Frederick Mortensen Hinch Edward Mills John.

American notary and commissioner of deeds manual: the general and statutory ... online

. (page 10 of 50)
Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 10 of 50)
Font size
QR-code for this ebook


i90L Oaaadar— ELIGIBILITY — stated in some provinces to be, a
British subject, not a barrister or solicitor. Citizenship to be proved by
affidavit. In Manitoba and Ontario, applicant is subject to examination
before judge of supreme or county court. APPOINTMENT — by the lieu-
tenant-governor in council. In some provinces for all or part of province.
TEBM — during lieutenant-governor's pleasure. In Alberta and Saskat-
chewan, « two years. COMMISSION — fee — ^$5.00, payable to examiner
where examinations are held. To act in entire province, $20.00; lesser
jurisdiction, $10.00; Alberta, $10.00. Payable to certain revenue funds.
POWEBS AND DUTIES—to attest commercial instruments for protest
and perform usual duties of office; take acknowledgments and affidavits.
LIABILITIES — in Alberta and Saskatchewan, must state expiration of
date of commission, or sustain fine of $10.00 and costs. OFFICIAL SEAL
— must be provided.



Digitized by VjOOQIC



CHAPTER n.
AFFIDAVITS, OATHS AND AFFIBMATIONS.

§ 91. Oaths, AfSrmations and Affidavits; Definitions and
Distinctions. — ^An oath is an outward pledge given by the
person that his attestation (or promise) is made under an
immediate sense of his responsibility to God. In its broadest
sense, the term is used to include all forms of attestation by
which a party signifies that he is bound in conscience to per-
form the act faithfully and truly. In a more restricted sense,
it excludes all those forms of attestation or promise which
are not accompanied by an imprecation.*

An aflSrmation is a solemn religious asseveration in the
nature of an oath.* In nearly all states, when an oath is re-
quired, and the party required to swear has religious scruples
against swearing, aflSrmations are permitted. The statute re-
quiring the administration of an oath is deemed complied
with by an affirmation in judicial form.*

An affidavit is a statement or declaration reduced to writing,
and sworn or affirmed to before some officer who has authority

IQye. Law Diet. p. 643. mode in this world, or is reserved
An oath is a solemn appeal to for the future state of being,
the Supreme Being, in attesta- cannot affeet that question as the
tion of the truth of some state- sum of the matter is a belief
ment, and an outward pledge that that God is the avenger of false-
one's testimony is given under an hood^ Goolsby v. State, — Ala.
immediate sense of responsibility App. — , 86 So. 137.
to God. State v. Jones, 28 Idaho An oath is defined by statute
428, 154 Pac. 378. as every mode of attesting the
An oath is a solemn adjuration truth of that which is stated,
to God to punish the affiant if which is authorized by law. Town
he swears falsely. The sanction of Checotah v. Town of Eufaula,
of the oath is a beUef that the 31 Okla. 85, 119 Pac. 1014.
Supreme Being wiU punish false- ^Cyc. Law Diet
hood; and whether that punish- 8 See post, i 116 et seq. See
ment is administered by remorse also U. S. Bev. St. 1878, sec. 1.
of conscience or in any other

68



Digitized by VjOOQIC



§ 93]



AFFIDAVITS, OATHS AND AFFIRMATIONS.



69



to administer an oath. It is not synonymous with *'oath" but
includes the oath.*

An affidavit differs from a deposition in this, that in the
latter the opposite party has an opportunity to cross-examine
the witness, whereas an affidavit is always taken ex parieJ^

§ 92. Who May Administer Oaths; Power of Notaries.

§ 93. — ^In GteneraL — ^Usually, the statutes provide what
officers are authorized to administer oaths, specifically naming
them,' and the statutory requisites in this regard should al-
ways be consulted.'' In the absence of express statutory au-
thority, an officer cannot administer an oath to himself.*

At the common law, notaries public had no authority to
administer oaths, and this power is an added one that must
be conferred by statute.® The power is not one of the inci-
dents of the office, and cannot be presumed to exist.^' This
rule is important for the reason that a notary in a foreign
state or country, who certifies to administering an oath, must
also append a certificate of his authority to administer such
oath. Otherwise, if the paper is involved in litigation, the
courts will presume the law of the foreign state to be like the
common law, and as a consequence the notary will be held



4Cyc. Law Diet. p. 8<J.

An affidavit is not only a
written oath, but a statement of
the things sworn to. State v.
Howard, 91 Wash. 481, 158 Pac.
104.

An affidavit is a statement in
writing declared to be true by the
party who makes it and certified
to have been sworn to before him
by the officer who takes it.
Partridge v. Mechanics' Nat. Bank
of Burlington, 77 N. J. Eq. 208,
77 Atl. 410.

An affidavit is a written declara-
tion under oath by a party before
some person who has authority
under the law to administer oaths,
made without notice to the adverse
party in a case. Crenshaw y.



MiUer, 111 Fed. 450.

6Cyc. Law Diet. p. 36. See
also Harris v. Lester, 80 HI. 307;
Partridge v. Mechanics' Nat.
Bank of Burlington, 77 N. J. Eq.
208, 77 Atl. 410.

6 See post, § 116 et scq.

7 See ante, i 16, where the im-
proper administration of an oath
resulted in a notary being a mere
de facto officer. •

8 Phillips v. State, 5 Ga. App.
597, 63 S. E. 667.

©Anderson v. Com. (Ky.), 117 8.
W. 364; Greeley v. Greeley, 118
Me. 491, 107 Atl. 296; Holbrook
v. Libby, 113 Me. 389, 94 Atl. 482,
L. R. A. 1196A 1167.

lOKeefer v. Mason, 36 HL 406.



Digitized by VjOOQIC



70 NOTARIES PUBLIC. [§ 94

without authority to administer the oath.** In practically •
all the states and territories, the statutes authorize notaries
to administer oaths, however," and the power exists as a
general rule.*' It has been said that the general presumption
is that a notary can administer oaths, unless proof to the
contrary is offered.** Some of the statutes authorize the
notaries to take depositions and do all other acts in relation to
taking testimony, and to take acknowledgments and affidavits.
The United States statutes confer no general authority to
notaries to administer oaths nor as to the manner of ad-
ministering.** By the Illinois statute, a notary can administer
oaths in all cases, and proof of his official character is nM
required, except in a county other than where the suit may be
pending, as courts take judicial cognizance of all who are
authorized to administer oaths within their county. *•

A court of equity has power to direct that commissioners
appointed under the provisions of a decree to appraise real
estate and set off homestead may take the oath for the per-
formance of their duties before any officer empowered by law
to administer oaths generally, and notaries public are thus
empowered.*''

In order to properly administer oaths the notary must be
qualified to act, and must possess those requisites of eligibility,
which the statutes provide.**

§ 94. — Oaths Under United States Laws.— In all cases in

which, under the laws of the United States, oaths or acknowl-

11 Holbrook v. Libby, 118 Me. Cr. R. e02, 68 S. W. 513.

389, 94 Atl. 482, L. B. A. 1916 A MPinkham v. Cockell, 77 Mich.

1167. 265, 43 N. W. 921; Crone v.

18 See ante, |i 37-90. Angell, 14 Mich. 340.

English notaries always con- l«U. S. v. Hall, 131 U. 8. 50,

sidered themselves authorized to 33 L. Ed. 97.

administer oaths, and whatever WDyer v. Flint, 21 HL 80, 74

donbt existed as to this power Am. Dec. 73; Stent v. Slattery,

was set at rest by the statute of 12 HI. 162; Rowley v. Berrian, 12

5 ft 6 Wm. IV, ch. 62, sec. 15. HI. 200.

Wood V. St. Paul City By. Co., iTDillman v. Will County Nat

42 Minn. 411, 44 N. W. 308, 7 L. B. Bank, 138 HI. 282, 27 N. E. 1090;

A. 149. Id. 139 HI. 269, 28 N. E. 946; Id.

18 Edwards v. McKay, 73 HL 36 HL App. 272.

570; CampbeU v. State, 43 Tex. USee ante, || 8-10, 16.



Digitized by VjOOQIC



§ 99] AFFIDAVITS, OATHS AND AFFIRMATIONS. 71

edgments may now be taken or made before any justice of
the peace of any state or territory, or in the District of Colum-
bia, they may hereafter be also taken or made by or before
any notary public duly appointed in any state, district or
territory, or any of the commissioners of the circuit courts,
and, when certified under the hand and official seal of such
notary or commissioner, shall have the same force and effect
as if taken or made by or before such justice of the peace.^^

§ 95. —United States Oovenunent Claima.— A notary pub-
lic is authorized to administer oaths in claims against the
government for back pay, pensions or bounty cases.*®

§ 96. —Adverse Claimants to United States Mineral Lands.

— ^An adverse claimant to mineral lands, if residing or at the
time being beyond the limits of the district wherein the claim
is situated, may make oath to the adverse claim before any
notary public of such state or territory. Applicants for min-
eral patents may make oath or affidavit required for proof of
citizenship before the same.*^

§ 97. —Applicants for United States Pensions.— A notary
public is authorized to administer and certify any oath or
affirmation relating to any pension or application therefor.
In doing so, he must authenticate his act by his seal of office.**

§ 96. —Oaths of National Bank Officers.— The oath of af-
firmation required by section 5211 of the Revised Statutes,
verifying the returns made by national banks to the comp-
troller of the currency, when taken before a notary public
properly authorized and commissioned by the state in which
such notary resides and the bank is located, or any other offi-
cer having an official seal, authorized in such state to admin-
ister oaths, shall be a sufficient verification as contemplated
by said section 5211, provided, that the officer administering
the oath is not an officer of the bank.**

§ 99. Disqualification Preventing Notary from Acting. —
As has been noted, notaries may be disqualified from acting in

WU. 8. Bev. St. 1878, sec. 1778. WU. 8. B©v. St. Supp. vol. 2,
SOU. S. Bev. St. Supp. p. 762. p. 60.

HU. 8. Bev. St. Supp. p. 338. «»U. 8. Bev. St. Supp. voL 1,

p. 318.



Digitized by VjOOQIC



NOTARIES PUBLIC.



[§ ^'^



transactions in which they are interested,** but in respect to
the administration of oaths, a distinction seems to exist be-
tween such administration and the taking of an acknowledg-
ment. It has been held that a cashier of a bank is not
disqualified from taking an afiSdavit in an attachment suit^
brought to collect a debt due the bank.'* A notary who is
superintendent of the special assessment department of a city
is not disqualified from administering an oath to any person.**
The oath may be administered to a fellow commissioner, for
filing and use in the proceeding.*^ Also a notary is not dis-
qualified from administering an oath to, and attesting the
affidavit of, his father.**

In a large number of states, attorneys who are notaries are
prohibited from administering oaths to their clients, or taking
their affidavits, in respect to the cases pending in court,** and
in some states the practice is not favored,*** the rule being one
of judicial policy, which may be waived by the court.*^ In
some cases the prohibition exists because of statutory
provisions.** In other states, there is no such prohibition,**



»4Ante, i 21.

S5 First Nat. Bank of Broadway
V. Cootes, 74 W. Va. 112, Sl 8. B.
844.

•6 McChesDey v. City of Chicago,
169 111. 223, 42 N. E. 894.

•7 Peck V. People, 153 111. 454,
39 N. E. 117.

U Kirkland v. Ferris, 145 Ga.
93, 88 8. E. 680.

W Yeogley v. Webb, 86 Ind. 424;
Maroosis v. Catalano, 98 Neb. 284,
152 N. W. 559; Leavitt & Milroy
Co. V. Rosenberg Bros. Sb Co., 83
Ohio St. 230, 93 N. E. 904.

SO Savage v. Parker, 63 Fla.
1002, 43 So. 507; PhiUips ▼.
PhUlips, 185 111. 629, 57 N. E. 796;
Ilollenbeck v. Detrick, 162 lU. 392,
44 N. E. 732; Linck v. City of
Litchfield, 141 HI. 469, 31 N. E.
123; City of Chicago v. Bisso, 204
ni. App. 162; City of Chicago v.
Simonetti, 203 Dl. App. 279; City



of Chicago v. Boiler, 203 Bl. App.
281; In re Ungaro's Will, 88 N.
J. Eq. 25, 102 Atl. 244; Shanholtzer
V. Thompson, 24 Okla. 198, 103
Pac 695, 138 Am. St. Bep. 877.

•I In re Ungaro's Will, 88 N. J.
Eq. 26, 102 Atl. 244.

An affidavit taken before a
notary who is attorney for a
party it voidable, being subject
to amendment. Shanholtzer v.
Thompson, 24 Okla. 198, 103 Pac.
595, 138 Am. St. Bep. 877.

WComp. Laws 1897, sec. 2640;
Timm v. Cass Circuit Judge, 192
Mich. 508, 158 N. W. 1028.

MBeavia v. Cowell, 56 Cal. 588;
Schoon V. Sunderland, 39 Kan.
758, 18 Pac. 913; McDonald y.
Willis, 143 Mass. 452, 9 N. E.
835; Toung v. Young, 18 Minn.
90 (GU. 72); Mossberger v.
Mossberger, 202 Mo. App. 271, 216
S. W. 760; Forest Oil Co. t.



Digitized by VjOOQIC



§ 100] AFFIDAVITS, OATHS AND AFFIRMATIONS. 73

and it has been held that however improper and unprofessional
it may be for attorneys in a case pending, or about to begin,
to administer an oath to an affidavit, sworn to by his client in
such suit, there is nothing in the law that forbids it .•* In
states where attorneys are prohibited from acting, the rule
usually applies to the attorney of record in the case. The
prohibition has been held not to extend to a wife of an attor-
ney ,•• or to another attorney who is employed as clerk in the
office of the attorney of record in the case.*^ Also, the objec-
tion does not extend to preliminary matters, and an attorney
may administer an oath to his client on an affidavit to be filed
in the suit.*'' Where the record does not disclose that the
acting attorney and the notary signing the affidavit are one
and the same, the identity of the two men should not be in-
ferred from the identity of names.** An attorney having acted
for a party in a justice court is not precluded from acting as
notary by taking the parties' oath, in subsequent matters.**

§ 100. Manner of Administration of Oath; Sufficiency in
General. — ^The purpose of an oath is to secure the truth, and
hence any form which is calculated to appeal to the conscience
of the person to whom it is administered, and by which he
signifies that his conscience is bound, is sufficient.** Usually
the statutes specifically state the form of words to be used,
and the person sworn is required to raise his right hand, or
place such hand on the Holy Bible, when the words are re-
peated by the officer administering the oath. The affiant then
signifies his acceptance of the oath by replying in the af-
firmative.*^ As has been noted from the definitions of oaths,
there is a solemn adjuration to God, an appeal to the Supreme



Wilflon, — Tex. Civ. App. — , 178 8. lU. 616, 87 N. B. 848.

W. 626. But Bee Garza v. State, 37 Evans v. Schriver Laundry

65 Tex. Cr. R. 476, 145 S. W. 590 Co., 57 111. App. 150.

(where an affidavit of witness on 38 Bradley v. Claudon, 45 Dl.

a motion for new trial was held App. 326.

illegal). 89 Lynch Co. v. Wayne Circuit

84 Evans v. Schriver Laundry ^udge, 129 Mich. 110, 88 N. W.

Co., 57 ni. App. 160. 387.

85Timm v. Cass Circuit Judge, 40 State v. Hulsman, 147 Iowa

192 Mich. 508, 158 N. W. 1028. 672, 126 N. W. 700.

86 MacKenzie v. MacKenzie, 238 41 See post, § 116 et $eq.



Digitized by VjOOQIC



74 NOTARIES PUBLIC. [§ 100

Being, by which the conscience of the affiant is bound. The
effect is necessarily based on the affiant's belief in God. A
person who affirms such belief, is a good witness.** Formerly
one having no religion, believing in no God, and not account-
able here or hereafter, could not become a witness.** The
difference in form permitted is based on the beliefs of the
person who is sworn. Oaths are administered in the manner
most bidding on the conscience of the individual, and the
statutes frequently state that such manner of administration
must be employed. Oaths taken by the uplifted hand only,
are valid.** K the affiant has conscientious objections to
swearing in the usual manner, the affirmation is permitted,
whereby the person swears to the truth "under the pains and
penalties of perjury."**

To make a valid oath, for the falsity of which perjury will
lie, there must be in some form, in the presence of an officer
authorized to administer it, an unequivocal and present act,
by which the affiant consciously takes upon himself the obliga-
tions of an oath. The delivery of an affidavit to an officer,
signed, is not such an act.** An officer who disregards the
statutory form of oath, and has affiants sign affidavits, merely
asking them, **Is that true!" does not perform his duty.*''
Too much importance cannot be placed upon this necessity of
form, and the strict adherence to the statutory requisites.
In the large American cities, and especially in governmental
and municipal offices, there has prevailed, and does prevail,
a tendency to disregard form and ceremony when official busi-
ness is involved. This cannot be allowed to the extent of
doing away with the statutes especially in so far as they



43 Noble V. People, Breeso (HI.) McKinney v. People, 2 €Hlm. (lU.)
54. 540, 43 Am. Dec. 65.

48 Central Military Tract B. Co. 45 See post, i 116 et aeq.

V. Bockafellow, 17 HI. 541. 46 O'Reilly v. People, 86 N. Y.

44 Gill v. CaldweU, Breeae (HI.) 154, 10 Abb. N. C. 53, 40 Am.
53. Bep. 525.

An oath taken with the uplifted 47 Bookman y. City of New

hand, and swearing by the ever- York, 200 N. Y. 58, 98 N. E. 190

living God, is effectual. If any (where a notary was deprived of

objection, it should be made be- his fees for dereliction of duty

fore, not after, the verdiet. in this respect).



Digitized by VjOOQIC



§ 101] AFFIDAVITS, OATHS AND AFFIRMATIONS. 75

pertain to the administration of oaths upon which the crime
of perjury may be based.**

K the oath is properly administered, it cannot be evaded be-
cause of some slight deviation from the form used, or because
of some irregularity. The mere failure to raise the hand has
been held an irregularity which did not invalidate the oath.**
and where a question arose as to whether the officer had re-
peated the words **So help you God,'' which was disputed,
the omission of such words was held immaterial.**

§ 101. Administration of Oath Over Telephone.— From the
manner of administering oaths, it is essential that the officer
see and know the person who takes the oath. There must be
some form and solemnity, and accordingly an oath cannot be
administered, or an affidavit taken over the telephone. Long-
distance swearing is not permitted. Telephonic affidavits are
unknown to the law.**

The reasons for this rule are self -apparent. If the statutory
requirement is that the oath be administered in the form most
binding on the conscience of the affiant, and in the personal
presence of the officer, the statute is not complied with even
though the officer knows the voice of the affiant.** If such
oaths are permitted, opportunities are afforded for fraud,
imposition and evasion of perjury. A host of questions may
arise as to the validity of the affidavit. If the officer or notary
takes the oath over the telephone, and later the paper involved,
or some other paper, is presented for his jurat, the officer
cannot know that it is the identical paper mentioned except
by hearsay. If a telephonic oath is attempted to be taken, a

4S Bookman ▼. City of New that the oath of a person was void

York, 200 N. Y. 53, 93 N. E. 190. because taken over the telephone.

49 State V. Day, 108 Minn. 121, The validity of such an oath
121 N. W. 611. was not decided, however, as the

50 State V. Hulsman, 147 Iowa court held that even if an oath
572, 126 N. W. 700. might be permitted to be admin-

61 Games v. Games, 138 Ga. 1, istered over the telephone, the

74 8. S. 785; Sullivan v. First notary was without power to act

Nat. Bank of Flatonia, 37 Tex. outside of his county.

Civ. App. 228, 83 S. W. 421. MSuUivan v. First Nat. Bank

In Fairbanks, Morse Sb Ck>. v. of Flatonia, 37 Tex. Civ. App.

QetcheU, 13 Gal. App. 458, 110 228, 83 S. W. 421.
Pac. 331^ the contention was made



Digitized by VjOOQIC



76 NOTARIES PUBLIC. [§ 102

question arises as to when the oath was administered, whether
at the time of the conversation or when the paper was signed.
Another question arises as to the place of administration,
whether it is the place where the afBant is, or where the
officer is. If the officer and afBant are in different counties,
which county will have jurisdiction of the perjury? Endless
confusion would result, and tempting chances for immunity
from identification or discovery would be held forth, if tele-
phonic oaths were permitted.**

§ 102. Form of Oath of United States Government Officers.—
Every person elected or appointed to any office of honor or
profit, either in the civil, military or naval service, excepting
the President and the persons embraced by the section follow-
ing, shall, before entering upon the duties of such office, and
before being entitled to any part of the salary or other emolu-
ments thereof, take and subscribe the following oath: **I,
A B, do solemnly swear (or affirm) that I have never volun-
tarily borne arms against the United States since I have been
a citizen thereof; that I have voluntarily given no aid, counte-
nance, counsel, or encouragement to persons engaged in
armed hostility thereto; that I have neither sought, nor ac-
cepted, nor attempted to exercise the functions of any office
whatever, under any authority, or pretended authority, in
hostility to the United States; that I have not yielded a volun-
tary support to any pretended government, authority, power,
or constitution within the United States, hostile or inimical
thereto. And I do further swear (or affirm)' that, to the best
of my knowledge and ability, I will support and defend the
Constitution of the United States against all enemies, foreign
and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any
mental reservation or purpose of evasion, and that I will well
and faithfully discharge the duties of the office on which I
am about to enter, so help me God."**

Whenever any person who is not rendered ineligible to office
by the provisions of the fourteenth amendment to the con-

W CarneB v. Games, 138* Ga. 1, Civ. App. 228, 83 S. W. 421.
74 S. B. 785; Sullivan v. First 54 U. S. Bev. St. 1878, sec. 1756.

Nat. Bank of Flatonia, 37 Tex.



Digitized by VjOOQIC



ii 103] APFIDAVITS, OATHS AND AFFIRMATIONS. 77

stitution is elected or appointed to any office of honor or
trust under the government of the United States, and is not
able, on account of his participation in the late rebellion, to
take the oath prescribed in the preceding section, he shall,
before entering upon the duties of his office, take and sub-
scribe in lieu of that oath the following oath: '*I, A B, do
solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, for-
eign and domestic; that I will bear true faith and allegiance
to the same; that I take this obligation freely, without any
mental reservation or purpose of evasion ; and that I will well
and faithfully discharge the duties of the office on which I
am about to enter. So help me God."** The oath of office
required by either of the two preceding sections may be taken
before any officer who is authorized by the laws of the United
States, or by the local municipal law, to administer oaths, in
the state, territory or district where such oath may be ad-
ministered.** The oath of office taken by amy person pursuant
to the requirements of section 1756, or of section 1757, shall
be delivered in by him to be preserved among the files of the
House of Congress, department, or court to which the office
in respect to which the oath is made may appertain.*''

§ 103. Oaihs of State and Other Officers.— Every member
of a state legislature, and every executive and judicial officer
of a state, shall, before he proceeds to execute the duties of his
office, take an oath in the following form, to wit: **I, A B, do
solemnly swear that I will support the Constitution of the
United States."** Such oath may be administered by any
person who, by the law of the state, is authorized to administer
the oath of office; and the person so administering such oath
shall cause a record or certificate thereof to be made in the
same manner as, by the law of the state, he is directed to



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 10 of 50)