents, issues, and profits thereof. To have and to hold the same to the only proper use of the said , his heirs and as- signs forever. And the said , for himself and for his heirs, executors, and administrators, does hereby covenant with the said , his heirs and assigns, that he is the true and lawful owner of the said prem- ises, and has full power to convey the same ; and that the title so conveyed is clear, free, and unincuinbered ; and further, that he will warrant and defend the same against all claim or claims of all persons whomsoever. In witness whereof, the said has hereunto set his hand and seal, this day of , in the year of our Lord one thousand eight hundred and seventy . . [/Sea/.] Signed, executed, and acknowledged in presence of us, . 166. Kentucky warranty deed. Know all men by these presents, that , of , for and in consideration of dollars, to him paid by , of , the receipt whereof is hereby acknowledged, does hereby bargain, sell, and convey to the said , his heirs and assigns forever, the fol- lowing described real estate, to wit : [here give description of the' property] ; together with all the privileges and appurtenances to the same belonging. To have and to hold the same to the said , his heirs and assigns forever, the grantor, his heirs, executors, and administrators hereby covenanting with the grantee, his heirs and 278 LEGAL INSTRUMENTS. assigns, that the title so conveyed is clear, free, and unincumbercd, and that he will warrant and defend the same against all legal claims whatsoever. In witness whereof, the said has hereunto set his hand, this day of , in the year 187 . Teste : 167. Quitclaim deed in use in New YbrJc. This indenture, made the day of , in the year one thous- and eight hundred and seventy , between , of the city of New York, county of New York, and State of New York, party of the first part, and , of the city of Rochester, county of Monroe, and State of New York, party of the second part, Wit- nesseth : That the said party of the first part, for and in consider- ation of the sum of one dollar, lawful money of the United States of America, to him in hand paid by the said party of the second part, at or before the cnsealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath remised, released, and quitclaimed, and by these presents doth remise, release, and quitclaim unto the said party of the second part, and to his heirs and assigns forever, all that certain lot, piece, or parcel of land, [here insert full description] together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, re- mainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to the above described premises, and every part and parcel thereof, with the appurtenances. To have and to hold an and singular the above mentioned and described premises, ^together with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the**said party of the first part has hereunto set his hand and seal the day and year first above written. Sealed and delivered in the presence of . (The form of quitclaim in use in California is identical with this in New York.] 168. Illinois quitclaim deed^ statutory form. The grantor, , of the -, in the county of and State of , for the consideration of dollars, conveys and quit- claims to : , of the , county of and State of , all interest in the following described real estate : [here give description of property] ; situated in the county of in the LEGAL INSTRUMENTS. 279 State of Illinois, hereby releasing and waiving all Tights under and by virtue of the homestead exemption laws of this State. Dated this day of , A. D. 18 . . [Seal.] Signed, sealed, and delivered in presence of . 169. Quitclaim deed y Michigan form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , between ; , of the , party of the first part, and , of the , party of the second part, Witnesseth: That the said party of the first part, for and in consideration of the sum of dollars . to him in hand paid by the said party of the second part, the re- ceipt whereof is hereby confessed and acknowledged, does by these presents grant, bargain, sell, remise, release, and forever quit- claim unto the said party of the second part and to his heirs and assigns forever \here give description of property]. Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. To have and to hold the said premises to the said party of the second part, and to his heirs and assigns, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above written. . [Seal] Signed, sealed, and delivered in presence of . [There is not much variance in the forms of quitclaim deeds in use in our various States. Such a form of a deed is generally given when a person relinquishes some claim or title to property, and when he gives up a right which he holds in common with others. In these cases, it is the simplest and most direct method to release his interest and title, as well as convey that interest. This form of deed has long been in use in this countrv. Washburne, Heal Prop. Vol. 3, p. 3uy. The operative words of release in a simple quitclaim deed are, "remise, release, and quitclaim"; but where the words "bargain, sell, and quitclaim " are employed, they operate, not merely to re- lease, but to transfer any interest which the grantor possesses at the execution of the deed. Touchard v. Crow, 20 Cal. 150. A grantee under a quitclaim deed can maintain ejectment under it, if his grantor could have done so. Sullivan v. Davis, 4 Cal. 291 ; Carpentier v. Williamson, 25 Cal. 168.] liO. Mortgage -form in use in New York. This indenture, made the day of , in the year one thous- and eight hundred and seventy , between A B and C D, his wife, 280 LEGAL INSTRUMENTS. of the city, county, and State of New York, parties of the first part, and M N, of the , of , county of , and State aforesaid, party of the second part : Whereas, the said A B is justly indebted to the said party of the second part in the sum of five thousand dollars, lawful money of the United States of America, secured to be paid by his certain bond or obligation, bearing even date with these presents, in the penal sum of ten thousand dollars, lawful money as aforesaid, conditioned for the payment of the said first mentioned sum of five thousand dollars, on the first day of July, in the year one thousand eight hundred and seventy-seven, with interest thereon at and after the rate of seven per cent, per annum, payable semi-aunually on the first days of January and July, in each and every year, which said bond also contains an agree- ment that should any default be made in the payment of the said interest or any part thereof, on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, that then and from thenceforth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of five thousand dollars, with all arrear- age of interest thereon, shall, at the option of the said party of the second part, or his legal representatives, become and be due and payable immediately thereafter, although the time limited for the payment thereof may not then have expired, anything in the said bond contained to the contrary thereof in anywise notwithstanding : as by the said bond or obligation, and the condition thereof, and the said agreement therein contained, reference being thereto had may more fully appear. Now this indenture Witnesseth : That the said parties of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, according to the true intent and meaning thereof, and also for and in consideration of the sum of one dollar, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby -acknowledged, have granted, bargained, sold, aliened, released, conveyed, and confirmed, and by these pres- ents do grant, bargain, sell, alien, release, convey, and confirm unto the said party of the second part, and to his heirs and assigns for- ever, all [here insert full description ; and if the mortgage is given to secure part of the pur chase-money , add at the end of this clause : Being the same premises conveyed to the said party of the first part by the said party of the second part, by deed bearing even date herewith, and this mortgage is given to secure part of the con- sideration or purchase-money in such deed expressed.] Together with all and singular the tenements, hereditaments, and appurte- nances thereunto belonging, or in anywise appertaining, and the re- version and reversions, remainder and remainders, rents, issues, and profits thereof. And also, all the estate, right, title, interest, dower, right of dower, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in, and to the same, and every part and parcel thereof, with the appurtenances. To have and to hold the above granted LEGAL, INSTRUMENTS. 281 and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof forever. Provided always, and ( these presents are upon this express condition, that if the said par- 'ties of the first part, their heirs, executors, or administrators, shall well and truly pay unto the said party of the second part, his ex- ecutors, administrators, or assigns, the said sum of money men- tioned in the condition of the said bond or obligation, and the in- terest thereon, at the time and in the manner mentioned in the said condition, according to the true intent and meaning thereof, that then these presents, and the estate hereby granted, shall cease, de- termine, and be void. And the said A B, for himself, his heirs, ex- ecutors, and administrators, doth covenant and agree to pay unto the said party of the second part, his executors, administrators, or assigns, the said sum of money and interest, as mentioned above, and expressed in the condition of the said bond. And if default shall be made in the payment of the said sum of money above men- tioned, or the interest that may grow due thereon, or of any part thereof, that then and from thenceforth it shall be lawful for the said party of the second : part, his executors, administrators, or as- signs, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said parties of the first part, their heirs, executors, administrators, or assigns therein, at public auction, according to the act in such case made and pro- vided. And as the attorney of the said parties of the first part, for that purpose by these presents duly authorized, constituted, and ap- pointed to make and deliver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in the law for the same, in fee-simple, and out of the money arising from such sale to retain the principle and interest which shall then be due on the said bond or obligation, together with the costs and charges of ad- vertisement and sale of the said premises, rendering the overplus of the purchase-money [if any there shall be] unto the said A B, party of the first part, his heirs, executors, administrators, or as- signs, which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said parties of the first part, their heirs and assigns, and all other persons claiming or to claim the premises, or any part thereof, by, from, or under him, them, or either of them. [If an insurance clause is desired, insert the fol- lowing : And it is expressly agreed, by and between the parties hereto, that the said A B will keep the buildings, erected and to be erected upon the lands herein described, insured against loss and damage by fire, by insurers, in an amount of at least five thousand dollars, and assign the policy and renewals thereof to the said , and in default thereof, it shall be lawful for the said to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount secured by these presents, and payable on demand, with interest at the rate of seven per cent, per annum.] In witness whereof, the parties of the first part to these presents 282 LEGAL INSTRUMENTS. have hereunto set their hands and seals, the day and year first above written. A B . [Seal.'] C D . [&JOJ.J Sealed and delivered in the presence of . [In case the mortgage be given to secure part of the purchase- money of the premises, the wife of the mortgagor need not join in its execution, as her interest is secondary to that of a purchase- money mortgage.] 171. Mortgage in use in California. This indenture, made the day of , in the year, of our Lord one thousand eight hundred and seventy , between , party of the first part, and , the party of the second part, W itnesseth : That the said party of the first part, for and in consid- eration of the sum of dollars, of the United States of America, to him in hand paid, does by these presents grant, bargain, sell, convey, and confirm unto the said party of the second part, and to his heirs and assigns forever, all that certain piece or parcel of land situate in the , county of , State of , bounded and described as follows : , \_here give description ofpropert\j\ together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in anywise appertaining. This conveyance is intended as a mortgage to secure the payment of , and all these presents shall be void if such payment be made (according to the tenor and effect thereof). But in case de- fault be made in the payment of the principal or interest as provided, then the said party of the second part, his executors, ad- ministrators, and assigns, are hereby empowered to sell the said premises, with all and every of the appurtenances, or any part thereof, in the manner prescribed by law, and, out of the money arising from such sale, to retain the said principal and interest, together with the costs and charges of making such sale, and per cent, for attorney's fees, and the overplus, if any there be, shall be paid by the party making such sale, on demand, to the said party of the first part, his heirs or assigns. In witness whereof, the said party of the first part hath hereunto set his hand and seal, the day and year first above written. . [Seal] . [Seal.} Signed, sealed, and delivered in the presence of . 172. Mortgage, Illinois form. This indenture, made this day of , in the year of our Lord one thousand eight hundred and seventy , between . LEGAL INSTRUMENTS. 283 of the , party of the first part, and , of the , party of the second part, Witnesseth : That whereas the said is justly indebted unto the party of the second part in the sum of dol- lars, and, as evidence of which, the said has executed and de- livered to the said party of the second part, certain promissory notes, bearing even date herewith, payable to the order of the said party of the second part, as follows, to wit : \here give amount and description of notes or other security"]. And whereas, the said party of the first part, in consideration of the premises, and for the purposes aforesaid, and in further consideration of one dollar, to him in hand paid, does hereby grant, bargain, sell, and convey, unto the said party of the second part, his heirs and assigns, all the fol- lowing described lands and premises, situated in the , county of , and State of Illinois, to wit : \Jiere give a full description of the property}. To have and to hold the same, together with all and singular the tenements, hereditaments, privileges, and appurte- nances thereto belonging, to the said party of the second part, his heirs and assigns, to their sole use and benefit forever. Pro- vided always, and these presents are upon this express condition, that if the party of the first part, his heirs, executors, admin- istrators, or assigns, shall well and truly pay or cause to be paid to the party of the second part, his heirs, executors, administrators, or assigns, the promissory notes, interest, and moneys herein secured to be paid, at the time and in the manner specified in said promis- sory notes, and in the covenants herein contained, according to the true intent and meaning thereof, then, and in that case, these pres- ents shall be and become absolutely null and void. But it is further provided and agreed, that if default shall be made in the payment of either of the indebtedness or moneys afore- said, secured by this instrument, whether for principal or interest, on the day on which the same, or either thereof, shall become due and payable, then this mortgage may thereupon, at any time, be foreclosed, for the payment or satisfaction of the whole of the in- debtedness and moneys aforesaid; and said foreclosure may be either by judicial proceedings, or the party of the second part, his heirs, executors, administrators, or assigns, either in person or by his or their attorney, may sell and dispose of the said premises, and all the right, title, benefit, and equity of redemption of said party of the first part, his heirs or assigns therein, at public auction, at either door of any building which may be occupied as a court-house, in the city of , in the State of Illinois, or on said premises, as may be specified in the notice of such sale, for the highest and best price the same will bring in cash, at least days' public notice having been previously given of the time and place of such sale, by advertisement in one of the newspapers at that time published in said city of , and, either in person or by attorney, make, ex- ecute, and deliver, to the purchaser or purchasers at such sale, good and sufficient deed or deeds of conveyance for the premises sold ; and out of the proceeds or avails of such sale, and the purchase- money paid thereon, after paying all costs of such advertising and sale, including all moneys advanced for insurance, taxes, and assess- 284 LEGAL INSTRUMENTS. mcnts, or other liens, with the interest thereon, to pay the principal of said notes, whether due and payable by the terms thereof or not, and the interest due or accrued on said notes up to the time of such sale, rendering the overplus [if any] unto the said party of the first part, his legal representatives or assigns, on reasonable request ; and it shall not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase-money ; which sale or sales, so made, shall be a perpetual bar, both in law and equity, against the said party of the first part, his heirs and assigns, and all other persons claiming the premises aforesaid, or any part thereof, by, from, through, or under said party of the first part, or any of them. And in addition to the efficacy which such deed or deeds of con- veyance might otherwise have in evidence as a muniment or muni- ments of title, [and not limitation or restriction of such efficacy] such deed or deeds shall also, as against the party of the first part, his heirs and assigns, and in favor of the party of the second part, his heirs and assigns, or the grantee or grantees named in such deed or deeds, his or their heirs and assigns, when produced in any Court of Law or Equity, or elsewhere, be and be taken as good and sufficient prima facie evidence of the due and legal execution, in all respects, of the power of sale above granted, and of the due ob- servance of all preliminaries and conditions necessary to the validity of such sale, and of such deed or deeds, whether such observance thereof shall be in such deed or deeds especially or in detail recited or not ; and any and all recitals which shall be made in such deed or deeds, shall, in any Court of Law or Equity, or else- where, be and be held to be, as against the party of the first part, his heirs and assigns, good and sufficient prima facie evidence of the truth of the matters and things therein recited. The said party of the first part hereby covenants, declares, and agrees, that in case default shall be made in the payment of any or either of the indebtedness or moneys aforesaid, whether for principal or interest, or ot the taxes hereinafter mentioned, on the day on which the same, or either thereof, shall become due and payable, or in the procuring, assigning, and deposing of the poli- cies of insurance, as is hereinafter specified, then all and each of the moneys secured to be paid by this indenture shall, upon any such default, become immediately due and payable, anything here- in, or in said promissory notes contained, to the contrary notwith- standing. And the said party of the first part, for the purpose of enabling said party of the second part to make an advantageous and judi- cious sale of said premises, does hereby authorize and empower him to adjourn said sale from time to time, at the discretion of said party of the second part ; and also to sell said premises entire, with- out division, or in parcels, as the said party of the second part may think best. And the said , party of the first part, hereby expressly waives and releases any and all rights in respect to the above granted lands, to him secured by the statutes of the said State of Illinois relating to the alienation and exemption of homesteads. LEGAL INSTRUMENTS. 285 And the said , for himself and his heirs, exe'cutors, and ad- ministrators, covenants and agrees to and with the said party of the second part, and his heirs and assigns, that at the time of the en Dealing and delivery of these presents he was well seized of said j (remises in fee-simple, and has good right, full power, and lawful authority to grant, bargain, sell, and convey the same in manner and form as aforesaid ; that the same are free and clear of all liens and incumbrances whatsoever ; that the said party of the first part will, in due season, pay all taxes and assessments on said premises, and exhibit once a year, on demand, to said party of the second part, receipts of the proper persons, showing payment thereof, until the indebtedness aforesaid shall be fully paid ; and will keep sill buildings that may at any time be on said premises, during the continuance of said indebtedness, insured in such company or com- panies as the party of the second part, his heirs, executors, admin- istrators, and assigns, may direct, for such sum or sums as such company or companies will insure for, not to exceed the amount of dollars, and will assign, with proper consent of the insurers, the policy or policies of insurance to, and deposit the same with, said party of the second part, as further security for the indebted- ness aforesaid ; and in case said party of the first part shall fail so to keep said buildings insured, and to pay said taxes and assess- ments, then the party of the second part shall have full right, power, and authority to pay the same, and the amount so paid shall constitute a part of the debt secured by this instrument, and upon sale of the land hereunder, shall, with the amount of said notes and interest, be paid to the party of the second part, his heirs, ex- ecutors, administrators, and assigns, with interest thereon at the rate of per cent, per annum. A reconveyance of said premises shall be made to said party of the first part, his heirs or assigns, at his expense, on full payment of the indebtedness aforesaid, and full performance by them of the covenants and agreements herein made by the party of the first part. In witness whereof, the party of the first part has hereunto set his hand and seal, on the day and year first above written. . [Seal.] . [Seal'] Signed, sealed, and delivered in the presence of . 173. Mortgage with dower, Ohio form. Know all men by these presents, that , and , his wife, of the , in consideration of dollars, to them paid by of the , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell, and convey to the said , his heirs and assigns forever, , [here give full description of property] and all the estate, title, interest, of the said , either in law or equity, 286 LEGAL INSTRUMENTS. of, in, and to the said premises, together with all the privileges and appurtenances to the same belonging, and all the rents, issues, and profits thereof. To have and to hold the same to the only proper use of the said , his heirs and assigns forever. And the said , for himself and for his heirs, executors, and administrators, does hereby covenant with the said , his heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the same, and that the title so conveyed is clear, free, and unincumbered ; and fifrther, that he will warrant and defend the same against all claim or claims of all persons whomsoever. Provided, nevertheless, that the said shall perform fully the condition of his certain bond of even date herewith, given to the said , [or pay unto the said the amount of two certain promissory notes, dated , and respectively for the amount of dollars] then these presents shall be void. In witness whereof, the said , and the said , his wife, hereby releasing her right and expectancy of dower in the said premises, have hereunto set their hands and seals, this day of , in the year of our Lord one thousand eight hundred and seventy . . [/Sea?.] . [Seal] Signed, sealed, and acknowledged in presence of us, . 174. Mortgage, Michigan form. This indenture, made this day of , in the year of our Lord one thousand eight hundred and seventy , 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 sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, remised, released, enfeoffed, and confirmed, and by these presents does grant, bargain, sell, remise, release, enfeoff, and confirm unto the said party of the second part, and to his heirs and assigns f orever,_ all [here give full description of property} : together witli the here- ditaments and appurtenances thereunto belonging, or in anywise appertaining. To have and to hold the above bargained premises unto the said party of the second part, and to his heirs and as- signs, to the sole and only proper use, benefit, and behoof of the said party of the second part, his heirs and assigns, forever ; and the said party of the first part, for himself, and for his heirs, executors, and administrators, doth covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents he was well seized of said premises in fee-simple ; that they are free from all incumbrances and charges whatever, and that he will, and his heirs, executors, administrators, and assigns shall forever warrant LEGAL INSTRUMENTS. 287 and defend the same against all lawful claims whatsoever. Provided always, and these presents are upon the express condition, that if the said party of the first part shall, arid do, well and truly pay, or cause to be paid, to the said party of the second part the sum of five thousand dollars, lawful money of the United States, accord- ing to a certain bond, bearing even date herewith, executed by , the party of the first part, to said party of the second part, to which these presents are collateral : and shall also pay, or cause to be paid, all taxes and assessments, of whatever nature, which may be levied upon said premises above described, as soon and as often as the same may become due and payable. And the said first party doth hereby covenant and promise to and with said second party, his representatives and assigns, that he, the said first party, will pay to said second party the full sum of five thousand dollars, with interest as above provided. And it is also agreed, by and between the parties to these pres- ents, that the said party of the first part shall and will keep the buildings, erected and to be erected, upon the lands above con- voyed, insured against loss and damage by fire, by insurers, and in amount approved by the said party of the second part, and assign the policy and certificates thereof to the said party of the second part ; and in default thereof, it shall be lawful for the said party of the second part to effect such insurance, and the premium and premiums paid for effecting the same shall be a lien on the said mortgaged premises, added to the amount secured by these pres- ents, and payable on demand, with interest, at the rate of ten per cent per annum. And shall further keep and perform all covenants and agreements hereinafter made, then these presents and said bond shiJl cease and be null and void. And it is hereby expressly agreed, that should any default be made in the payment of the said interest, taxes, assessments, or in- surance, or any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, then and from thence- forth, that is to say, after the lapse of the said thirty days, the aforesaid principal sum of five thousand dollars, with all arrearage of interest thereon, and all taxes, assessments, and insurance unpaid, shall, at the option of said obligee, his executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding. And it is further expressly agreed, that as often as any proceeding is taken to foreclose this mortgage, as hereinafter provided, or in chancery, said first party shall pay to said second party dollars, as a reasonable attorney or solicitor's fee therefor, in addi- tion to all other legal costs. And upon default being made in any condition of this mortgage, or in case of the non-payment of the said sum of five thousand dollars, or of the interest thereof, or of said taxes, assessments, or insurance, or any part of said principal or interest, taxes, assess- 288 LEGAL INSTRUMENTS. ments, or insurance, or if the principal becomes due and payable, as aforesaid, by reason of the non-payment of interest, taxes, assess- ment, or insurance, at the time, in the manner, and at the place above limited and specified for the payment thereof, then and in such case it shall and may be lawful for the said party of the second part, his heirs, executors, administrators, or assigns, and the said party of the first part doth hereby empower and authorize the said party of the second part, his heirs, executors, administrators, or assigns, to grant, bargain, sell, release, and convey the said prem- ises, with the appurtenances, at public vendue, and on such sale to make and execute to the purchaser or purchasers, his, her, or their heirs and assigns forever, good, ample, and sufficient deed or deeds of conveyance in law, pursuant to the statute in such case made and provided, rendering the surplus moneys (if any there should be) to the said party of the first part, his heirs, executors, or admin- istrators, after deducting the amount then due, the said attorney or solicitor's fee, and the costs and charges of such vendue and sale aforesaid. In witness whereof, the party of the first hath hereunto set his hand and seal, the day and year first above written. . [Seal.] . [Seal] Signed, sealed, and delivered in presence of . 175. Mortgage, short form, for State of Indiana. This indenture witnesseth that , of County, in the State of , mortgages and warrants to , of County, in the State of , the following real estate in County, in the State of , to wit : \Jiere give description of property] to secure the payment, when it becomes due, of dollars, being the unpaid balance of the purchase-money for the above-described real estate ; and the mortgagor expressly agrees to pay the sum of money above secured without relief from valuation or appraisement laws. In witness whereof, the mortgagor hath hereunto set his hand and seal, this day of , 187 . . [Seal.] 176. Assignment of mortgage New York form. Know all men by these presents, that I, , of the city of , county of , and State of New York, party of the first part, in consideration of the sum of five thousand dollars, lawful money of the United States, to me in hand paid by , of the city of , county of , and State of New York, party of the second part, at or before the ensealing of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, LEGAL INSTRUMENTS. 289 sell, assign, transfer, and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the first day of March, one thousand eight hundred and seventy-five, made by and , his wife, of the city of New York, to me, to secure the payment of five thousand dollars and interest, and which said mortgage was recorded in the office of the register of the city and county of New York, on March 2d, 1875, in liber 100 of mort- gages, at page 100, [if there have been previous assignments, recite names, dates, and records] together with the bond or obligation therein described, and the money due and to grow due thereon, with the interest. To have and to hold the same, unto the said party of the second part, his executors, administrators, and assigns, forever, subject only to the proviso in the said indenture of mort- gage mentioned, and I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney, irrevo- cable in my name, or otherwise, but at his proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment, to dis- charge the same as fully as I might or could do if these presents were not made. In witness whereof, I, the said party of the first part, have here- unto set my hand and seal this first day of July, one thousand eight hundred and seventy . In the presence of . 117. Assignment of mortgage California form. Know all men by these presents, that , of the , county of , State of California, the party of the first part, in consid- eration of the sum of dollars, lawful money of the United States of America, to him in hand paid by , of , the party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, assign, transfer, and set over, unto the said party of the second part, a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and seventy , made and executed by and , his wife, to the said party of the first part, and recorded in the of- lice of the County Recorder of County, State of California, iu book of mortgages, page , on the day of , A. r>. 187 , at o'clock, in the noon ; together with the promissory note [or bond] therein described, and the money due arid to grow due thereon, with the interest. To have and to hold the same unto the said party of the second part, his executors, ad- ministrators, and assigns, for their use and benefit ; subject only to the proviso in the said indenture of mortgage mentioned. And the said party of the first part does hereby make, constitute, and ap- point the said party of the second part his true and lawful attor- ney, irrevocable in his name or otherwise, but at the proper costs and charges of the said party of the second part, to have, use, and NOTARIES 19. 290 LEGAL INSTRUMENTS. take all lawful ways and means for the recovery of the said money and interest; and in case of payment, to discharge the same as fully as the said party of the first part might or could do if these presents were not made. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day of , in the year of our Lord one thousand eight hundred and seventy . . [Seal] Signed, sealed, and delivered in the presence of . 178. Assignment of mortgage Illinois form. Know all men by these presents, that , party of the first part, in consideration of the sum of dollars, lawful money of the United States, to him in hand paid by , party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred and set over, and by these presents does grant, bargain, sell, assign, transfer, and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and seventy , made by , and recorded in the office of the county of , in liber of mortgages, at page ; together with the bond [or note] therein described, and the money due and to grow due thereon, with the interest. To have and to hold the same unto the said party of the second part, his heirs and assigns, for- ever ; subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby make, constitute, and appoint the said party of the second part my true and lawful attorney, irrevoc- ably, in my name or otherwise, but at his proper costs and charges, to have, use, and take all lawful ways and means for the recovery of the said money and interest ; and in case of payment, to dis- charge the same as fully as I might or could do if these presents were not made. [If a covenant as to the amount due on said mort- gage is required, it may be inserted here.] In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and seventy . . [Seal.'] Signed, sealed, and delivered in the presence of . 179. Release of part of mortgaged premises. This indenture, made this day of , in the year one thousand eight hundred and seventy , between , party of the first part, and , party of the second part: Whereas, , by indenture of mortgage bearing date the day of , one thousand eight hundred and seventy , for the consideration LEGAL INSTRUMENTS. 291 therein mentioned, and to secure the payment of the* money therein specified, did convey certain lands and tenements, of which the lands hereinafter described are part, unto , party hereto of the first part, which said mortgage was recorded in the office of the clerk [or recorder] of the county of , on the day of ^ , 187 , in book of mortgages, at page . And whereas, the said party of the first part, at the request of the said party of the second part, has agreed to give up and surrender the lands here- inafter described unto the said party of the second part, and to hold and retain the residue of the said mortgaged lands as security for the money remaining due on the said mortgage, now this inden- ture Witnesseth : That the said party of the first part, in pursuance of said agreement, and in consideration of one dollar to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, released, quitclaimed, and set over, and by these presents doth grant, release, quitclaim, and set over unto the said party of the second part, all that part of the said mortgaged land bounded and described as follows : [here insert description of released premises] together with the hereditaments and appurtenances thereunto belonging ; and all the right, title, and interest of the said party of the first part, of, in, and to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as heretofore. To have and to hold the land and premises hereby released and conveyed, to the said party of the second part, his heirs and assigns, to his and their only proper use, benefit, and behoof, forever, free, clear, and discharged from all lien and claim, under and by the virtue of the indenture of mortgage aforesaid. In witness whereof, the party of the first part hath hereunto set his hand and seal, the day and year above written. . [Seal.'] Sealed and delivered in the presence of . 180. Satisfaction of mortgage, New York form. STATE OF NEW YOEK, ) County of New York, ) I, , of the city, county, and State of New York, do hereby certify that a certain indenture of mortgage, bearing date the day of , in the year one thousand eight hundred and seventy , made and executed by and , his wife, to me, to secure the payment of dollars and interest, and recorded in the office of the register of the county of New York, in liber of mortgages, page , on the day of , in the year one thousand eight hundred and seventy , at o'clock in the 292 , LEGAL INSTRUMENTS. noon, is paid, and I -do hereby consent that the same be dis- charged of record. , Dated the day of , 187 Signed and delivered in the , presence of . [An acknowledgment should be added. This form may be used for the satisfaction of a chattel mortgage, by using the word "filed," instead of J' recorded," and giving the date of tiling.] 181. /Satisfaction of mortgage, California form. Know all menNby these presents," that I, , do hereby certify and declare that a certain mortgage, bearing date the day of , 187 ,-made and executed by , the party of the first part therein, to , the party of the second part therein, and , recorded in the office- of the county recorder of the , county of -, in book of mortgages, on page , on the day of , 187 , together with the debt thereby secured, is fully paid, satisfied, and discharged. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and seventy . . [Seal.~\ . \_Seal.~] Signed, sealed, and delivered in the presence of . [Add acknowledgment.] 182. Satisfaction of mortgage, general form. Know all men by these presents, that I, , of the , of , and State of , do hereby certify that a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and seventy , made and executed by , party of the first part, to , of the second part, and recorded in the office of the clerk [or recorder] for the county of , in liber of mort- gages, page , on the day of , one thousand eight hundred and seventy , is fully paid, satisfied, and discharged. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and seventy . . [Seal.} Signed, sealed, and delivered in the presence of . [Add proper acknowledgment.] LEGAL INSTRUMENTS. 293 183. Chattel mortgage with danger clause. To all to whom these presents shall come : Know ye that I, ,, of the , county of , and State of , party of the first part, for the securing the payment of the -money hereinafter men- tioned, and in consideration of the sum of one dollar to me duly paid by , of the same place, party of the second part, at or before the enseoling and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant, bargain, and sell unto the said party of the second part, [here describe the goods'] now in the premises No. , Street, in the city of , to have and to hold, all and singu- lar the goods and chattels above bargained and sold, or intended so to be, unto the said party of the second part, his executors, admin- istrators, and assigns forever. And I, the said\ party of the first part, for myself, my heirs, executors, and administrators, all .and singular the said goods and chattels above bargained and sold unto the said party of the second part, his heirs, executors, administra- tors, and assigns, against me, the said party of the first part, and against all and every person or persons whomsoever, shall and will warrant, and forever defend. Upon condition that if I, the said party of the first part, shall and do well and truly pay unto the said party of the second part, his executors, administrators, or as- signs, the sum of one thousand dollars, with interest thereon from , ,^on or before the day of , 187 j , [or on de- mand] then these presents shall be void. And I, the said party of the first part, for myself, my executors, administrators, and assigns, do covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, that in case default shall be made in the payment of the said sum above mentioned, or should said goods be sold or removed, or levied upon by execution or attachment, that it shall and may be lawful for, and I, the said party of the first part, do hereby authorize and empower the said party of the second part, his executors, administrators, and assigns, with the aid and assistance of any person or persons, to enter my dwelling-house, store, and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods or chattels, and to sell and dispose of the same for the best price they can obtain ; and out of the money arising therefrom to retain and pay the said sum above mentioned, and all charges touching the same ; rendering the over- plus [if any] unto me or to my executors, administrators, or as- signs. And until default be made in the payment of the said sum of money, or said goods be sold, removed, or levied upon, I am to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. In witness whereof, I, the said party of the first part, have here- unto set my hand and seal the day of , one thousand eight hundred and seventy . . [/Seal.] Signed, sealed, and delivered in the presence of . 294 LEGAL INSTRUMENTS. [This form is adapted for and in use generally in the Eastern States.] 184. Chattel mortgage^ California form. This mortgage, made the - day of - , in the year A. D. eighteen hundred and seventy - , by - , of the - , county of - , State of - x by occupation - , mortgagor to - , of the - , county of - , State of - , by occupation - , mort- gagee - , Witnesseth : That said mortgagor mortgages to the said mortgagee all thut certain personal property situated and described us follows, to wit : [here give a schedule or statement of the prop- erty'} as security for the payment to him, the said mortgagee, of - dollars, -- of the United States of America, on -- day of - , in the year of our Lord eighteen hundred and seventy -- , with interest thereon at the rate of - per cent, per - , accord- ing to the terms and conditions of a certain promissory note, of even date herewith, and in the words and figures following, to wit : -- . -- . [Seal.] -- . [Seal.\ Signed and executed in the presence of -- . STATE OF CALIFORNIA, ss. County of , the mortgagor in the foregoing mortgage named, and the mortgagee in said mortgage named, being duly sworn, each for himself, doth depose and say : That the aforesaid mortgage is made in good faith, and without any design to hinder, delay, or defraud creditor or creditors. . Subscribed and sworn, to this day of , A. D. 187 , at the , county of , before me, . [By the Civil Code of California, Sec. 2957, a mortgage of per- sonal property is void as against creditors of the mortgagor, and subsequent purchasers and iucumbrancers of the property, in good faith and for value, unless: 1. It is accompanied by the affidavit of all the parties thereto, that it is made in good faith, and without any design to hinder, delay, or defraud creditors ; "2. Unless it is acknowledged or proved, certified and recorded in like manner as grants of real property. By Sec. 2955, Civil Code, chattel mort- gages may be made upon : First, Locomotives, engines, and other rolling stock of a railroad; Second, Steamboat machinery, the machinery used by machinists, foundry-men, and mechanics ; Third, Steam-engines and boilers; Fourth, Mining machinery; Fifth, Printing-presses and material; Sixth, Professional libraries; Seventh, Instruments of a surgeon, physician,*or dentist ; Eighth, Upholstery and furnifure used in hotels, lodging or boarding- houses, when mortgaged to secure the purchase -money of the arti- LEGAL INSTRUMENTS. 295 cles mortgaged ; Ninth, Growing crops ; Tenth, Vessels of more than five tons burden ; Eleventh, Instruments, negatives, furniture, and fixtures of a photograph gallery.] 185. Chattel mortgage, Ohio form. Know all men by these presents, that , of , in consider- ation of one dollar, to him in hand paid, by , of the , the receipt of which is hereby acknowledged, doth hereby bargain, sell, and convey to the said , and his assigns, the goods and chattels described in the schedule hereto annexed ; to have and to hold the same, to the use of the said , his executors, administrators, and assigns. And said mortgagor covenants that he will insure the said property for not less than dollars, and keep the. same insured during the continuance of this mortgage, and if he neg- lect or fail so to do, then the mortgagee may insure the same at the expense of the mortgagor; and in case of loss, if any, payment shall be made to the mortgagee, for the use and purpose herein mentioned. Provided, nevertheless, that if the said shall pay unto the said the sum of dollars, on the day of , 187 , [or pay the amount of a certain note, executed by the said , for ; or perform any other condition] then this conveyance shall be void; otherwise, to be and remain in full force. The said mortgagor hereby covenants, that on default of payment, or any sale, or attempt to sell, said goods or chattels, or any part of them, or to remove them, or any part of them, from the county, or from their location, or upon any seizure of them, or any part of them, by any process of law, or upon any failure to comply with the said provisions as to insurance, then the said mortgagee or his assigns may take them into his possession. In witness whereof, the said has hereunto set his hand and seal, this day of , in the year of our Lord one thousand eight hundred and seventy -. . [SealJ] Signed, sealed, and acknowledged in presence of us : . [By the laws of Ohio, Act April llth, 1863, a statement of the debt or claim for which the mortgage is given to- secure, must be made and sworn to, and appended, as follows :J STATE OP OHIO,") County of , j Kl , mortgagee, named in this mortgage, being duly sworn, makes oath and says : That his claim against , the mortgagor, of which a true statement is hereunto annexed, amounts to the sum of , and that said claim is just and unpaid. . Sworn to and subscribed before me, a in and for said county, this day of , 187 296 LEGAL INSTKUMENTS. 1E.6. Chattel mortgage, Illinois form. Know all men by these presents, that I, , of the town of -, in the county of and State of Illinois, in consideration of dollars, to me paid by , of the county of and State of the receipt whereof is hereby acknowledged, do hereby grant, bargain, and sell, unto the said , and to his heirs and assigns forevei', the following goods and chattels, to wit : [he-re give a schedule or statement}. To have and to hold, all and singular, the said goods and chattels, unto the said mortgagee herein, and his heirs and assigns, to their sole use and behoof, forever. And the mortgagor herein, for himself and for his heirs, executors, and ad- ministrators, does hereby covenant, to and with the said mortgagee, and his heirs and assigns, that said mortgagor is lawfully possessed of the said goods and chattels, as of his own property; that the same are free from all incumbrances, and that he will warrant and defend the same to , the said mortgagee, and to his heirs and assigns, against the lawful claims and demands of all persons. Provided, nevertheless, that if the said mortgagor shall pay unto the said mortgagee the sum of dollars, on the day , 187 , [or perform any other condition] then this mortgage to be void, otherwise to remain in full force and effect. And provided further, that until default be made by the said mortgagor, in the performance of the condition aforesaid, it shall and may be lawful for him to retain the possession of the said goods and chattels, and to use and enjoy the same ; but if the same, or any part thereof, shall be attached or claimed by any other person or persons, at any time before payment, or the said mortgagor, or any person or persons whatever, upon any pretense, shall attempt to carry off, conceal, make way with, sell, or in any manner dispose of the same, or any part thereof, without the authority and per- mission of the said mortgagee, or his heirs, executors, adminis- trators, or assigns, in writing expressed, then it shall and may be lawful for the said mortgagee, with or without assistance, or his agent or attorney, or heirs, executors, or administrators, to take pos- session of said goods and chattels, by entering upon any premises wherever the same may be, whether in this county or State, or else- where, to and for the use of said mortgagee, his heirs or assigns. And if the moneys hereby secured, or the matters to be done or performed, as above specified, are not duly paid, done, or performed at the time and according to the conditions above set forth, then the said mortgagee, or his attorney or agent, or his heirs, executors, administrators, or assigns, may by virtue hereof, and without any suit or process, immediately enter and take possession of said goods and chattels, and sell and dispose of the same at public or private sale ; and after satisfying the amount due and all expenses, the surplus, if any remain, shall be paid over to said mortgagor, or his heirs or assigns. The exhibition of this mortgage shall be sufficient proof that any person claiming to act for the mortgagee is duly made, constituted, and appointed agent and attorney to do whatever is above authorized. LEGAL INSTRUMENTS. 297 In witness whereof, the said mortgagor has hereunto set his hand and seal, this day of , in the year of our Lord one thousand eight hundred and . . [Seal.] . [Seal} Signed, sealed, and delivered in presence of . 187. Lease, general form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , between , of the , party of the first part, and , of the , party of the second pai't, Witnesseth : That the said party of the first part, for and in consideration of the rents, covenants, and agree- ments hereinafter mentioned and obtained on the part of the said party of the second part, his executors, administrators, and assigns, to be j >aid, observed, and performed, hath demised and leased, and by these presents doth demise and lease, unto the said party of the second part, his executors, administrators, and assigns, , [here give description of the leased property] together with all and sin- gular the benefits, liberties, and privileges to the said premises belonging. To have and to hold the said demised premises, with the appurtenances, unto the said party of the second part, his ex- ecutors, administrators, and assigns, for and during and until the full end and term of , next ensuing the day of ; , fully to be complete and ended ; yielding and paying therefor during the continuance of the lease unto the said party of the first part, his heirs and assigns. [Here state terms of rental, time of pay- ments^ etc.] And the said party of the second part, for his exec- utors, administrators, and assigns, doth covenant well and truly to pay, or cause to be paid, unto the said party of the first part, his heirs and assigns, at the days and times above mentioned, the rent above reserved. And at the end of the said term shall and will peaceably and quietly leave, surrender, and yield up the said premises unto the said party of the first part, his heirs and assigns ; provided always, and these presents are upon the express condition, that if it shall so happen that the rent above reserved, or any part thereof, be behind or unpaid at the times or on the days above mentioned for the payment thereof, or in case of the non-perform- ance of any of the covenants made by the said party of the second part, at any of the times mentioned for the performance thereof, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs and assigns, into the said demised premises, , or any part, in the name of the whole, to re-enter, and the same to have again, retain, re-possess, and enjoy, and the said party of the second part, his heirs, executors, administrators, or assigns, and all others, tenants or occupiers of the said premises hereby demised, or any part thereof, thereout, or therefrom, utterly to expel, put out, and remove; and from and after such re-entry made, this lease, and every part thereof, shall cease, and be abso- lutely void, as it respects the covenants to be performed by the 298 LEGAL INSTRUMENTS. said party of the first part. And the said party of the first part, for his heirs and assigns, doth hereby covenant and agree to and with the said party of the second part, his heirs, executors, admin- istrators, or assigns, paying the rent above reserved in manner aforesaid, and observing, keeping, and performing all and singular the covenants and agreements hereinbefore mentioned on his and their parts to be kept and performed, shall and may peaceably and quietly have, hold, occupy, possess, and enjoy the said demised premises, with the appurtenances, for and dui-ing the said term, without, any lawful let, quit, hindrance, or molestation to the said party of the first part, his heirs and assigns, or any other person or persons claiming or to claim by, from, or under him or them, or any other person or persons having or lawfully claiming any right in the said premises. In witness whereof, the parties hereunto have interchangeably set their hands and seals, the day and year first above written. . [Seal.'} . [Seal.] Signed, sealed, and delivered in presence of . 188. Form of bill of sale. Know all men by these presents, that , of the , State of California, the party of the first part, for and in consideration of the sum of dollars, of the United States of America, to him in hand paid by , the party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, and convey unto the said party of the second part, his executors, administrators, and assigns, , to have and to hold the same to the said party of the second part, his executors, administrators, and assigns forever. And he does, for his heirs, executors, and administrators, covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels hereby made unto the said party of the second part, his executors, administrators, and assigns, against all and every person and persons whomsoever. In witness whereof, has hereunto set his hand and seal, the day of , in the year of our Lord one thousand eight hundred and seventy . . [Seal.] Sealed and delivered in the presence of . 139. Form of bill of sale of personal property, Illinois form. Know all men by these presents, that , of , State of Illinois, in consideration of -, paid by , the receipt whereof is hereby acknowledged, does hereby bargain, sell, and deliver unto the said LEGAL INSTRUMENTS. 299 , to have and to hold the said goods and chattels unto the said , his executors, administrators, and assigns, to own proper use and benefit forever. And , the said , does avouch himself to be the true and lawful owner of said goods and chattels ; that he has full power, good right, and lawful authority to dispose of said goods and chattels, in manner as aforesaid ; and that he will, and his heirs, executors, and administrators shall, war- rant and defend the said bargained premises unto the said , executors, administrators, and assigns, from and against the lawful claims and demands of all persons. In witness whereof, , the said , hath hereto set his hand and seal this day of , in the year of our Lord eighteen bundred and . . [Seal.] Executed and delivered in presence . [/SeaZ.J of 190. Form of special power of attorney. Know all men by these presents, that have made, consti- tuted, and appointed, and by these presents do make, constitute, and appoint, , my true and lawful attorney, for myself and in my name, place, and stead ; giving and granting unto , my said at- torney, full pow%r and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or c6uld do if personally present, with full power of substitution and . revocation, hereby ratifying and confirming all that my said attor- ney or his substitute shall lawfully do or cause to be done by vir- tue of these presents. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and seventy . Signed, sealed, and delivered in the ' . \_Seal.~\ presence of . . 191. Form of general power of attorney. Know all men by these presents, that I have made, constituted, and appointed, and by these presents do make, constitute, and appoint, , true and lawful attorney, for me and in my name, place, and stead, and for my use and benefit, to ask, demand, sue for, recover, collect, and receive all such sums of money, debts, dues, accounts, legacies, bequests, interests, dividends, annuities, and demands whatsoever, as are now or shall hereafter become due, owing, payable, or belonging to me, and have, use, and take all lawful ways and means, in my name or otherwise, for the recovery thereof, by attachments, arrests, distress, or otherwise, and to com- promise and agree for the same, and acquittances or other sufficient discharges for the same, for me and in my name, to make, seal, and deliver; to bargain, contract, agree for, purchase, receive, and take lauds, tenements, hereditaments, and accept the seizin and 300 LEGAL INSTRUMENTS. possession of all lands, and all deeds and other assurances, in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements, and heredita- ments upon such terms and conditions, and under such covenants, as shall think fit. Also, to bargain and agree for, buy, sell, mortgage, hypothecate, and in any and every way and manner deal in and with goods, wares, and merchandise, choses in action, and other property in possession or in action, and to make, do, and transact all and every kind of business of what nature and kind soever, and also for me and in my name, and as my act and deed, to sign, seal, execute, deliver, and acknowledge such deeds, leases and assignment of leases, covenants, indentures, agreements, mortgages, hypothecations, bottomries, charter parties, bills of lading, bills, bonds, notes, receipts, evidences of debt, releases and satisfaction of mortgage, judgment and other debts, and such other instruments in writing, of whatever kind and nature, as may be necessary or proper in the premises. Giving and granting unto , said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, I hereby ratifying and confirming all that , said attorney , sha],l lawfully do or cause to be done by virtue of these presents. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and seventy . Signed, sealed, and delivered in the . [/Seal.'] presence of ; . 192. Agreement^ California form. This agreement, made the day of , in the year of our Lord one thousand eight hundred and seventy , between , of , the party of the first part, and , of , the party of the second part, Witnesseth: That the said party of the first part, in consideration of the covenants, promises, and agree- ments on the part of the said party of the second part, hereinafter contained, hereby covenants, promises, and agrees to and with the said party of the second part, that the said party of the first part will . And the said party of the second part, in considera- tion of the said covenants, promises, and agreements on the part of the said party of the first part, hereinbefore contained, cove- nants, promises, and agrees to and with the said party of the first part, that the said party of the second part will . And for the true and faithful performance of all and every of the said cov- enants, promises, and agreements, the said parties to these presents bind themselves, each unto the other, in the penal sum of dollars, of the United States of America, as fixed, settled, and liquidated damages, to be paid by the failing party to the other, bis heirs or assigns. LEGAL INSTRUMENTS. 301 In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. . [SeaLl . [Seal] Signed, sealed, and delivered in the presence of . 193. Bond for a deed, California form. Know all men by these presents, that - are held and firmly bound unto , in the sum of dollars, of the United States of America, to be paid to the said ,,executors, adminis- trators, or assigns ; for which payment well and truly to be made bind heirs, executors, and administrators, firmly by these presents. Sealed with seal, and dated the day of , A. D. one thousand eight hundred and seventy . The con- dition of the above obligation is such, that if the above bounden obligor shall, on , the day of , A. D. one thousand eight hundred and seventy , make, execute, and deliver unto the said , (provided that the said s.hall, on or before that day, have paid the said obligor the sum of dollars, the price by said agreed to be paid therefor) a good and sufficient con- veyance of all that certain lot, piece, or parcel of land situ- ate, lying, and being in the , county of and State of , and bounded and particularly described as follows, to wit : . Then this obligation to be void, otherwise to remain in full force and virtue. . \Seal.~\ . [Seal.'} Signed, sealed, and delivered in the presence of . 194. Bond for a deed, Illinois form. Know all men by these presents, that , of , in the county of and State of Illinois, is held and firmly bound unto , of , in the county of and State of , in the penal sum of dollars, for the payment of which sum, well and truly to be made to Lim, his heirs, executors, and administrators, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal and dated this day of , 18 . The condition of the above obligation is such, that whereas, the said this day has given the said promissory note of even date herewith, ' . Now if, on payment of the said note being made on or before the time - ^ shall become due, and all taxes on the land hereinafter described having been paid by the said , and no right of pre-emption having been established or claimed on the said land, or any part thereof, the said , or 302 LEGAL INSTRUMENTS. his legal representatives, shall, whenever thereunto afterward requested, execute and deliver to the said , or his legal repre- sentatives, a good and sufficient deed, conveying to the , free and clear of all incumbrance , then this obligation to be null and void, otherwise of full force and effect, it being distinctly understood and agreed, by and between the parties hereto, that the time of payment herein above fixed material and of the essence of this contract, and that, in case of failure therein, the intervention of equity is forever barred. . [Seal.'] Signed, sealed, and delivered in . \_SeaL] presence of . 195. Agreement for sale of real estate, California form. This agreement, made and entered into the day of , in the year of our Lord one thousand eight hundred and seventy , between , party of the first part and , of , the party of the second part, Witnesseth: That the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part, hereinafter contained, agrees to sell and convey unto the said party of the second part, and said second party agrees to buy all certain - or parcel of land situate in the , county of and State of , and bounded and particularly described as follows, to wit : for the sum of dollars, of the United States, and the said party of the second part, in consideration of the premises, agrees to pay to the said party of the first part, the said sum of dollars, as follows, to wit : and the said party of the second part agrees to pay all State, , and county taxes, or assessments of whatsoever nature, which are or may become due on the premises above described. In the event of a failure, to comply with the terms hereof, by the said party of the second part, the said party of the first part shall be released from all obligation in law or equity to convey said property, and said party of the second part shall forfeit all right thereto. And the said party of the first part, on receiving such payment, at the time and in the manner above mentioned, agrees to execute and to deliver to the said party of the second part, or to his assigns, a good and sufficient deed . And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. . [Seal.] Signed, sealed, and delivered in . [Seal. \ presence of . LEGAL INSTRUMENTS. 303 196. Form of contract for the sale of real 'estate, Ohio form. This agreement, made and entered into at , this day of , A. D. one thousand eight hundred and , by and between , of , County and State of Ohio, and , of , County and State of Ohio, Witnesseth : That the said hath sold, and doth agree to convey in fee-simple unto said , his heirs and as- signs forever, by a good and sufficient deed of general warranty, , on or before the day of , A. D. 1 8 , (upon the punctual payment by said of the consideration-money hereinafter men- tioned) the following premises, situate in , and bounded and described as follows : . Together with all the privileges and ap- purtenances to the same belonging, and all the rents, issues, and prof- its thereof. And the said , for , and for heirs, execu- tors, administrators, and assigns, do covenant and agree to and with , heirs and assigns, that he will pay to the said , heirs or assigns, the sum of , the consideration-money for said premises in the manner following : . All assessments and taxes, that now are or may hereafter be levied or assessed on said premises, are to be paid in the manner following : . The said hereby agrees that the said shall enter into possession of said premises on the day of , A. D. 18 , to use and improve as his own, in a good and husbandlike manner. It is understood and agreed, by and between the parties to this agreement, that if the said fail to pay the said consideration- money, or the assessments or taxes as herein stipulated, then this agreement is to be void as it regards the said , at option. In testimony whereof, the said have hereunto set their hands and seals, the day and year first above written. Signed and sealed in presence of us : 'jSeal. Seal 19*7. Articles of agreement for warranty deed, Illinois form. Articles of agreement, made this day of , in the year of our Lord one thousand eight hundred and , between , party of the first part, and , party of the second part, Wit- nesseth : That said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the pay- ments and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part will convey and assure to the party of the second part, in fee-simple, clear of all incumbrances whatever, by a good and sufficient war- ranty deed, the following lots, pieces, or parcels of ground, viz : . And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of dollars, 304 LEGAL INSTRUMENTS. in the manner following : dollars, cash in hand paid, the re- ceipt whereof is hereby acknowledged, and the balance , with interest at the 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 imposition-: 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 cither of the payments, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the op- tion of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him 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 him sustained, and he shall have the right to re- enter and take possession of the premises aforesaid, . It is mutually agreed 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. Signed, sealed, and delivered in . f Seal.'] presence of . . f ea.1 . [Seal] 198. Farm land contract, Michigan form. This contract, made the day of , in the year of our Lord one thousand eight hundred and , between , party of the first part, and , party of the second part, Witnesseth as follows : 1st. The said party of the first part, in consideration of the sum of , to be paid to the party of the first part, and of the covenants to be performed by the said party of the second part, as hereinafter expressed, hereby agrees to sell to the said party of the second part, all th certain tract of land situate in the of , in the State of Michigan, known and designated as , with the privileges and appurtenances thereunto belonging. 2d. The said party of the second part, in consideration of the covenants herein contained on behalf of the said party of the first part, agrees to purchase of the said party of the first part the above described land, and to pay for the same to the said party of the first part, or his legal representatives, the sum of dollars and cents, lawful money of the United States, in manner follow- ing, that is to say : with interest, to be computed from the date of these presents, at and after the rate of per centum per annum, on the whole sum that shall be from time to time unpaid, and to be paid annually ; both principal and interest to be paid ; and also, that he will, so long as any part of the principal or interest of the said consideration-money remains unpaid, well and faithfully, in due season, in each and every year, pay, or cause LEGAL INSTRUMENTS. 305 to be paid, nil taxes and assessments, ordinary and extraordinary, that may, for any purpose whatevei-, be levied or assessed on said premises, or on this contract, and that he will not commit or suffer any other person to commit any waste or damage to the said lands or the appurtenances, except for fire-wood, or otherwise for his own use, or while clearing off the lands for cultivation in the ordinary manner. 3d. The said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful per- formance, by the said party of the second part, of the covenants and agreements by him to bo performed, and upon the payment of the several sums of money above mentioned, and the interest thereon, at the time and in the manner and at the place above mentioned, to the said party of the first part, that thereupon the said party of the first part will well and faithfully execute and de- liver a good and sufficient deed or deeds, and thereby convey to the said party of the second part, his heirs and assigns, a good and unincumbered title in fee-simple to the above described prem- ises, with their appurtenances. 4th. It is further mutually covenanted and agreed, by and be- tween the parties hereto, that the said party of the second part may immediately enter on the said land, and remain thereon and culti- vate the same as long as he shall fulfill and perform all the agree- ments hereinbefore mentioned on his part to be fulfilled and performed, and no longer ; and that if he shall, at any time hereafter, violate or neglect to fulfill any of said agreements, lie shall forfeit all right or claim under this contract, and be liable to the said party of the first part for damages, and shall also be liable to be removed from the said land in the same manner as is pro- vided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease. And it shall be law- ful for the said party of the first part, at any time after the viola- tion or non-fulfillment of any of the said agreements on the part of the said party of the second part, to sell and convey the said land, or any part thereof, to any other person whomsoever ; and the said party of the first part shall not be liable in any way, nor to any person, to refund any part of the money which he may have re- ceived on this contract, nor for any damages on account of such sale. And it is hereby expressly understood and declared, that time is and shall be deemed and taken as of the very essence of this contract, and that unless the same shall, in all respects, be complied with by the said party of the second part, n,t the respective times, and in the manner above limited and declared, that the said party of the second part shall lose and be debarred from all rights, remedies, or actions, either in law or equity, upon or under this contract. 5th. This contract is hereby declared to be binding on the re- spective representatives of the parties hereto. NOTARIES 20. 806 LEGAL INSTRUMENTS. In -witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Sealed and delivered in . presence of . 199. Building contract, Ohio form. This agreement, between , of , county of and State of Ohio, party of the first part, (designated below as the employer) and , of , party of the second part, (designated below as the contractor) Witnesseth : 1. That the contractor agrees to furnish all the material, and do all the work of whatever kind, required by, or reasonably to be inferred from, the plans and specifications, (said plans and specifica- tions being hereby incorporated with and made a part of this contract) for the full and entire completion of , (designated herein as the improvement) for the sum of dollars. 2. The said contractor further agrees that all materials called for by the said plans and specifications are to be of the best qualities of their respective kinds, and that all work shall be done in the most thorough and workmanlike manner, and that he will not vary in any manner from the said plans and specifications without the written order of the employer. 3. The said contractor further agrees that he will entirely com- plete the said improvement by the day of , 18 ; and it is expressly agreed between the parties that the damages by each day's delay, beyond that date, are fairly to be estimated at , and are therefore, to avoid dispute, hereby fixed by agreement at that sum per day, and the amount of damages, estimated upon the basis so fixed, is to be deducted from the contract price as liquidated damages, and not by way of penalty. 4. The said employer * reserves the right to order in writing any alteration he may deem proper, from the said plans and specifica- tions. It is agreed between the parties that upon the delivery of any such order to the contractor, or person in charge of said work, it shall be the duty of either party, claiming any allowance in con- sequence of such alteration, to notify the other party in writing, before the alteration is actually commenced, and if the parties arc able to agree upon the amount to be added or deducted from the contract price, in consequence of such alteration, it shall be reduced to writing and signed by them. If they cannot so agree, then the said amount shall be fixed by , or in case he cannot act, then by some one to be appointed by , who shall make his decision in writing, and furnish both parties with a copy, and such decision shall be final. 5. It is expressly agreed by the parties that no such alteration shall in any way vitiate or annul this contract ; and, further, that in case of an alteration causing a deduction in work or materials, the contractor is not to claim or bring suit for any damages by way LEGAL INSTRUMENTS. 307 of loss of profits, on account of not being allowed to do this work, nor is the referee to admit this element into his decisions. 6. The said contractor expressly covenants and agrees that he will not, in any event, claim or bring suit for any greater sum, for the entire completion of the said improvement, than the contract price, with such additions or deductions as may be fixed by the written contracts and decisions above provided for. 7. The said parties expressly agree that no acts of any kind whatever, of either party, or both parties, shall be construed to be a waiver of the provisions of this contract, which require a written order for, or the fixing by written agreement or decision of a price for, any alteration from the said plans and specifications ; and fur- ther expressly agree that the making of any alteration, without a written agreement fixing the allowance to be made therefor, shall be taken to be an express agreement that the aggregate price shall not be changed at all, in consequence of such alteration. 8. The said employer reserves the right to appoint a superin- tendent, or inspector, of this improvement, and it is expressly stipulated and agreed that no claim shall be made or suit brought for any sum due, or claimed to be due, for said improvement, unless upon certificate of the said superintendent or inspector, that the improvement has been made in strict accordance with the contract, and plans, and specifications, or such alterations as may have been made therein in accordance with the stipulations of this contract. 9. Said parties further stipulate that, upon the failure by the con- tractor to proceed with said improvement to the satisfaction of the employer, so as to secure the completion of the improvement within the stipulated time, or upon his failure to comply with the requirements of this contract, it shall be lawful for the employer, after giving ten days' written notice of his intention so to do, to be served upon the contractor, (or cither of them, if there be more than one) or left at his or their last usual place of abode, either, first, to complete said improvement, by contract or day's work, at the expense of the said party of the second part, and to recover from said contractor and his sureties the additional expense thereby incurred, if any, over the amount due according to this contract ; or, second, at the option of the employer, to entirely avoid the con- tract, and bring suit at once against said contractor and his sureties for the damages occasioned thereby, in which latter case, all work done, and materials on the ground, are to become the property of the employer, without any further payment therefor. 10. The said employer agrees, upon the production of the cer- tificate of the superintendent or inspector, to pay for the full and entire completion of the said improvement in accordance with the plans and specifications, the contract price above stipulated, with such additions or deductions as may be fixed by written agreement or decision as above stipulated, or may be due as liquidated dam- ages for delay, as above agreed, and no more. The payment to be made in the following manner : 308 LEGAL INSTRUMENTS. In witness whereof, the said parties have hereunto set their hands this day of , 187 200. Builder's contract, Calif ornia form. Articles of agreement, made this day of , one thousand eight hundred and seventy , between , of , State of California, of the first part, and , of , of the second part : 1st. The said party of the second part does hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said party of the first part, his executors, administrators, and assigns, that he, the said party of the second part, his executors and administrators, shall and will, for the con- sideration hereinafter mentioned, on or before the , well and erect and finish the building , conformable to the draw- ings and specifications made by , and signed by the parties and hereunto annexed, within the time aforesaid, in a good, work- manlike, and substantial manner, to the satisfaction and under the direction of the said , to be testified by a writing or certificate under the hand of the said , and also shall and will find and provide such good, proper, and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for completing and finishing all the , and other works of said building mentioned in the specification, for the sum of dollars. And the said party of the first part does hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said party of Ihe second part, his executors and admin- istrators, that he, the said party of the first part, his executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part, as specified, well and truly pay, or cause to be paid, unto the party of the second part, his executors, administrat- ors, or assigns, the said sum of dollars, of the United States of America. In the manner following : Provided, that in each of the said cases a certificate be obtained and signed by the said . And it is hereby further agreed by and between the said parties : FIRST. The specifications and drawings are intended to co-op- erate, so that any works exhibited in the drawings, and not men- tioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications, and set forth in the drawing, to the true meaning and intention of the said draw- ings and specifications. SECOXD. The contractor, at his own proper costs and charges, is to provide all manner of materials and labor, scaffolding, imple- ments, moulds, models, and cartage of every description, for the due performance of the several erections. THIRD. Should the owner, at any time during the progress of said building, request any alterations, deviations, additions, or LEGAL INSTRUMENTS. 309 omissions from the said contract, specifications, or plan 3, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the said contract price, as the case may be, by a- fair and reasonable valuation. FOURTH. Should the contractor, at any time during the prog- ress of said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, (after three days' notice, in writing, given) to finish the said works, and the expenses shall be deducted from the amount of the said contract price. FIFTH. Should any dispute arise respecting the true construc- tion or meaning of the drawings or specifications, the same shall be decided by , and decision shall be final and conclusive; but should any dispute arise respecting the true value of the extra work or works omitted, the same shall be valued by two compe- tent persons one employed by the owner and the other by the contractor and in case they cannot agree, these two shall have power to appoint an umpire, whose decision shall be binding on all parties. SIXTH. The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing the same (loss or damage by fire excepted). In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Signed and sealed in the presence . \Seal.} of . f/6 T ea.~] . [Seal.-] 201. Bond, Ohio form. Know all men by these presents, that held and firmly bound unto in the sum of dollars, to be paid to the said , executors, administrators, or assigns, for which payment, well and truly to be made, bind heirs, executors, and administra- tors, firmly by these presents. Sealed with seal, dated the day of , one thousand eight hundred and . The condition of the above obligation is such, that , then the above obligation to be void, otherwise to remain in full force and virtue. Signed, sealed, and acknowledged in the . presence of us, . . 310 LEGAL INSTRUMENTS. 202. Assignment of judgment, New York form. Know all men by these presents, that whereas, I, , of the city of , in the State of New York, did, on the day .of , 187^ , recover a judgment in the Court of the State of New York, against for the sum of dollars ; which said judgment was docketed in the office of the clerk of the county of New York on the day of ., 187 . Now, therefore, I, the said , in consideration of the sum of dollars, to me paid, the receipt whereof is hereby acknowledged, have assigned, sold, transferred, and set over to , of the said city of , and do hereby assign, sell, transfer, and set over to the said , the said judgment, together with all sums of money thereon, and all benefits that may be obtained thereunder. And I do constitute the said my attorney, in my name or otherwise, but at his own costs and expense, to collect and enforce said judgment for his own benefit, and to give all proper and necessary receipts, releases, and acquittances therefor. And I do covenant to and with the said , his execu- tors, administrators, and assigns, that there is now due and owing on said judgment the sum of dollars, with interest thereon from , and that I have not received nor will receive any part of said sum of dollars and interest, and have not done and will not do any act or thing to delay or hinder the collection and enforcement of said judgment. In witness whereof, I have hereunto set my hand and seal, this day of , one thousand eight hundred and seventy . Sealed and delivered in presence . [/&?/.] of . 203. Assignment of judgment, California form. Know all men by these presents, that , of the State of Cali- fornia, the party of the first part, in consideration of the sum of dollars, of the United States of America, to me in hand paid by , the party of the second part, the receipt of which is hereby acknowledged, has sold, assigned, transferred, and set over, and by these presents doth sell, assign, transfer, and set over, unto the said party of the second part, and his assigns, a certain judg- ment, recovered by the said party of the first part, on the day of , in the ye:ir of our Lord one thousand eight hundred and , in the Court of the , State of , against , for the sum of dollars , and dollars costs. And all sums of money that may be had or obtained by means of said judgment, or on any proceedings to be had thereupon. And the said party of the first part doth hereby constitute and appoint the said party of the second part, and his assigns, his true and lawful attorney, irrevocable, with power of substitution and revocation, for the use and at the proper costs and charges of the said party of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways and means for the recovery of the money due or to become LEGAL INSTRUMENTS. 311 due on the said judgment ; and on payment to acknowledge satis- faction or discharge the same. And attorneys one or more under for the purpose aforesaid, to make and substitute, and at pleasure to revoke ; hereby ratifying and confirming all that said attorney or substitute shall lawfully do in the premises. And the said party of the first part doth covenant that he will not collect or receive the same or any part thereof, nor release or discharge the said judgment, but will own and aHow all lawful proceedings therein, the said party of the second part saving the said party of the first part harmless of and from any costs in the premises. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day of , in the year of our Lord one thousand eight hundred and . . [Seal.] Signed, sealed, and delivered in the presence 01 . 204. Assignment of judgment, Illinois form. This indenture, made the day of , one thousand eight hundred and seventy , between , of , State of Illinois, party of the first part, and , party of the second part. Whereas, that said party of the first part, , on the day of , one thousand eight hundred and , recovered by judgment , in the , against , the sum of , now this indenture Wit- nesseth : That the said party of the first part, in consideration of , to him duly paid, has sold, and by these presents does assign, transfer, and set over unto the said party of the second part, and his assigns, the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to l)e had thereupon. And the said party of the first part does hereby constitute and appoint the said party of the second part, and his assigns, his true and lawful attorney, irrevocably, with power of substitution and revocation, for the use and at the proper costs and charges of the said party of the second part, to ask, de- mand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due or to become due on the said judgment ; and on payment to acknowledge satisfaction or discharge the same, and attorneys one or more under for the purpose aforesaid, to make and substitute, and at pleasure to revoke ; hereby ratifying and confirming all that said attor- ney or substitute shall lawfully do in the premises. And the said party of the first part does covenant, that there is now due on the said judgment the sum of and that he will not collect or re- ceive the same, or any part thei-eof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein, the said party of the second part saving the said party of the first part harmless of and from any costs in the premises. 312 LEGAL INSTRUMENTS. In testimony whereof, the party of the first part has hereunto set his hand and seal, the day and year first above written. Sealed and delivered in presence . [/Sea/.] of . . [Seal.] 205. Assignment of patent. Whereas, , of the city of Chicago, in the county of Cook and State of Illinois, did obtain letters-patent of the United States, No. , for , certain , which letters-patent bear date the day of , eighteen hundred and . And whereas is desirous of acquiring an interest therein : Now, therefore, this indenture Witnesseth : That for and in con- sideration of the sum of dollars, to me in hand paid, the re- ceipt whereof is hereby acknowledged, I have granted, sold, and set over unto the said , all the right, title, and interest which I have in the said invention, as secured to me by said letters-patent for, to, and in the , and in no other place or places ; the same to be held and enjoyed by the said , for his own use and behoof, and for the use and behoof of his legal representatives, to the full end of the term for which said letters-patent are granted, , as fully and entirely as the same would have been held and enjoyed by me had this grant and sale not been made . In testimony whereof, I have hereunto set my hand and affixed my seal, this day of , A. D. 187 . . [Seal.] Sealed and delivered in the . [Seal.] presence of . 206. Assignment to creditors (From J} is/top's JZurrell on Assignments.) This indenture, made this day of , in the year , be- tween , of , party of the first part, and , of , party of the second part, Witnesseth : That whereas, the party of the first part is indebted to divers persons in sundry sums of money, which ho is unable to pay in full, and is desirous of providing for the payment of the same so far as in his power, by an assignment of all his property for that purpose. Now therefore, the said party of the first part, in consideration of the premises, an dot' the sum of one dollar, to him paid by the party of the second part, upon the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, assigned, transferred, and set over, and by these presents does grant, bargain, sell, transfer, assign, and set over, unto the said party of the second part, his successors and as- signs, all and singular the lands, tenements, hereditaments, appur- tenances, goods, chattels, stock, promissory notes, debts, claims, demands, property, and effects of every description belonging to the party of the first part, wherever the same may be, except LEGAL INSTRUMENTS. 313 such property as is exempt by law from le'vy and sale under execution ; to have and to hold the same, and every part thereof, unto the said party of the second part, his successors and assigns, in trust, nevertheless to take possession of the same, and to sell the same with all reasonable dispatch, and to convert the same in- to money, and also to collect all such debts and demands hereby assigned as may be collectible, and with and out of the proceeds of such sales and collections . 1. To pay and discharge all the just and reasonable expenses, costs, and charges of executing this assignment, and of carrying into effect the trust hereby created, together with a lawful com- mission to the party of the second part for his services in executing said trust. 2. To pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said party of the first part, with all inter- est-money due or to grow due ; and if the residue of said proceeds shall not be sufficient to pay said debts and liabilities and interest- moneys in full, then to apply the said residue of said proceeds to the payment of said debts and liabilities, ratably and in proportion. 3. And if, after the payment of all the said debts and liabilities in full, there be any remainder of said property or proceeds, to repay and return the same to the said party of the first part, his executors, administrators, and assigns. And in furtherance of the premises, the said party of the first part does hereby make, constitute, and appoint the said party of the second part his true and lawful attorney, irrevocable, with full power and authority to do all acts and things which may be neces- sary in the premises to the full execution of the trust hereby cre- ated, and to ask, demand, recover, and receive, of and from all and every person or persons, all property, debts, and demands due, ow- ing, and belonging to the said party of the first part, and to give acquittances and discharges for the same, to sue, prosecute, defend, and implead for the same, and to execute, acknowledge, and deliver all necessary deeds, instruments, and conveyances. And the said party of the first part does hereby authorize the said party of the second part to sign the name of the said party of the first part to any check, draft, promissory note, or other instrument in writing which is payable to the order of the said party of the first part, or to sign the name of the party of the first part to any instrument in writing whenever it shall be necessary*so to do to carry into ef- fect the object, design, and purpose of this trust. The said party of the second part doth hereby accept the trust created and reposed in him by this instrument, and covenants and agrees, to and with the said party of the first part, that he will faithfully and without delay execute the trust ci-eated according to the best of his skill, knowledge, and ability. 314 LEGAL INSTRUMENTS. In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written. Sealed and delivered in presence -- of -- . STATE OF CALIFORNIA, City and County of San Francisco, ) On this - day of - , in the year of our Lord one thousand eight hundred and seventy - , before me came - , - , to me personally known, and known to me to be the persons described in and who executed the above instrument, and each for himself sev- erally acknowledged that he executed the same. 207. Lease, California form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , Witnesseth : that I, , of the , State of California, lessor, do hereby lease, demise, and let unto, [description] to have and to hold, for the term of - , to wit, from the day of , 187 , to the day of - , 187 , yielding and paying therefor the rent of dollars, gold coin of the United States of America, and the said lessees promise to pay the rent in such as follows, to wit : , and to quit and deliver up the premises to the lessor or his agent, or attor- ney, peaceably and quietly, at the end of the term, in as good order and condition (reasonable use and wear thereof, and damages by the elements excepted) as the same are now or may be put into ; and to pay the rent as above stated during the term j also the rent as above stated for such further time as the lessee may hold the same, and not make or suffer any waste thereof, nor lease or under- let, nor permit any other person or persons to occupy or improve the same, or make or suffer to be made any alteration therein, but with the approbation of the lessor thereto, in writing, having been first obtained; and that the lessor may enter to view and make improvements, and to expel the lessee if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof. And should default be made in the payment of any portion of said rent when due, and for days thereafter, the said lessor, his agent or attorney, may re-enter and take possession, and at his option terminate this lease. . \_Seal.~] feigned, sealed, and delivered in . [>#ea.] presence of . 208. Lease^ California form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , between , LEGAL INSTRUMENTS. 315 of , State of California, the party of the first part, and , the party of the second part, Witnesseth : That the said party of the first part does by these presents lease and demise unto the said party of the second part , with the appurtenances, for the term of , from the day of , A. D. one thousand eight hund- red and seventy , at the rent, or sum of dollars, payable in gold coin of the United States of America, in ad- vance, on the day of each and every month during said term . And it is hereby agreed that if any rent shall be due and un- paid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises and to remove all persons therefrom. And the said party of the second part does hereby covenant, prom- ise, and agree to pay to the said party of the first part the said rent in the manner hereinbefore specified. And not to let or underlet the whole or any part of the said premises without the written consent of the said party of the first part. And that, at the expi- ration of said term, the said party of the second part will quit and surrender the said premises in as good state and condition as rea- sonable use and wear thereof will permit (damages by the elements excepted). In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Signed, sealed, and delivered in the . \Seal.~] presence of . . [/ 208. Lease, California form. This indenture, made the day of , in the year of our Lord one thousand eight hundred and seventy , between , of , State of California, and , the party of the second part, Wit- nesseth : That the said party of the first part, for and in considera- tion of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained on the part and behalf of the said party of the second part, executor.-, administrators, and assigns, to be paid, kept, and performed, does by these presents grant, demise, and let unto the said party of the second part, executors, admin- istrators, arid assigns, all ~. To have and to hold the said prem- ises, with the appurtenances, unto the said party of the second part, his executors, administrators, and assigns, from the day of , one thousand eight hundred and seventy , for and dur- ing the full term of thence next ensuing, and fully to be com- plete and ended; yielding and paying therefor unto the said party of the first part, his heirs or assigns , during the said term, the rent or sum of . Provided always, nevertheless, that if the rent above reserved, or any part thereof, shall be in arrear or unpaid on any day of payment whereon the same ought to be paid as aforesaid, or if default shall be made in any of the cove- nants herein contained, on the part or behalf of the said party of the second part, his executors, administrators, and assigns, to be 316 LEGAL INSTRUMENTS. pai. Snowden, 11 Ohio St. 203, Ballard v. Perry, 28 Tex. 347, pp. 36, 73. p. 46. Bank of Alexandria v. Swan, 9 Pet. 33, pp. 120, 131. Auburn v. Putnam, 1 Abb. App. Dec. 80, p. 125. Bank of Bennington v. Raymond, 12 Vt. 401, p. 88. Columbia t;. Lawrence, 1 Pet. 578, p. 127. Columbia v. Magruder, 6 H. & J. 172, p. 148. Commonwealth v. Mudgett, 44 N. Y. 514, p. 149. Decatur v. Hodges, 9 Ala. 631, p. 114. Geneva v. Hewlett, 4 Wend. 328, p. 129. Kentucky v. Garey, 6 B. Mon. 626, p. 151. Kentucky v. Goodale, 20 La. An. 50, p. 143. Kentucky r. Pursley, 3 T. B. Mon. 238, p. 25. Louisiana v. Mansker, 15 La. 115, p. 126. Louisiana v. Satterfield, 14 La. An. 80, pp. 151, 153. Manchester v. Slason, 13 Vt. 334, p. 25. Missouri v. Vaughan, 36 Mo. 90. p. 124. Mobile v. Brown, 42 Ala. 108, p. 112. Mobile v. King, 9 Ala. 279, p. 148. Bank v. Porter, 2 Watts, 141, p. 113. Bank of Rochester v. Gould, 9 Wend. 279, p. 120. Rochester v. Gray, 2 Hill, 227, pp. 124, 139, 145. Scotland v. Hamilton, 1 Bell Com. 409, p. 93. Syracuse v. Hollister, 17 N. Y. 46, p. 103. TT. S. v. Carmeal, 2 Pet. 543, p. 109. v. Daniel, 12 Pet. 32, p. 111. V. Goddard, 5 Mason, 366, p. 123. . Hatch, 6 Pet. 250, p. 128. v. Leathers, 10 B. Mon. 64, p. 111. Utica v. McKinster, 11 Wend. 475, p. 124. v. Smith, 18 Johns. 230, pp. 88, 103, 124. Vergennes v. Cameron, 7 Barb. 143, p. 151. 846 TABLE OF CASES. Bank of Washington v. Triplett, 1 Pet. '25, p. 88. Bank v. Woods, 11 Penn. St. 99, p. 73. Barber v. Ketcham, 4 Hill, 224, p. 150. Barclay v. Bailey, 2 Campb. 527, pp. 102, 104. Barker v. Cassidy, 16 Barb. 177, p. 145. v. Fullerton, 11 La. An. 25, p. 143. Barnes v. Caldwell, 3 Pittsb. 336, p. 126. Barnwell v. Mitchell, 3 Coan. 101, p. 130. Barrett v. Allen, 10 Ohio, 426, p. 106. v. Evans, 28 Mo. 331, p. 127. Barren v. Pettes, 18 Vt. 385, p. 72. Barrow v. Richardson, 23 La. An. 203, p. 153. Bartlett v. Fleming, 3 W. Va. 1G3, p. 45. Barton v. Morris, 15 Ohio, 408, p. 39. Bassett v. Haines, 9 Cal. 261, p. 94. Battin v. Bigelow, 1 Pet. C. 0. 452, p. 43. Baumgardner v. Beeves, 35 Penn. St. 250, p. 143. Bayly v. Chubb, 16 Gratt. 284, p. 130. Beach v. Workman, 20 N. H. 379, p. 79. Beale v. Parrish, 20 K Y. 407, p. 123. Beals v. Peck, 12 Barb. 245, p. 126. Beaman v. Whitney, 20 Me. 413, p. 29. Beatty v. Ambs, 11 Minn. 331, p. 83. Beckwith v. Smith, 22 Me. 125, p. 150. Beckwith v. St. Croix Man. Co. 23 Me. 284, p. 150. Behn v. Young, 21 Ga. 207, p. 62. Belden v. De Voe, 12 Wend. 225, p. 64. Bell v. Chambers, 38 Ala. 660, p. 79. v. Evans, 10 Iowa, 353, p. 39. v. Hagerstown Bank, 7 Gill. 216. pp. 127. 148. v. Lent, 24 \Vend. 230, p. 148. v. State Bank, 7 Blackf . 457, p. 127. Bellasis v. Hester, 1 Ld. Raym. 281, p. 96. Bemis v. Leonard, 118 Mass. 502, p. 106. Bennett v. Paine, 7 Watts. 334, p. 32. v. Young, 18 Penn. Str 261, p. 142. Berkshire Bank v. Jones, 6 Mass. 524, p. 109. Bernard v. Elder, 50 Miss. 342, p. 43. Blackburn v. Pennington, 8 B. Mon. 217, pp. 39. 43. Blakely v. Grant, 6 Mass. 386, p. 128. Blanchard v. Bennett, 1 Oreg. 328, p. 62. Boggs v. Bank of Mobile, 10 Ala. 970, p. 152. Bond v. Bragg, 17 111. 69, p. 139. Bondurant v. Everett, 1 Met. Ky. 658, p. 127. Booker v. Lowery, 2 Ala. 399, p. 143. Booth v. Cook, 20 HI. 129, pp. 36, 182. Boothroyd v. Engles, 23 Mich. 19, p. 28. Bowling v. Arthur, 34 Miss. 41,p. 134. v. Harrison, 6 How. U. S. 248, pp. 126, 127. Bowman v. Wettig, 39 IlL 416, p. 28. Bown v. Bean, 1 D. Chip. 176, p. 82. Bowne v. Moore, 38 Tex. 645, p. 33. Boyd t'. City Savings Bank, 15 Gratt. 501, pp. 101, 118, 126. Boykin v. Rain, 28 Ala. 332, p. 44. Bracken v. March, 4 Mo. 74, p. 78. Bradley v. Davis, 26 Me. 45, pp. 121, 140, 154. Bradshaw v. Hedge, 10 Iowa, 402, p. 142. Brailsford v. Williams, 15 Md. 157, p.' 123. Branch Bank v. McLeran, 2G Iowa, 306, p. 101. Brandon v. Loftus, 4 How. U. S. 127, p. 151. Bray v. Hadwen, 5 M. & S. 68, p. 134. Biencourt v. Parker, 27 Tex. 558, p. 82. Brews ter v. Doane, 2 Hill, 537, p. 154. Breyfogle v. Beckley, 16 S. & R. 264, p. 80. Brighton v. Walker, 35 Me. 132, p. 72. Brinton v. Seevers, 12 Iowa, 389, p. 30. Bristol v. Warner, 19 Conn. 7, p. 86. Brittain v. Bank, 5 Watts & S. 87, p. 139. Broadnax v. Sullivan, 29 Ala. 320, p. 73. Brooks v. Chaplin, 3 Vt. 281, p. 33. v. Day, 11 Iowa, 40, p. 150. v. Snead, 50 Miss. 410, p. 65. Brown v. Farran, 3 Ohio, 140, pp. 39, 44. v. Lunt, 37 Me. 423, pp. 17, 33. v. Manter, 22 N. H. 408, p. 29. v. Philadelphia Bank, S. & R. 484, p. 137. v. State, 43 Tex. 478, p. 11. v. Turner, 15 Ala. 8->2, p. 101. Bryan v. Ramirez, 8 Cal. 461, p. 29. Bryden v. Taylor, 2 Har. & J. 399, p. 139. Buford v. Gould, 35 Ala. 265, p. 73. Burbankv. Beach, 15 Barb. 320, pp. 115, 142, 151. Burgess v. Vreeland, 4 N. J. 71, pp. 122, 133. Burke v. McKay, 2 How. U. S. 66, p. 113. Butler v. Murison, 18 La. An. 363, p. 154. v. Wright, 2 Wend. 369, p. 154. Butterfield & Butt, In re, 14 B. Reg. 195, p. 22. Buxton u. Jones, 1 M. & G. 86, p. 102. C. Cabot Bank v. Russell, 4 Gray, 167, p. 129. Cabot Bank v. Warner, 10 Allen, 522, p. 126. Callaway v. Fash, 50 Mo. 420, p. 31. Calumet, etc. Co. v. Russell, 68 HI. 426, pp. 42, 156. Cantwell v. State, 27 Ind. 505, p. 65. Cape Fear Bank v. Steinmetz, 1 Hill, 44, p. 138. Carlyle v. Plumer, 11 Wis. 96, p. 74. Carmichael v. Bank, 4 How. Miss. 567, p. 90. Carpenters. Dame, 10 Ind. 125, p. 78. TABLE OF CASES. 347 Carter v. Bradley, 19 Me. 62, p. 120. v. Burley, 9 X. H. 558, pp. 134, 139. v. Ewing, 1 Tenn. Ch. 212, p. 82. v. Union Bank, 7 Humph. 548, pp. 99, 113. Caruthers v. Harbert, 5 Coldw. 3G2, p. 149. Case v. Burt, 15 Mich. 82, pp. 9G, 104. Castles v. McMath, 1 Ala. 32G, p. 142. Cauntu. Thompson, 7 C. B. 400, p. 119. Cavasos v. Gonzales, 33 Tex. 133, p. 75. Cayuga Bank v. Bennett, 5 Hill, 230, p. 126. v. Hunt, 2 Hill, 635, pp. 101, 114. Cayuga Co. Bank v. Warden, 1 Comst. 413, p. 120. Central Bank v. Copelaud, 18 Md. 305, pp. 45, 155. v. St. John, 17 Wis. 157, p. 143. Chanoinew. Fowler, 3 Wend. 173, p. 123. Chapman v. Keene, 3 Ad. & El. 193, p. 123. Chase v. Street, 10 Iowa, 593, p. 67. Chaters v. Bell, 4 Esp. 48, p. 114. Chatham Bank v. Allison, 15 Iowa, 357, p. 151. Cheek v. Koper, 5 Esp. 175, p. 88. Chenowith v. Chamberlin, 6 B. Mon. 60, p. 99. Chesmer v. Noyes, 4 Camp. 129, p. 138. Chew t7. Reed, 19 Miss. 182, p. 151. Chicopee Bank v. Eager, 9 Met. 583, p. 127. v. Philadelphia Bank, 8 Wall. 641, p. 109. Chiniciuy v. Bishop of Chicago, 41 111. 148, p. 34. Chouteau v. Webster, G Met. 1, p. 129. City, etc. Ins. Co. v. Carrugi, 41 Ga. 660, p. 75. Clark v. Eldridge, 13 Met. 96, p. 121. Clay v. Oakley, 17 Mart. 137, p. 125. Clement v. Durgin, 5 Me. 9, p. 80. Coddington v. Davis, 1 Comst. 186, p. Coleman v. Carpenter, 9 Barr, 178, p. lol. v. Sayer, 1 Barn. 302, p. 87. v. Smith, 20 Penn. St. 255, pp. 139, 146. Collins 17. Boyd, 5 Dana, 316, p. 36. v Butler, Stra. 1087, p. 89. Colton t7. Seavey, 22 Cal. 496, p. 35. Commercial Bank v. Barksdale, 36 Mo. 563, p. 99. Com. Bank of Manchester v. Agricul- tural Bank, 7 S. & M. 592, p. 134. Commercial Bank v. Varnum, 49 N. Y. 275, pp. 99, 134. Conine v. Junction, etc. R. R. Co. 3 Houston, 289,p. 85. Connelly v. McKean, 64 Penn. St. 113, p. 96. Cook v. Bell, 18 Mich. 387, p. 82. Cook v. Litchfield, 5 Saudf. 330, p. 120. Cooks v. Staats, 18 Barb. 407, p. 64. Coore v. Callaway, 1 Esp. 115, p. 94. Coster v. Thomason, 19 Ala. 721, p. 139. Cowles 17. Harts, 3 Conn. 517, p. 122. Cromwell v. Hynson, 2 Esp. 511, pp. 114, 128. Crosse v. Smith, 1 M. & Sel. 545, p. 125. Crowley v. Barry, 4 Gill, 194, p. 116. Crumbaugh v. Kugler, 2 Ohio St. 373, p. 35. Currier v. Lockwood, 40 Conn. 348, p. 86. Curry v. Bank of Mobile, 8 Port. 360, p. 148. Curtis v. Buckley, 14 Kan. 450, p. 141. Cushman v. Wooster, 45 N. H. 410, p. 74. Cuyler v. Stevens. 4 Wend. 566, p. 118, 133. D. Dakin v. Graves, 48 K H. 45, p. 142. Dana v. Sawyer, 22 Me. 244, p. 104. Darbishire v. Parker, 6 East, 3, p. 103. Davis v. Clarke, 6 Ad. & El. 1G, p. 94. v. Rich, 2 How. Pr. 80, p. 65. Davis' Trusts, In re, L. R. 8 Eq. 98, p. 62. Dean v. Tygert, 1 A. K. Marsh. 172. Dehers v. Harriot, 1 Show. 163, p. 87. De La Hunt v. Higgins, 9 Abb. Pr. 422, p. 133. Delauney v. Burnett, 9 111. 454, p. 37. Deminds v. Kirkman, 1 Sm. & M. 644, p. 133. Den v. Geiger, 4 Halst. 225, p. 66. Den v. Hamilton, 12 K J. L. 109, p. 29. Den v. Lloyd, 31 N. J. L. 395, p. 81. Dennett v. Wyman, 13 Vt. 485, p. 103. Dennis v. Tarpenny, 20 Barb. 371, p. 39, p. 43. Dennison v. Benner, 41 Me. 332, p. 73. Dennistoun v. Stewart, 17 How. U. S. 606, p. 114. Desegond v. Culver, 10 Ohio, 188, p. 32. De Wolf v. Murray, 2 Sandf . 166, pp. 115, 122. Dickens v. Beale, 10 Pet. 572, p. 111. Dickerson v. Davis, 12 Iowa, 353, p. 39. v. Turner, 12 Ind. 223, p. 143. Dodge v. Hollingshead, 6 Minn. 25, p. 155. Doe v. King, 4 Miss. 125, p. 73. v. Lewis, 29 Ga. 45, p. 37. Dole v. Gold, 5 Barb. 490, p. 121. Donegan v. Wood, 49 Ala. 242, pp. 99, 137. Donoho v. Petit, 1 Miss. 440, p. 73. Dorchester Bank v. New England Bank, 1 Cush. 177, pp. 125, 134. Dorsey v. Merritt, 7 Miss. 390, p. 145. Doubieday v. Kress, GO Barb. 181, p. 98. Downer v. Remer, 21 Wend. 10, p. 129. Draper v. Clemens, 4 Mo. 52, pp. 100, 108. Drumm v. Bradfute, 18 La. An. 680, p. 142. Duckert v. Van Lileinthal, 11 Wis. 56, pp. 117, 151. 348 TABLE OF CASES. Duinout v. McCracken, 6 Blackf. 356, p. 25. y. Pope, 7 Blackf. 3T>7, pp. 91, 142. Dunbar r. Tyler, 44 Miss. 1, p. 110. Duudas v. Hitchcock, 12 How. 256, pp. 3!>, 44. Dunlap v. Daugherty, 20 111. 397, p. 35. v. Waldo, G N. H. 450, p. 82. Dunn v. Adams, 1 Ala. 527, p. 25. Dutchess Co. Bank v. Ibbotsron, 5 Den. 110, pp. 145, 146. Dye v. Bailey, 2 Cal. 383, p. 71. E. Eagle Bank v. Hathaway, 5 Met. 213, p. 127. Eason v. Isbell, 42, Ala. 456, p. 100. Eastman v. Turman, 24 Cal. 383, p. 121. Eaton v. Woydt, 32 AVis. 277, p. 32. Ede v. Johnson, 15 Cal. 53, p. 65. Edes v. Bishop of Oxford, Vaugh. 23, p. 5. Edgerton v. Jones, 10 Minn. 427, p. 40. Edson v. Jacobs, 14 La. An. 494, p. 126. Elgin i'. Hill, 27 Cal. 372, p. 72. Elliott v. Peirsol, 1 Pet. 328, p. 40. Ellis v. Com. Bank, 7 How. Miss. 294, p. 99. English v. Wall, 12 Rob. La. 132, p. 88. Erskine r. Boyd, 35 Me. 511. p. 72. Estep v. Cecil, 6 Ohio St. 536, p. 139. Evans v. Commonwealth, 4 S. &R. 272, p. 40. Everard v. Watson, 1 El. & B. 801, p. 122 Ewald v. Corbett, 32 Cal. 493, p. 40. F. Fabens v. Mercantile Bank, 23 Pick. 330, p. 125. Fabyan v. Adams, 15 N. H. 371; p. 72. Fall River Bank v. Willard, 5 Mete. 216, pp. 90, 103. Farmers' Bank v. Allen, 18 Md. 475, p. 116. v. Battle, 4 Humph. 86, p. 129. v. Bowie, 4 Md. 290, pp. 116, 151. Farnum v. Buffum, 4 Gush. 264, p. 36. Farnsworth v. Allen, 4 Gray, 453, p. 104. Farrell Foundry . Dart, 26 Conn. 376, p. 176. Farrelly v. Maria, 34 Ala. 284, p. 73. Fassin v. Hubbard, 55 N. Y. 465, pp. 99, 125. Field v. Nickeraon, 13 Mass. 131, p. 102. v. Tenney, 47 N. H. 513, p. 70. v. Thornton, 1 Ga. 306, p. 143. First Nat. Bank v. Owen, 23 Iowa, 185, p. 103. Fisher v. Beckwith, 19 Vt. 31, p. 90. v. Evans, 5 Binn. 542, p. 128. v. Leslie, 1 Esp. 425, p. 85. Fisher r. Meister, 24 Mich. 447, p. 42. Fisk v. Tank, 12 Wis. 276, p. 76. Flanagan v. Young, 2 Har. & M. 38, p. 30. Fleming v. Fulton, 7 Miss. 473, p. 145. v. Richardson, 13 La. An. 414, p. 25. Flint v. Rogers, 15 Me. 67, p. 103. Foard v. Johnson, 2 Ala. 565, p. 130. Fogarty v. Finlay, 10 Cal. 239, pp. 30, 47. v. Sawyer, 23 Cal. 570, p. 36. Folger v. Chase, 18 Pick. 63, p. 109. . Ford v. Mitchell, 15 Wis. 304, p. 112. Foster v. Foster, 20 N. H. 208, p. 74. Frank v. Longstreet, 44 Ga. 178, p. 118. Freedman's Bank v. Perkins, 7 Shep. 292, p. 124. Freeman v. Boynton, 7 Mass. 483, pp. 88, 108. Fry r. Hill, 7 Taunt. 397, p. 91. Fryatt v. Lindo, 3 Edw. Ch. 239, p. 65. Fuller v. Dingman, 41 Iowa, 506, p. 148. Fullerton v. Bank of U. S. 1 Pet. 004, pp. 109, 132. Fund Commissioners v. Glass, 17 Ohio, 542, p. 357. G. Gage v. Dubuque. etc. R. Co. 11 Iowa, 310, p. 24. Gale v. Walsh, 5 T. R. 239, p. 99. Gammon v. Schmoll, 5 Taunt. 344, p. 97. Garnett v. Stockton, 7 Humph. 84, p. 30. v. Woodcock, 1 Starkie, 475, p. 103. Garrett v. Moss, 22 m. 363, p. 39. Garthwaite v. Seip, 23 La. An. 218, p. 133. Gates v. Beecher, 60 N. Y. 518, pp. 101, 119. Gawtry v. Doane, 48 Barb. 148, pp. 143. 145. v. Doane, 51 N. Y. 85, p. 99. Gazzam v. Armstrong, 3 Dana, 554, p. 97. Geralopulo v. Wieler, 10 C. B. 690, p. 114. Gibbons v. Gentry, 20 Mo. 468, p. 33. Gibbs v. Osborne, 2 Wend. 555, p. 37. v. Swift, 12 Cush. 393, p. 29. Gilbert v. Dennis, 3 Met. 495, pp. 108, 118, Gilchrist v. Donnell, 53 Mo. 591, p. 130. Gill v. Fauntleroy, 8 B. Mon. 177, p. 30. v. Palmer, 29 Conn. 54, p. 120. Gillespie v. Nevill, 14 Cal. 408, p. 121. Gillett v. Stanley, 1 Hill, 121, p. 37. Gindrat v. Mechanics' Bank, 7 Ala. 324, p. 127. Gist v. Lybrand, 3 Ohio, .T07, p. 127. Glasgow v. Copeland, 8 Mo. 268, p. 88. Goldsmith v. Blane, 1 Maule & S\ 554, p. 128. Goode v. Colehan, 2 Stra. 1217, p. 86. v. Smith, 13 Cal. 81, p. 39. Goodman v. Harvey, 4 Ad. & El. 870, pp. 114, 122. v. Norton 17 Me. 381, p. 132. TABLE OF CASES. 349 Gordon v. Price, 10 Ired. 385, p. 143. Goupy v. Harden, 7 Taunt. 50, p. 91. Gove v. Gather, 23 111. 634, p 39. Gowan v. Jackson, 20 Johns. 176, pp. 91, 125. Gower v. Moore, 25 Me. 16, p. 101. Graf ton v. Moore, 14 N. H. 142, p 139. Graham v. Anderson, 42 111. 514, pp. 34 156 Granite 'Bank v. Ayers, 16 Pick. 392, p. 107. Grant, Succession of, 14 La. An. 795, p. 81. Gray v. Bell, 2 Rich. 67, p. 103. v. Ulrich, 8 Kan. 112, p. 29. Green v. Glass, 29 Ga. 246, p. 37. Green v. Louthain, 49 Ind. 139, p. 118. v. Jackson, 15 Me. 136, p. 139. Grimes v. Martin, 10 Iowa, 347, p. 70. Grinman v. Walker, 9 Iowa, 426, p. 128. Groesbeck v. Seeley, 13 Mich. 320, p. 33. Grosvenor v. Stone, 8 Pick. 79, p. 125. Groton v. Dallheim, 6 Greenl. 476, p. 89. Grove v. Zumbro, 14 Gratt. 501, p. 45. Grugeon v. Smith, 6 Ad. & El. 499, p. 121. Guppy v. Brown, 4 Dall. 410, p. 83. H. Haggett v. Iniff, 31 Eng. L. & Eq. 202, p. 63. Hairston v. Randolphs, 12 Leigh, 445, p. 42. Hall v. Davis, 44 111. 497, p. 64. Hamilton v. Pitcher, 53 Mo. 334, p. 33. Hankey v. Trotman, 1 W. Bl. 1. p. 102. Harden v. Boyce, 59 Barb. 427, p. 110. Hardin v. Osborne, 60 111. 93, p. 3o. Harding v. Merrick, 3 Ala. 60, p. 78. Harger v. Bemis, 1 Thomp. & C. 460, p. 131. Harkins v. Forsyth, 11 Leigh, 294, p. 155. Harness v. Davies Co. Sav. Ass. 46 Mo. 357, p. 117. Harrington v. Fish, 10 Mich. 415, p. 28. Harris v. Clark, 10 Ohio, 5, p. 88. v. Robinson, 4 How. U. S. 336, p. 124. Harrison v. Nichols, 31 Yt. 709, p. 71. v. Ruscoe, 15 L. J. Exch. 110, p. 123. Hart v. "Wilson, 2 Wend. 513, p. 140. Hartford Bank v. Stedman, 3 Conn. 489, p. 127. Hartley's Case, 1 C. & P. 556, p. 105. Hartley v. Case, 4 Barn. & C. 339, p. 121. v. Frosh, 6 Tex. 208, p. 45. Harty v. Ladd, 3 Oreg. 353, p. 40. Haskell v. Boardman, 8 Allen, 38, pp. 132, 133. Haskins v . Smith, 17 Vt. 263, p. 69.. Hastings v. Barrington, 4 Whart. 48G, p. 147. Hastings v, Vaughn, 5 Cal. 315, pp. 29, 36 Hatheld v. Perry, 4 Har. (Del.) 463, p. 139. Hathaway v. Scott, 11 Paige, 173, p. 65. Hawkes v. Salter, 4 Bing. 715, p. 133. Hayden v. Westcott, 11 Conn. 129, pp. 29,30. Hays v. Hays, 5 Rich. 31, p. 45. Hayward Rubber Co. v. Duncklee, 30 Vt. 29, p. 70. Heinrich v. Simpson, 66 111. 57, p. 43. Henderson v. Cargill, 31 Miss. 367, p. 697 v. Grewell, 8 Cal. 581, p. 39. Herkimer Co. Bank v. Cox, 21 Wend. 119, p. 113. Herrick v. Baldwin, 17 Minn. 209, p. 107. Higgins v. Wortel, 18 Cal. 330, p. 71. Hildeburn v. Turner, 6 How. 69, p. 117. Hill v. Bacon, 43 111. 477, p. 34. v. Norvell, 3 McLean, 583, p. 130. v. Samuel, 21 Miss. 307, p. 29. Hilton v. Shepherd, 6 East, 16, pp. 92, 123. Himmelmann v. Hotaling, 40 Cal. Ill, p. 102. Hinckley v. O'Farrel, 4 Blackf . 185, p. 25. Hoare v. Cazenove, 16 East, 391, p. 97. Hobbs v. Shumates, 11 Gratt. 516, p. 80. Holliday v. McDougall, 20 Wend. 81, p. 138. Hollingsworth v. McDonald, 2 Har. & J. 230, p. 39. Holtz v. Boppe, 37 N. Y. 634, pp. 88, 101. Home Ins. Co. v. Green, 19 X. Y. 518, p. 120. Homes v. Smith, 16 Me. 181, pp. 126, 154. Harker v. Anderson, 21 Wend. 372, p. 122. Hoover v. Rawlings, 1 Sneed, 287, p. 80. Hope v. Sawyer. 14 111. 254, p. 33. Housatonic Bank v. Laflin, 5 Gush. 546, pp. 121, 150. House v. Adams, 48 Penn. St. 261, p. 110. . v. Elliott, 6 Ohio St. 497. p. 73. Housego v. Cowne, 2 M. & W. 348, p. 118. Howard v. Ires, 1 Hill, 263, p. 132. Howe v. Bradley, 19 Me. 31, p. 128. Howell v. Ashmore, 2 Zabr. 261, p. 40. Hubbard v. Matthews, 54 N. Y. 50, p. 101, 125. Hughes v. Lane, 11 111. 123, pp. 3D, 45. V. Wilkinson, 37 Miss. 482, p. 35. Hultz v. Ackley, 63 Penn. St. 142, p. 33 Hunt v. Maybee, 7 N. Y. 266, p. 151. Hurst v. Larpin, 21 Iowa, 484, p. 73. Hurt i: McCartney, 18 111. 129, p. 182. Hutcheon v. Mannington, 6 Vesey, 823, p. 137. Hutchinson v. Rust, 2 Gratt. 394, p. 155. 350 TABLE OF CASES. Ingram v. Forster, 2 Smith, 243, p. 96. Ireland v. Kip, 11 Johns. 231, p. 127. Irvine v. Lowry, 14 Peters, 293, p. 86. J. Jackson v. Gumaer, 2 Cow. 552, p. 30. v. Shepard, 2 Johns-. 77, p. 28. Jacoway v. Gault, 20 Ark. 190, p. 29. James v. Wade, 21 La. An. 548, p. 110. Jameson v. Swinton, 2 Camp. 373, p. 123. Jameson v. Swinton, 2 Taunt. 224, p. 132. Jansen . McCahill, 22 Cal. 563, p. 42. Jarboe v. Colvin, 4 Bush, 70, p. 79. Jarvis v. Garnett, 39 Mo. 271, p. 107. Jenks v. Doylestown Bank, 4 Watts & S. 505, p. 141. Johnson v. Clarke, 22 Ga. 541, p. 69. v. Cocks, 12 Ark. 672, pp. 81, 163. v. McGehee, 1 Ala. 186, p. 33. v. Prewitt, 32 Mo. 553, p. 37. Johnston v. Haines, 2 Ohio, 55, p. 32. Jones v. Bach, 48 Barb. 568, p. 31. v. Berryhill, 25 Iowa, 289, p. 152. v. Fales, 4 Mass. 245, p. 109. v. Lewis, 8 Watts. & S. 14, p. 157. Jordan v. Corey, 2 Ind. 385, pp. 39, 41. Jourdanv. Jourdan, 9 S. & R.26S, p. 40. Juniata Bank v. Hale, 16 Serg. & R. 167, pp. 101, 119. K. Kaufman v. Barringer, 20 La. An. 419, p. 1)3. Kavanaugh v. Day, 10 R. I. 393, p. 41. Keefer v. Mason, 36 111. 406, pp. 20, (.'2. Keichline v. Keichline, 54 Penn-. St. 75, p. 28. Keisker v. Ayres, 46 Cal. 82, p. 76. Kellogg v. Vickory, 1 Wend. 408, p. 37. Kelly v. Duulap, 3 Penn. St. 136, p. 28. Kemp v. Porter, 7 Ala. 138, p. 33. Kenyon v. Virgil, 3 Johns. 540, p. 65. Kern v. Von Phul, 7 Minn. 426, p. 143. Kerr v. Russell, 69 111. 666, pp. 46, 155, 156 Ketcirum v. Barber, 4 Hill, 224, p. 148. Kidder v. Blaisdell, 45 Me. 4(51, p. 72. Kilgore v. Bulkley, 14 Conn. 362, p. 121. King v. Crowell, 61 Me. 244, pp. 103, 108, 131. v. Scriveners' Co. 10 B. & C. 518, pp. 16, 20. v. State, 15 Ind. 64, p. 78. v. Vance, 46 Ind. 246, p. 48. Kirksey v. Bates, 7 Porter, 529, p. 139. Kirtland v. Wanzer, 2 Duer, 278, p. 145. Kisskadden v. Grant, 1 Kan. 328, p. 79. Kleber v. Block, 17 Ind. 294, p. 66. Kleinnman v. Boernstein, 32 Mo. 311. p. 128. Klockenbaum. v. Pierson, 16 Cal. 375, p. 121. Knapp v. Duclo, 1 Mich. 1ST. P. 189, p. 63. Knight v. Jones, 21 Mich. 161. p. 86. v. Nichols, 34 Me. 208, pp. 69, 70. Kuhland v. Sedgwick, 17 Cal. 123, p. 67. Kuhtman v. Brown, 4 Rich. 479, p. 75. Ladow v. Groom. 1 Denio, 429, p. 65. Laird v. Scott, 5 Heisk, 314, p. 43. Lane v. Morse, 6 How. Pr. 394, p. 64. Lang v. Gale, 1 M. & S. Ill, p. 105. Lansing v. Coley, 13 Abb. Pr. 272, p. 145. Lawrence v. Dougherty, 5 Yerg. 453, p. 86. Lawson v. Farmers' Bank, 1 Ohio St. 20o, pp. 132, 133. v. Pickney, 40 ST. Y. Superior Ct. 187, p. 147. Layman v. Brown, 1 Disney, 75, p. 144. Learned v. Riley, 14 Allen, lOi), p. 35. Lee v. Buford, 4 Mete. Ky. 7, p. 151. Leftley v. Mills, 4 T. R. itO, pp. 99, 105, Leftwich v. Keal, 7 W. Va. 569, p. 43. Lennig v. Tobey, 4 Penn. L. Jour. 275, p. 133. Lenox v. Leverett, 10 Mass. 1, p. 114. Lewis v. Bakewell, 6 La. An. 359, p. 126. v. Goinpertz, 6 M & W. 400, p. 121. w. Waters, 3 H. & McH. 430, p. 39. Lewiston Falls Bank u. Leonard, 43 Me. 144, p. 153. Lickmon v. Harding, 65 HI. 505, p. 156. Liggett v. Weed, 7 Kan. 273, pp. 88, 97. Little v. Slackford, 1 Mood. & M. 171, p. 85. Littlehalew. Maberry, 43 Me. 264, p. 116. Lindo v. Unsworth, 2 Camp. 602, p. 133. Livingstou v. McDonald, 9 Ohio, 168, p. 32. Lloyd v. McGarr, 3 Barr, 474, p. 137. Lockwood v. Crawford, 18 Conn. 361, pp. 108, 121. Logan v. Steele, 3 Bibb, 230, p. 74. Looinis v. Pulver, 9 Johns. 244, p. 102. Lord v. Appleton, 15 Me. 170, p. 128. Louden v. Blythe, 16 Penn. St. 532, p. 45. Louisiana State Bank v. Ellery, 16 Mart. 87, p. 125. Love v. Taylor, 26 Miss. 567, p. 41. Lowery v. Scott, 24 Wend. 358, p. 130. Lunt v. Adams, 17 Me. 230, p. 104. Lyle v. Elwood, 15 Eq. 67, p. 63. Lynch v. Livingston, 6 N. Y. 422, p. 33. Lynes v. State, 32 Tex. 677, p. 18. Lyon v. Barrows, 13 Iowa, 428, p. 82. v. Ely, 24 Conn. 507, p. 75. Madison, etc. R. R. Co. v. Whitesel, 11 Ind. 55, p. 228. Magruder v. Bank, 3 Pet. 87, p. 101. TABLE OF CASES. 361 Magruder v- Bank of Washington, 9 Wheat. 598, p. 90. Maiden Bank v. Baldwin. 13 Gray. 154, p. 107. Mallinkrodt, Ex parte, 20 Mo. 493, p. 76. Manchester Bank v. Fellows, 8 Fost. 313, p. 127. Mann v. Birchard, 40 Yt. 32G, p. 69. Marr v. Johnston, 9 Yerg. 1, p. 130. Marrison v. White, 16 La. An. 100, p. 81. Marston v. Bank of Mobile, 10 Ala. 284, p. 134. v. Brashaw, 18 Mich. 81, p. 33. Martin v. Chauntry, 2 Stra. 1271, p. 86. v. Coppock, 4 Neb. 173, p. 80. v. Ingersoll, 8 Pick. 1, p. 133. r. Winslow, 2 Mason, 241, p. 102. Mason v. Brock, 12 111. 273, p. 36. Masper v. Pedesclaux, 22 La. An. 227, p. 126. Massachusetts Bank?;. Oliver, lOCush. 557. p. 12G. Matthews v. Haydon, 2 Esp. 509, p. 100. May v. Norton, 11 La. An. 714, p. 74. McAndrew v. Radwav, 34 N. Y. 511, p. 153 McBryde v. Wilkinson, 29 Ala. 662, p. 39. McCandless v. Engle, 51 Penn. St. 309, p. 40. McCann v. Edwards, 6 B. Mon. "208, p. 40. McCleary v. Edwards, 27 Barb. 239, p. 82. McClintock v. Crick, 4 Iowa, 453, p. 76. McConnick v. Trotter, 10 S. & R. 94, p. 86. McCrary v. Austell, 46 Ga. 450, p. 160. McCraven v. McGuire, 23 Miss. 100, p. 33. McCrillis v. McCrillis, 38 Vt. 135, p. 71. McCune v. Belt, 38 Mo. 291, p. 120. McDaniels v. Flower B. Mfg. Co. 22 Vt. 274, p. 202. McDermaid v. Russell, 41 HI. 490, p. 65. McEntire v. Henderson, 1 Penn. St. 402, p. 74. McFarland v . Pico, 8 CaL 627, pp. 121. 143. Mclntire v. Ward, 5 Binn. 296, p. 39. McKee, Ex parte, 18 Mo. 5. Sheldon . Beiiham, 4 Hill, 129, p. 100. v. Stryker, 42 Barb. 284, p. 30. v. Wood, 2 Bosw. 267, p. 72. Shelton v. Berry, 19 Tex. 154, pp. 63, 65. Shephard v. Carriel, 19 111. 313, p. 29. Sherer v. Easton Bank, 33 Penn. St. 134, p. 143. Shipman v. Green, 1 C. E. Green (N. JT) 251, p. 118. Schorr v. Woodlief, 23 La. An. 473, p. 137. Short v. Conlee, 28 111. 219. pp. 28, 30. Shropshire v. Stevenson, 17 Ga. 622, p. 74. Sibley v. Johnson, 1 Mich. 380, pp. 40, 41. Sice v. Cunningham, 1 Cow. 397, p. 102. Silliman v. Cummins, 13 Ohio, 116, p. 42. Simpson v. Carleton, 1 Allen, 109, p. 72. v. White, 40 N. H. 540, p. 143. Sims v. Handley, 1 How. Miss. 1, p. 143. Skinner v. Fletcher, 1 Ired. 313, p. 41. v. Fulton, 39 111. 484, p. 36. Slaughter v. Rivenbark, 35 Tex. 68, p. 69. Smart v. Howe, 3 Mich. 590, p. G6. Smedes v. Utica Bank, 20 Johns. 384, p. 124. Smith v. Curlee, 59 111. 221. p. 111. v. Elliott, 39 Tex. 201, p. 43. . Garden, 28 Wis. 685, p. 31. NOTARIES 23. Smith v. Little, 10 N. H. 526, p. 121. v. McMannis, 7 Yerg. 483, p. 143. v. Roach, 7 B. Mon. 17, pp. 88. 134. v. Van Gilder, 26 Ark. 527, p. 32. v. Whiting, 12 Mass. 0, p. 11:0. v. Williams, 28 Miss. 48, p. 43. Snow v. Perkins, 2 Mich. 238, p. 120. Snyder v. Snyder, 50 Ind. 492, p. 73. Spann v. Baltzell, 1 Fla. 301, p. 143. Spear v. Pratt, 2 Hill, 582, p. 93. Sprague v. Tyson, 44 Ala. 340, p. 130. Stafford v. Yates, 18 Johns. 327, p. 123. Stainback v. Bank, 11 Gratt. 260, pp. 89, 100. Stanton v. Blossom, 14 Mass. 116, p. 123. f. But.' on, 7 Conn. 527, p. 281. Starke v. Etheridge, 71 N. C. 243, p. 37. Starr v. Sanford, 45 Penn. St. 1-J3, p. 146. Startup v. McDonald, 6 M. & G. 602, p. 105. State Bank v. Hinchcliffe, 4 Ark. 444, p. 65. v. Hurd, 12 Mass. 171, p. 107. v. Napier, ffHump. 270, p. 109. State v. Green, 15 N. J. L. 83, p. 65. v. Kimball, 50 Me. 40i), p. 80. i'. Lee, 21 Ohio St. 662, p. 2U. Steele v. Dart, 6 Ala. 798, p. 73. Stephenson v. Dickson, 24 Penn. St. 148, p. 133. Stetson v. Lyons, 34 Ala. 140, p. 71. Stevens v. Blunt, 7 Mass. 240, p. 86. v. Doe, 6 Blackf. 475, p. 42. v. Hampton, 4(5 'Mo. 404, p. 33. Stewart v. Eden, 2 Caines, 121, pp. 100, 128. Stiles v. Allen, 5 Allen, 320, p. 73. Stimpson v. Brooks, 3 Blatch. C. C. 456, p. 63. Stocken v. Collin, 9 C. & P. 653, p. 121. Stone v. Montgomery, 35 Miss. 83, p. 155. v. Stillwell, 23 Ark. 444, p. 72. Stonebreaker v. Short, 8 Penn. St. 155, p. 72. Stout v. Slattery, 12 111. 162, p. 67. Straker v. Graham, 4 M. & W. 721, p. 102. Strange v. Price, 10 Ad. & El. 125, p. 121. Strong v. King, 35 111. 9, p. 104. v. Smith, 3 McLean, 362, p. 29. Stuart v. Dutton, 39 111. 91, p. 39. Sullivan v. Deadman, 19 Ark. 484, p. 139. Sumner v. Bowen, 2 Wis. 524, p. 146. T. Talbot v. Simpson, 1 Pet. C. C. 188, p. 42. Taylor v. Hatch, 12 Johns. 340, p. 66. Thayer v. Torrey, 37 N. J. L. 338, p. 40. Thomas v. Meier, 18 Mo. 573, p. 42. v. Shoemaker, 6 Watts & S. 179, p. 105. . Wheeler, 47 Mo. 363, p. 71. 354 TABLE OF CASES. Thompson v. Burhans, 61 N. Y. 52, p. 64. v. Haile, 12 Tex. 139, p. 79. v. Ketcham, 4 Johns. 285, p. 107. v. Morgan, 6 Minn. 292, p. 37. r. Sloan, 23 Wend. 71, p. 86. '.Williams, 14 Cal. 160, pp. 118, 119. Thurman v. Cameron, 24 Wend. 87, p. 30. Ticonic Bank v. Stackpole, 41 Me. 302, pp. 112, 149. Toulmin v. Heidelberg, 32 Miss. 268, p. 43. Townsend v. Lorain Bank, 2 Ohio St. 345, pp. Ill, 122, 154. Townsley v. Sumrall, 2 Pet. 178, pp. 137, 138. Trask v. Martin, 1 E. D. Smith, 505, p. 87. Tredick v. Wendell, 1 N. H. 80, p. 108. Triggs v. Newnham, 1 Car. & P. 631, p. 104. Tubbs v. Gatewood, 26 Ark. 128, p. 44. Tully v. Davis, 30 111. 103, p. 30. Tunis v. Withrow, 10 Iowa, 305, p. 67. Tunnor. Lague, 2 Johns. Cas. 1, p. 110. Turner v. Rogers, 8 Ind. 139, pp. 113, 146, 148. Turpin v. Eagle Creek Co. 48 Ind. 45, p. 65. Tyler v. Bank of Kentucky, 7 T. B. Mon. 557, p. 25. Tyson v. Oliver, 43 Ala. 455, p. 130. U. Union Bank v. Foulkes, 2 Sneed, 555, p. 153. v. Humphreys, 48 Me. 172, pp. 139, 149. v. Hyde, 6 , 6 Wheat. 572, p. 111. D. Middlebrook, 33 Conn. 95, p. 146. v. Willis, 8 Met. 504, p. 101. U. S. v. Bank of Metropolis, 15 Pet. 377, p. 97. v. Barker, 1 Paine C. C. 156, p. 92. v. Barker, 4 Wash. C. C. 464, pp. 88,138. v. Barker, 12 Wheat. 559, p. 132. v. Carneal, 2 Pet. 543, p. 122. V. Vance v. Schuyler, 6 HI. 160, pp. 29, 32, 33. Van Ormanv. McGregor, 23 Iowa, 300, p. 155. Van Vechtenw. Pruyn, 13 K Y. 549, pp. 128, 129. Vincent v. People, 5 Park. Cr. 88, p. 64. Vreeland v. Hyde, 2 Hall, 463, p. 102. W. Wagner v. Kenner, 2 Rob. La. 120, p. 105. Walker v. Bank, 9 N. Y. 582, p. 94. v. Bank of Augusta. 3 Ga. 486. p. 148. v. Barren, 4 Minn. 253, p. 75. v. State Bank, 8 Miss. 704, p. 121. v. Stetson, 19 Ohio St. 400, p. 88. Wallace v. Agry, 4 Mason, 336, pp. 91, 122. Walmsley v. Acton, 44 Barb. 312, p. 115. o. Rivers, 34 Iowa, 463, p. 148. Wain v. Freedland, 2 Miles, 161, p. 83. Walsh v. Dart, 23 Wis. 334, p. 91. Wanger v. Tupper, 8 How. U. S. 234. p. 111. Ward v. Mclntosh, 12 Ohio St. 231, p. 39. v. Northern Bank, 14 B. Mon. 283, p. 109. Warner v. Hardy, 6 Md. 525, p. 30. Warren Bank v. Parker, 8 Gray, 221, p. 134. Warren v. Gilman, 5 Shep. 360, p. 122. v. Scott, 32 Iowa, 22, p. b6. v. Wairen, 10 Me. 259, p. 139. Warnick v. Crane, 4 Den. 4GO, p. 151. Waskern v. Diamond, 1 Hemp. 701, p, 69. Watts v. Womack, 44 Ala. 605, p. 65. Way v. Butterworth, 108 Mass. 509, p. 107. Webbu. Fairmauer, 3 M. & W. 473, p. 87. v. Mears, 45 Pa. St. 222, p. 88. Wegerslofe v. Keene, 1 Stra. 214, p. 97. Welborn v. Swain, 22 Ind. 194, p. 73. Welsh v. Barrett, 15 Mass. 380, p. 154. Wells v. Jackson, etc. Co. 47 N.H. 235, p. 82. v. Whitehead, 15 Wend. 527, p. 114. West Point Iron Co. v. Reymert, 45 N. Y. 703, p. 30. West River Bank ?;. Taylor, 7 Bosw. 466, p. 132. Wheaton v. Wilmarth, 13 Met. 422, p. 121. White v. Englehard, 10 Miss. 38, p. 146. Whitney v. Sears, 16 Vt. 587, p. 69. Whitwell u.Johnson, 17 Mass. 449, pp. 109, 132. Wickersham v. Reeves, 1 Iowa, 413, p. 30. Wilkinsv. Jadis, 2 Barn. & Ad. 188, p. 104. Willard v. Cramer, 36 Iowa, 22, p. 35. v. Judd, 15 Johns. 531, p. 67. Williams v. Bank of U. S. 2 Pet. 97, pp. 118, 128. v. Chadbourne, 6 Cal. 559, p. 71. v. Putnam, 14 2s r . H. 540, p. 112. TABLE OP CASES. 355 Williams v. Robson, 6 Ohio St. 510, p. 156. v. Turner, 2 Bay S. 0. 411, p. 139. Willink v. Miles, Pet. C. C. 429, p. 32. Willis ?;. Green, 5 Hill, 232, p. 101. Wilson v. Smith, 5 Yerg. 379, p. 74. v. Traer, 20 Iowa, 231, p. 33. Winchester v. Winchester, 4 Humph. 51, p. 152. Wineham Bank v. Norton, 22 Conn. 213, p. 110. Wixom v. Stephens, 17 Mich. 518, p. 79. Wolf v. Burgess, 59 Mo. 583, p. 130. Wood v. Corl, 4 Met. 203, p. 131. v. Harrow, 11 Johns. 434, p. 37. v. Jefferson Co. Bank, 9 Cow. 204, p. (50. Watson, 53 Me. 300, p. 120. Woodin v. Foster, 16 Barb. 146, p. 109. Woodruff v. McHarry, 56 111. 218, p. 33. Woodthorpe v. Lawes, 2 M. & W. 109, p. 124. Wooley v. Clements, 11 Ala. 220, p. 106. Worcester Bank v. Wells, 8 Met. 107, p. 94. Worley u.Waldran, 3 Sneed, 548, p. 143. Wright v. Barnard, 2 Esp. 700, p. 137. v. Bundy, 11 IndT 398, p. 155. Wynn v. Alden, 4 Den. 163, p. 154. Y. Young v. Young, 18 Minn. 90, pp. 64, 07. v. Bryan, C Wheat. 146, p. 111. v. Bennett, 7 Bush, 477, p. 116. INDEX. INDEX. Acceptance presentment for, 87. by form, how made, 88. rights of drawee on, 90. effect of unreasonable delay, 90. to be made in writing, 93. by whom to be written, 94. when made by agent, rights of holder, 94. by agent, how made, 94. statute provisions in certain States, 95. time given for, 95. partial or conditional, effect of, 96. effect of qualified acceptance, 97. for honor, 97. for honor of drawer, 98. Acceptance -waived effect of .words, 88. Acknowledgment of deeds, before whom may be taken, 16. effect of, 28. literal compliance with forms not necessary, 29. essentials of certificate, 29. identity of party, 30. identity, how proved, 31. as to officer taking, 31. to be subscribed by officer, 33. where officer a party in interest, 33. deputy, when may take, 33. place where made, 33. necessity of an official seal, 38. certificate of probate deeds, 37. by married woman, theory of the law, 38. how required under the common law, 38. requisites of certificate, 38. private examination, how conducted, 40. wife to be made to know contents, 41. certificate to state "voluntary free act," 42. that wife does not wish to retract, 44. effect of certificate as against wife, 45. liability of notary for invalid act of, 4(>. statute provisions in certain States, 48. taken out of State, but within United States, 59. taken out of United States in foreign countries, 60. in foreign countries, by whom may be taken, 60. 360 INDEX. Acknowledgment Continued. general provisions as to, 61. taken in Canada, 61. in Great Britain and Ireland, 61. how attested, 160. forms of, 170-20G. Actuarius term denned, 2. Affidavit power to take, 19. power under United States laws, 21. under pension laws, 22: required by mining laws, 22. authority of notaries to take, 62. definition of, 63. venue in, presumptions as to, 64. to be signed by Affiant, 64. oath and jurat to, 65. officers qualified to take, 63. as to the use of a seal, 67. to be filed by commissioner of deeds, 161. forms of, 207-214. Agent may make presentment of bill, 88. effect of delay by, 92. acceptance by, 94, presumption of authority of. 98. who may act as, 100. notice of dishonor by, 124. Agreement See FORMS. Agora origin of term, 2. Alabama qualifications essential to appointment as notary, 12. notaries cannot take depositions, 19. who may discharge duties of notary, 19. requirements of notarial seal, 24. certificate of acknowledgment of married woman, 44. statute provisions as to acknowledgments, 48. as to acceptances, 95. time allowed for acceptance, 96. acceptance, when presumed, 96. term of office of commissioner of deeds, 159. form of acknowledgment, 170. form of depositions, 215. Application for office of commissioner of deeds, 159. Appointment of notaries, ancient rule of, 5. in modern' times appointed by executive, 9. rule in England, 9. in United States, power of State governors, 10. qualifications for, 12. period of office, 13. of commissioners of deeds, 158. number of commissioners to each State, 159. term of office of commissioners, 159. publication of appointments, 165. Argentarii term defined, 1. Arizona acknowledgment of deeds out of Territory, 59. term of office of commissioners for, 160. IXDEX. 361 Arizona Continued. fee paid for commission, 162. form of acknowledgment, 171. form for deposition, 216. Arkansas appointment of notaries in, 11. notarial seal of, 25. certificate of acknowledgment of married woman. 44. statute provisions as to acknowledgments, 48. acceptance of bill under statute, 95. time allowed for acceptance, 96. acceptance, when presumed, 96. term of office of commissioner of deeds. 159. forms of acknowledgment, 171. form for deposition, 217. Attorney-at-law when may take affidavit, 67. Authentication of acts of commissioner of deeds, 163. Assignment See FORMS. Bank usage as to notice of maturity of note, 109. as to notice of dishonor, 127. Bills at sight statutory provisions as to, 87. where not entitled to grace, 87. Bill of exchange presentment, when to be made, 87. when to be protested, 111. Bond of notary, where required, 12. required of commissioner of deeds. 161. form of, 321. See FORMS. Bill of sale See FORMS. o. California qualifications essential to appointment as notary, "12. term of office of notary, 14. preservation of records of, 23. noterial seal of, 25. authority of justice of peace, 35. certificate to acknowledgment by married woman, 41. certificate, what to state, 42. insufficiency of certificate, 47. liability of notary on official bond, 47. statute provisions as to acknowledgment of deeds, 48. acknowledgments taken out of State, 59. in foreign countries, who may take, 60. who may take affidavits, 67. sight-bills not entitled to grace, 87. acceptance of bills, statute provisions, 95. time allowed for acceptance, 96. acceptance, when presumed, 96. time within which demand to be made, 103. protest, by whom to be made, 113. essentials of protest, 115. 362 INDEX. California Continued. what to appear in certificate, 116. notice of dishonor by mail, how given, 132. notarial protest, what to state, 143. term of office of commissioner of deeds. 160. official seal of commissioner, 162. fees paid to commissioner, 1G4. publication of appointment of commissioner, 165. forms of acknowledgment for, 173-175. form for deposition, 218. Canada acknowledgment of deeds in, 61. forms of acknowledgments in, 204, 205. Cancellarius term denned, 4. Caption to deposition, 69. Certification of official character of officer, 80. what States require it, 81. Certificate of acknowledgment of notary, 28. omissions fatal, 28. essentials of, 29. literal compliance not necessary, 29. identification of party, 30. locality must appear in, 34. when defective, 36. of acknowledgment of married woman, 38. when sufficient, 42. statute provisions regarding, 140. of what evidence, 142. character of as evidence, 143. mode of rebuttal of, 146. Certificate of probate of deed, 37. Chancellor origin of term, 4. Clerk may make demand for payment, 99. Colorado period of appointment, 14. statute provisions as to acknowledgments, 49. seal not to affect negotiability of paper, 85. sight-bills not entitled to. grace, 87. forms of acknowledgment for, 175. form for deposition, 219. Commission form of in England, 9. Commissioner of deeds a State officer, 32. appointment of, 158. qualifications of, 158. number appointed in certain States, 159. period for which appointed, 159. power of, 160. conditions precedent to be complied with, 161. fee paid for commission, 161. requirements as to seal, 162. authentication of acts, 163. fees of, 164. appointments published, 165. Common law married women, how regarded by, 38. notarial acts as evidence, 138. notarial certificates as evidence, 139. INDEX. 363 Computation of time in reference to maturity of negotiable paper, 105. rule regarding Sundays and holidays, 106. Conditions precedent to right of commissioner to act, 101. Connecticut term of office of notary, 14. extent of jurisdiction of notary, 20. records of notary, 23. presumption of official authority, 35. statute provisions as to acknowledgments, 49. sight-bills not entitled to grace, 57. term of office of commissioner of deeds, 100. forms of acknowledgment for, 176. form for deposition, 219. Contract See FORMS. Cursores term defined, 1. Customs and usages to govern on presentment for acceptance, 92. of banks as to notice of dishonor, 127. D. Dakota a seal not to affect negotiability of paper, 85. form of acknowledgment for, 176. form for deposition, 220. Date of protest to appear in certificate, 115. of certificate of notice, 151. Days of grace allowance of, 87. Deed unacknowledged, validity of, 29. See FORMS. Definitions affidavit, 63. agentarii, 1. cancellarius, 4. cursores, 1. deposition, 63. month construed, 105. notarius, notarii, 1, 2. notary a scribe, 1. scribaj, 1. tabellio, 2. tabelliones, 1. tabularii, 1. tribunus, 2. Delaware term of office of notary, 14. notaries cannot take depositions, 19. notarial records as evidence, 23. notarial seal, 25. certificate of acknowledgment of married woman, 42. statute provisions as to acknowledgments, 49. acknowledgment of deeds out of State, 59. sight-bills not entitled to grace, 87. notarial protest as evidence, 141. term of office of commissioner of deeds, 1GO. fees paid commissioner of deeds, 104. forms of acknowledgment for, 177. form for deposition, 221. 364 INDEX. Demand duty of notary, 85. mode of making, 108. Depositions power of notary to take, 10. power under United States laws, 21. how taken, 23. may be taken by notaries, 68. as to the caption of, 69. mistakes in names in caption, 69. caption should state at whose request taken, 70. certificate to, generally, 71. immaterial omissions in certificate, 71. as to 1 swearing witness, 72. identity of witness, 73. writing out, who authorized, 73. manner of writing it out, 74. language of it, 74. presence of parties, 75. place where taken, 76. powers of notaries in taking, 76. adjournment during taking, 78. should be subscribed, 79. certification of official character of officer, 80. certification required in certain States, 81. return of, 82. Deputy clerk may take acknowledgments, 33. Dishonor fact to appear in notice of protest, 121. sufficiency of, 122. District of Columbia certificate of acknowledgment by married woman, 44. forms of acknowledgment for, 178. E. England non-negotiable paper, what is, 85. Evidence admission of affidavits, 62. by deposition, 64, notarial acts as, 136. judicial notice of notarial seal, 136. certificate and seal of notary, 137. notarial acts under common law, 138. certificate of protest under common law, 139. certificate, of what facts evidence, 142. character of evidence, 143, 154. rebutting certificate, 145, 155. certificate need not state at whose request made, 151. certificate to be dated, 351. certificate to be under seal, 152. presumptions in favor of, 153. parol evidence affecting certificate, 153. impeachment for fraud or collusion, 156. notarial certificate made out of State, 146. sufficiency of certificate, 147. as to manner of giving notice, 149. when notice sent by mail, 150. INDEX. 365 Evidence -Continued. certificate to show notice of dishonor. 150. records of deceased notary, 154. faith and credit given to official acts, 163. Exceptor office of, 2. Exchange rise or fall in rate, effect of, 91. Excuses for failure to demand, 110. F. Faith and credit given to public documents, 3 to notarial acts, 137 to official acts, 155. to notarial certificate, 155. impeachment of certificate for fraud or collusion, 150. Pee paid by commissioner for appointment, 159, Ifi2. paid to commissioner of deeds, 164. Florida appointment of notary, period of service, 12. amount of bond given by notary, 13. powers of notary, 18. notaries cannot take depositions, 19. records of, as evidence, 23. statute provisions as to acknowledgments, 50. acknowledgments taken out of State, 59. seal not to affect negotiability of paper, 85. notarial protest as evidence, 141. term of office of commissioner of deeds, 150. forms of acknowledgment for, 179, 180 forms for deposition, 222. Forms of acknowledgments, 170-206. affidavits, 207-214. agreement or contract, 300. for sale of real estate, 302. for warranty deed, 303. assignment to creditors, 312. of judgment, 310. of mortgage, New York, 288. California, 289. Illinois, 290. of lease, 319, 320. of patent, 312. bill of sale, 298. bond, 309. of notary. 321. building contract, 306-308. chattel mortgage, 293-29P. contract See Agreement, deed, warranty, full covenant, 273. warranty, California form, 275. warranty, Illinois form, 271 warranty, Kentucky form, 277. warranty, Kansas form, 277. quit-claim, New York form, 278. 366 INDEX. Forms Continued. deed, quit-claim, Illinois form, 278. quit-claim, Michigan form, 27'J. bond for, 301. depositions, 215-2G3. homestead, claim affidavit for, 212. soldier's claim affidavit for, 213. Indian affidavit for, 213. lease, general form, 297. . California forms, 314, 315. Ohio forms, 316, 317. with security, 318. assignment of, 31D, 320. patent, affidavit of applicant, 214. power of attorney-general, 298. special, 298. pre-emption claim, 211, 212. proof of claim in bankruptcy, 209, 210. proof of claim against estate, 211. protest for non-acceptance, 264, 265. non-payment, 264, 265, 266, 267. notice of, 268. mortgage, New York form, 279. California form, 282. Illinois form, 283-285. with dower, Ohio, 385. Michigan form, 286. Indiana, 288. assignment of, 288-290. release of, 290. satisfaction of, 291, 292. of chattels, 294. release of mortgage, 290. satisfaction of mortgage, 291, 292. ship's protest, 270. entry or note of, 271.*.. regular or extended form, 272. verification of pleading, 207. will, 321. of appointment of notary in England, 9. requisites of deposition, 68. of caption to deposition, 69. names of parties, 69. what caption should state, 70. certificate to deposition, 71. immaterial omissions, 71. of notice of protest, 119. omissions in notice of protest fatal, 120. of certificate in Iowa, 148. Forum origin of term, 2, France classes of notaries in, 14. Fraud impeachment of certificate for, lOo. INDEX. 367 G. Georgia appointment of notaries in, 11. qualifications necessary, 13. period for which appointed, 14. powers of notaries in, 18. notaries cannot take depositions, 19. notarial seal, 25. statute powers as to acknowledgments, 50. acknowledgments out of State, 59. seal not to affect negotiability of paper, 85. sight-bills not entitled to grace, 87. protest, when not necessary, 118. term of office of commissioner of deeds, 159. powers of commissioners of deeds, 160. acknowledgments, how attested, 160. forms of acknowledgment for, 180. form for deposition, 223. Governor power of appointment of notary, 10. Grace days of, where allowed, 87. Great Britain and Ireland acknowledgments of deeds in, 61. H. History of office of notary origin remote, 1. under Roman law, 1. functions of the tabelliones, 2. authenticity of acts, 3. when acts obtained public recognition, 4. of notaries in England, 5. in reign of Henry V, 6. acts of solemn nature executed before notaries, 6. effect of Reformation as to office and duties, 7. Holder of negotiable paper, rights of, 133. Holidays rule as to'computation of time, 106. I. Idaho acknowledgment of deeds out of Territory, 59. form of acknowledgment for, 181. form for deposition, 224. Identity of party to appear on notarial certificate, 30. how proved, 31. Illinois appointment of notaries, 10, 11. amount of bond, 13. period for which appointed, 14. records of notaries as evidence, 24. notarial seal, 25. essentials to validity of acknowledgments, 36. statute provisions as to acknowledgments, 50. 368 INDEX. Illinois Continued. seal not to affect negotiability of paper, 85. sight-bills not entitled to grace, 87. impeachment of certificate for fraud, 156. statute provisions as to qualifications of commissioners, 159. number of commissioners appointed, 159. term of office of commissioner, 160. fee paid by commissioner of deeds, 162. seal of commissioner, 162. form of acknowledgment for, 182. form for deposition, 225. Impeachment of official acts for fraud or collusion, 156. Indiana appointment of notaries, 10. amount of bond of notaries, 13. period for which appointed, 14. records of, 23. notarial seal, 25. certificate of acknowledgment of married woman, 41. statute provisions as to acknowledgments, 51. form of affidavit, 66. protest, when not necessary, 118. effect of notarial certificate as evidence, 146. requisites of notarial certificate, 148. term of office of commissioner of deeds, 160. form of acknowledgment for, 182. form for deposition, 227.' Iowa qualifications for appointment as notary, 12. term of office of notary, 14. records of notary, 23. notarial seal, 24, 25. essentials of certificate to acknowledgments, 34. statute provisions as to acknowledgments, 51. use of notarial seal, 67. sufficiency of notarial certificate, 148. requisites of seal to certificate, 152. term of office of commissioner, 160. seal of commissioner of deeds, 162. fees paid to commissioners, 164. publication of list of commissioners, 165. form of acknowledgment for, 183. form f6r deposition, 229. J. Joint makers demand on, how made, 101. Judicial notice of acts of commissioner of deeds, 32. of who are county officers, 34. of notarial seal, 136. Jurisdiction restriction to locality, 20. Justice of the peace powers of notaries as, 18, 19. authority to take acknowledgments, 35. Judgment assignment of. See FORMS. INDEX. 369 Kansas amount of bond, of notaries, 13. period for -which appointed, 14. notarial seal, 25. statute provisions as to acknowledgments, 52. seal not to affect negotiability of paper, 85. acceptances, statute provisions, 95. time allowed for acceptance, 96. acceptance, when presumed, 96. notarial protests as evidence, 141. term of office of commissioner of deeds, 159. form of acknowledgment, 183. form for deposition, 230. Kentucky appointment of notaries, 11. amount of bond of notary, 13. period for which appointed, 14. notaries no power to take acknowledgments, 16, notarial seal, 25. validity of acknowledgments, 36. acknowledgment by married woman, 45. statute provisions as to acknowledgments, 52. notice of dishonor, where to be sent, 131. term of office of commissioners of deeds, 160. form of acknowledgment for, 183. form for deposition, 232. JL. Laches effect of delay in presentment, 91. Lease See FORMS. Local customs to govern time for presentment, 92, Logographi term defined, 1. Louisiana appointment of notaries, 11. amount of bond of notary, 13. powers and duties of notaries, 18. where may take depositions, 19. notarial seal of, 25. statute provisions as to acknowledgments, 62. acknowledgments out of State, 59. sight-bills not entitled to grace, 87. forms of acknowledgment for, 184-186. form for deposition, 233. Lower Canada who may discharge duties of notary, 19. M. Marriages power of notaries to solemnize, 18. Married -woman acknowledgment of deed by, 38. requisites of certificate to, 38. 370 INDEX. Married woman Continued. compliance with statute requirements, 38. certificate of acknowledgement, what to state, 44. Maine notaries, restriction as to powers of, 16. acknowledgment of deeds, 17. notarial seal, 2G. statute provisions as to acknowledgments, 53. sufficiency of notarial certificate, 149. term of office of commissioners, 159. form of acknowledgment for, 186. form for deposition, 234. Maryland appointment of notaries, 11. qualifications for appointment, 12. amount of bond of notary, 13. power to take acknowledgments, 16, 17, 53. notaries cannot take depositions, 19. extent of jurisdiction of notaries, 21. notarial records, 24. notarial seal, 26. oral testimony of notarial certificate, 154. commissioners, how appointed, 158. term of office of commissioner, 159. form of acknowledgment for, 186. form for deposition, 235. Massachusetts appointment of notaries, 11. for what term appointed, 14. notaries cannot take depositions, 19. who may take acknowledgments, 35, 36. statute provisions as to acknowledgments, 53. seal not to affect negotiability of paper, 85. acceptance, time allowed for, 96. when presumed, 96. notarial protest as evidence, 141. commissioners of deeds, how appointed, 158. seal of commissioner of deeds, 163. form of acknowledgmerit.for, 187. form of deposition, 237. Michigan appointment of notaries, 11. amount of bond of notary, 13. period for which appointed, 14. notaries cannot take depositions, 19. extent of jurisdiction of notaries, 21. certificate of acknowledgment by married woman, 41. statute provisions as to acknowledgments, 54. note, when negotiable, 86. acceptance of bill, statute provisions, 95. notarial certificate, how rebutted, 145. application for office, and fee for appointment as commissioner, 159. term of office of commissioner, 160. form of acknowledgment for, 188. form of deposition, 238. Mining laws affidavit required by, 22. Minnesota appointment of notaries, 11. amount of bonds of notaries, 13. INDEX. 371 Minnesota Continued. term of office of notary, 14. notarial seal, 26. statute provisions as to acknowledgments, 54. who may take affidavits, 67. acceptance, statute provisions, 95. term of office of commissioner of deeds, 159. form of acknowledgment for, 189. form of deposition, 239. Mississippi amount of bond of notary, 1& powers of notaries, 17. who to act as notaries, 18. notaries cannot take depositions, 19. notarial seal, 26. statute provisions as to acknowledgments, 54. acknowledgments out of State, 59. notarial protest as evidence, 141. term of office of commissioner of deeds, 160. fee paid for commission, 162. form of acknowledgment for, 189. form of deposition, 240. Missouri amount of bond of notary. 13. term of office of notary, 14. notarial seal, 26. statute provisions as to acknowledgments, 54. sight-bills not entitled to grace, 87. acceptance, statute provisions, 95. time allowed for acceptance, 96. acceptance, when presumed, 96. notarial protest as evidence, 141. term of office of commissioner of deeds, 159. sufficiency of demand for payment, 108. commissioner of deeds, how appointed, 158. term of office of commissioner, 160. form of acknowledgment for, 190. form of deposition, 241. Montana form of deposition in, 243. Month construction of term, 105. Mortgage See FOKMS. Nebraska amount of bond of notary, 13. term of office of notary, 14. notarial seal, 26. statute provisions as to acknowledgmentSy 55. seal not to affect negotiability of paper, 85. term of office of commissioner of deeds, 160. seal of commissioner, 163. form of acknowledgment, 192. form of deposition in, 243. Negotiable paper duties of notaries relative to, 84. qualities essential to, 85. presentment for acceptance, 87. 372 INDEX. Negotiable paper Continued. presentment for payment, 98. computation of time on, 165. when considered dishonored, 108. protest "for dishonor, 110. notice of protest of, 118. liability of notary for defective protest, 134. Nevada amount of bond of notary, 13. term of office of notary, 14. notarial seal, 26. certificate of acknowledgment by married woman, 45. statute provisions as to acknowledgments, 55. acceptance to be in writing, 95. term of office of commissioner of deeds, 160. fee paid for commission, 162. form of acknowledgment, 191. form of deposition in, 244. New Hampshire appointment of notary, 11. term of office of notary, 14. notarial records, 24. statute provisions as to acknowledgments^?. requisites of foreign certificate, 146. requisites of notarial certificate, 148. notice sent by mail, 150. requisites of seal to certificate, 152. number of commissioners of deeds, 159. term of office of commissioners, 160. official acts, how authenticated, 163. seal of commissioner of deeds, 163. form of acknowledgment, 192. form of deposition in, 246. New Jersey notary, powers restricted, 16. acknowledgments before, when taken, 17. notaries cannot take depositions, 19. validity of affidavits by notaries formerly questioned, 20. statute provisions as to acknowledgments, 56. commissioner of deeds, how appointed, 158. term of office of commissioner, 160. fees paid commissioner, 164. form of acknowledgment for, 192. form of deposition in, 247. New Mexico acknowledgment of deeds out of Territory, 59. form of acknowledgment for, 193. New York appointment of notary, 11. term of office of notary, 14. notaries cannot take depositions, 19. extent of jurisdiction of notaries, 21. records of, as evidence, 23. notarial seal, 26. sufficiency of certificate of acknowledgment, 35. acknowledgment by married woman, 39. statute provisions as to acknowledgments, 56. acknowledgments out of State, 60. acknowledgments in foreign countries, 60. INDEX. New York Continued. note, when non-negotiable, 86. sight-bills not entitled to grace, 87. acceptance, what not sufficient, 94. must be in writing, 95. time allowed for acceptance, 96. when acceptance presumed, 96. notary's clerk cannot demand payment, 99. forms of acknowledgment for, 194-196. form of deposition in, 248. North Carolina acknowledgments, before whom taken, 17. power to administer oatlis, 20. notarial records, as evidence, 23. certificate of probate of deed, 37. statute provisions as to acknowledgments, 56. acknowledgments out of State, 59. seal not to affect negotiability of paper, 85. term of office of commissioner of deeds, 159. publication of list of commissioners, 165. form of acknowledgment for, 196. form of deposition in, 249. Notarial acts when first obtained public authority, 4. how obtained recognition, 4. authentication of treaties, 6. what essential to validity of, 27. as evidence, 136. certificate of acknowledgment, 154. Notarial protest as evidence, 141. Notarial records as evidence, 139. Notarial seal requirements of, 24, 25. conclusiveness of as evidence, 154. Notaries punishment under Scotch law, 4. nomination of, under common law, 5. before the Norman conquest, 5. appointments by the Pope, 5. restriction on Papal power, by statute of praemunire, 5. in the reign of Henry V, 6. in the reign of Henry VUl, 7. in time of Edward IV, 6. under Francis I, of France, 7. under the Reformation, 7. classes of in France, 14. power and duties of, 14. functions of, 15. power under United States laws, 21. power to take depositions, 22. extent of jurisdiction, 34. powers, how exercised, 76. form of bond, 321. Notarii term defined, 1. Notarius term defined, 2. Notary defined as a scribe, 1. character of functions in reign of James I, 8. in Scotland before the Reformation, 8. 373 374 INDEX. Notary Continued. qualifications necessary, 10. liability for invalid acknowledgment, 46. Notice by mail when and how made, 129. on temporary residents, 129. place where to be sent, 130. Notice of demand for payment, 122. who to give notice, 123. notice by agent, 124. Notice of dishonor by mail, 127. who to receive notice, 125. when to be personal, 126. by personal service, 128. service by mail, when and how made, 129L service on temporary resident, 129. place where to be sent, 130. time within which to be given, 131. to be shown by certificate, 150. sufficiency of notice, 151. Notice of maturity bank usages, 109. Notice of protest duty of notary, 85. sufficiency of, 114. to whom must be given, 118, manner of giving, 118. form of, 119. as to description of instrument, 119. fact of dishonor to appear, 121. notice of demand for payment, 122. party, to give notice, 123, notice by agent, 124. who to receive notice, 125. when parties reside in same place, 126. who regarded as in same place, 127. personal service of, 128. parties residing in different places, 129. service on temporary residents, 129. place where to be sent, 130. time within which to be given, 131. what hour is reasonable, 133. intervening holidays counted out, 133. allowance of a day to notify predecessor, 133L liability of notary for failure to make, 134. notice, how given, 149. when sent by mail, 150. forms of, 268-270. o. Oath power to administer, 19, 62. power conferred by statute, 20. oath and jurat to affidavit, 65. to be taken by commissioner of deeds, 161. Office and officers origin of office of notary remote, 1. history of office of notary, 1. INDEX. 375 Office and officers Continued. duties of in general, 16. States where notaries do not take depositions, 16. where may act as justices of the peace, 18. where notaries take depositions, 19. power to take affidavits, 19. local jurisdiction of notaries, 20. powers and duties under United States laws, 21. powers and duties under bankrupt laws, 22. affidavits required by mining laws, 22. notaries may take depositions in certain cases, 22. duty of notaries as to keeping records, 23. requirements as to notarial seals, 24. authority to take affidavits, G2. who may take affidavits, GG. to take depositions, 68. duties relative to negotiable paper, 84. See TERM OF OFFICE. Official acts how authenticated, 67. Official bonds of notaries, 12. of commissioner of deeds, 161. Official character certificate of, 80. certification, in what States required, 81. Official seal requisites of. 24. what constitutes, 24. necessity for, 35. Ohio appointment of notaries in, 10. amount of bond of notary, 13. term of office of notary, 14. notarial seal of, 26. certificate of acknowledgment made by married woman, 43 statute provisions as to acknowledgments, 56. seal not to affect negotiable paper, 85. sight-bills not entitled to grace, 87. notaries' certificates as evidence, 144. term of office of commissioner of deeds, 160. fee paid by commissioner, 162. fees paid to commissioners, 164. form of acknowledgment for, 198. form of deposition, 250. Oregon amount of bond of notary, 13. term of office of notary, 14. notarial records, as evidence, 24. statute provisions as to acknowledgments, 57. acceptance to be in writing, 95. term of office of commissioner of deeds, 160. seal of commissioner of deeds, 163. form of acknowledgment for, 198. form of deposition in, 250. Parol evidence how far may affect certificate of notary, 153. Partners demand on, how made, 101. 376 INDEX. Partnership who to receive notice of dishonor, 125. notice in case of death, 125. notice in case of bankruptcy, 126. Pennsylvania qualifications requisite for appointment as notary, 12. amount of bond of notary, 13. term of office of notary, 14. notarial seal of, 26. presumption of authority to take acknowledgments, 32. statute provisions as to acknowledgments, 57. sight-bills not entitled to grace, 87. notarial protest as evidence, 141. effect of certificate of notary as evidence, 146. requisites of certificate of notary, 147. term of office of commissioner of deeds, 159. form of acknowledgment for, 198. form of deposition in, 253. Performance time of construed, 104. Personal service of notice how made, 127. Place of presentment for payment, 106. to appear in certificate of protest, 115. Powers of notaries in taking depositions, 76. of commissioners of deeds, 158. Power of attorney See FOBMS. Presentment duty of notary in making, 85. by whom to be made, 88. where to be made, 89. mode of making, 90. time within which to be made, 90. excuses for delay in making, 91. time of day in which to be made, 92. delay by agent, how regarded, 92. effect of local customs and usages, 92. presentment and demand to appear on certificate, 116. Presentment for acceptance of negotiable paper, 87. what should be presented, 87. by and of whom should be .made, 88. place where should be made, 89. mode of making, 90. time within which should be made, 90. excuses for delay, 91. time of day when to be made, 92. delay by agent, how regarded, 92. acceptance, how given, 93. statute provisions as to mode of, 95. time given to drawee, 95. partial or conditional acceptance, 96. acceptance supra protest, 97. Presentment for payment of negotiable paper, 98. by whom demand to be made, 98. demand by notary or clerk, 99. to whom to be made" 100. in case acceptor or maker is dead, 101. ' in case of partners, 101. when acceptor or maker cannot be found. 101. INDEX 377 Presentment for payment Continued, time for making presentment, 102. as to time of day for demand, 103. computation of time, 105. rule regarding Sundays and holidays, 106. place of making presentment, 106. mode of demanding payment, 108. paper, when payable at bank, 108. what excuses failure to demand, 110. Presumptions in favor of notarial certificates, 153. Primicerius office of, 3. Promissory notes to be presented. 112. See NEGOTIABLE PAPER. Probate deeds certificate of, 37. Protest duty of notary as to, 85. of bill, when right ensues, 96. in case of deatli of party, 101. in case of concealment, 101. meaning and effect of protest, 110. what instruments subject to, 111. under seal, effect of, 111. of foreign promissory notes, 112. by whom should be made, 113. manner of making, 113. place where made, 113. formal preparation of, 114. contents and particulars of, 115. date of, 115. as to place of presentment, 115. presentment and demand must appear, 116. when protest unnecessary, 117. notice of, 118. faith and credit given to notarial acts, 138. of what evidence, 147. forms of, 264-272. Public acts of commissioners, how authenticated, 163. Public documents origin of, 3. requisites to credibility of, 3. mode of authentication, 3. Public officers who may take acknowledgments, 60. in 'foreign countries, who may take acknowledgments, 60. Q. Qualification for office of notary, 12. for office of commissioner of deeds, 158. period allowed for, 161. R. Reasonable hours of business, what construed as, 92. Reasonable time as a question of fact, 91. 378 INDEX. Records duty as to preservation of, 23. of deceased notary, as evidence, 154. Reformation effect of as to notaries, 7. Rhode Island appointment of notaries, 11. records of as evidence, 23. certificate of acknowledgment made by married woman, 45. statute of provisions as to acknowledgments, 57. sight-bills not entitled to grace, 87. notarial protest as evidence, 141. form of acknowledgment for, 200. form of deposition in, 253. Release See FORMS. s. Scribee definition of, 1. Scriptures forenses origin of, 3. Seal what deemed official, 22. requirements of, 24. authentication of official acts, 32. requirements of statute as to use of, 67. judicial notice taken of official seal, 136. required to certificate of notary, 152. of commissioners of deeds to be provided, 161. Secondary evidence records of deceased notary, 139, South Carolina term of office of notary, 12. notarial records as evidence, 23. notarial seal, 27. statute provisions as to acknowledgments, 58. term of office of commissioner of deeds, 159. publication of appointments, 165. form of acknowledgment for, 200. form of deposition in, 254. Statutory provisions as to protest, 111. as to acknowledgments by married women, 38, Subscription to affidavit, 65. to deposition, 79. Sunday rule regarding, as to negotiable paper, 106,. T. Tabellio term defined, 2. Tabelliones term defined, L functions of office, 2. credit and authenticity of acts, 3. documents by, how made, 4. Tabularii term defined, 1. Tennessee appointment of notaries in, 11. amount of bond of notary, 13. term of office of notary, 14. notarial seal, requisites of, 27. statute provisions as to acknowledgments, 53. seal not to affect negotiability of paper, 85. INDEX. 379 Tennessee Continued. sight-bills not entitled to grace, 87. form of acknowledgment for, 201. form of deposition in, 255. Term of office of notaries, 14. of commissioners of deeds, 159. Texas appointment of notaries in, 11. amount of bond of notary, 13. period for which appointed, 14. powers of notaries, 18. notarial seal, requisites of, 27. certificate of acknowledgment made by married woman, 45. statute provisions as to acknowledgments, 58. term of office of commissioner of deeds, 159. form of acknowedgment for, 201. f onn of deposition in, 255. Time when presentment should be made, 92. given for acceptance of bill, 95. day for demand of payment, 103. computation of, 105. rule as to intervening Sundays and holidays, 106. Tribunus term defined, 2. u. Usage effect of, 92. of bank, notice of maturity ot note, 109. Utah acknowledgments out of territory, 59. United States Courts form of deposition in, 262. V Venue presumption of in affidavit, 64. Vermont appointment of notaries in, 11. records of notary as evidence, 23. notarial seal, 27. statute provisions as to acknowledgments, 58. sight-bills not entitled to grace, 87. term of office of commissioner of deeds, 159. form of acknowledgment for, 202. form of deposition in, 257. Virginia term of office of notaries, 12. amount of bond of notary, 13. powers of notaries, 18. records of notaries as evidence, 23. certificate of. acknowledgment made by married women, 45. statute provisions as to acknowledgments, 58. term of office of commissioner of deeds, 160. form of acknowledgment for, 202. form of deposition in, 257. 380 INDEX. w. Washington Territory acknowledgment taken out of Territory, 59. form of acknowledgment for, 203. form of deposition in, 258. West Virginia term of office of notary, 12. amount of bond of notary, 13. notarial seal, 27. certificate of acknowledgment made by married woman, 45. statute provisions as to acknowledgments, 58. term of office of commissioner of deeds, 159. fee paid by commissioners, 162. seal of commissioners of deeds, 163. form of acknowledgment for, 203. form of deposition in, 259. Wills by whom attested under Roman law, 4. forma of, 320, 321. Wisconsin qualifications for appointment as notary, 12. amount of bond of notary, 13. term of office of notary, 14. extent of jurisdiction of notary, 21. notarial seal, 27. presumption as to authority to take acknowledgments, 32. statute provisions as to acknowledgment of deeds, 58. acceptance to be in writing, 95. term of office of commissioner of deeds, 159. form of acknowledgment for, 204. form of deposition in, 259. Wyoming form of deposition in, 261. A 000 668 428 6