Frederick Mortensen Hinch Edward Mills John.

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record or certify the oath of office.** The constitution ex-
pressly leaves it in the discretion of the legislature to exempt
*' inferior officers" from taking the prescribed oath of office.

66 U. S. Rev. St. 1S78, mcs. 68 U. S. Bev. St. 1878, sees. 1836,

1757, 1758, 1759. 1837.

66 Ibid. 60 Ibid.

67 Ibid.

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Township treasurers, school trustees, treasurers and directors
are inferior officers.^

§ 104. Oaths of Witnesses. — ^It is an established rule that all
witnesses who are examined upon atrial, civil or criminal, must
give their evidence under the sanction of an oath, or some
affirmation substituted in lieu thereof. If any person called as
a witness refuses or is unwilling to be sworn from alleged
conscientious motives, he will be allowed to make solemn re-
ligious afl&rmation, involving like appeal to God in the tr^th
of his testimony, in mode which he shall declare to be binding
on his conscience. All witnesses are to be sworn according to
the peculiar ceremonies of their religion, or in such manner
as they may deem binding on their own consciences; and if
the witness be not of Christian religion, the court will inquire
as to the form in which an oath is administered in his own
country or among those of his own faith, and will impose it
in that form.®^

§ 106. Administration of Oaths by United States Qovem-
ment Employees; Pees. — No oflBcer, clerk or employee of any
executive department who is also a notary public or other
ofScer authorized to administer oaths, can charge or receive
any fee or compensation for administering oaths of office to
employees of such department required to be taken on appoint-
ment or promotion therein.**

§ 106. Oaths of Oorporations.— A corporation cannot take
an oath.** Affidavits in behalf of a corporation are executed
by the officers,** or by agents or attorneys.**

§ 107. Necessity and Propriety of Affidavits.— Affidavits
are principally required in legal proceedings, but are also
used in business affairs to a large extent. ''It is a matter of

eo School Directors of Dist. No. 65 Under Bev. St. arts. 4928-

13 V. People, 79 HI. 511. 4964, authorizing affidavits by

eiBradner's Ev. (2nd Ed.), agents or attorneys whenever

p. 134. necessary corporations may make

6SU. S. Bev. St. Snpp., vol. 1, affidavits by their agents or at-

p. 791. tomeys. Simmons v. Campbell,

6S Fletcher's Cyc. Corp. sec. 864. — Tex. Civ. App. — , 213 S. W. 338.

64 Fletcher's Cyc. Corp. sect.
2061, 2069, 2086, 2094.

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common knowledge that from time immemorial, affidavits have
been used in business, though not required by law, whenever
a solemn, formal asseveration upon which others might rely
was intended. Familiar examples are affidavits touching
titles to property, affidavits of financial condition for the pur-
pose of obtaining credit, affidavits touching the pedigree of
animals, sworn bank statements, and statements of the finan-
cial condition of other corporations. "** It is in this latter
class of affidavits that notaries are principally interested, as
lawyers are usually employed when affidavits are required in
legal proceedings.

§ 108. Affidavits lEtequired in Examination of Abstracts of
Title. — ^In the examination of abstracts of title, notaries are
frequently called upon to prepare or take the affidavits of
individuals respecting matters raised by the examination of
title. Such affidavits may concern court proceedings, but
usually are the ex parte sworn statements of individuals re-
specting questions as to deaths, marriages, births, etc., con-
cerning which no other or better evidence can be found.
Family records are not universal, and even in states where
records are kept of births, deaths and marriages, the requisite
information cannot always be obtained. In such cases, resort
must be had to the next best and most available testimony,
which is usually supplied by the affidavit of some person set-
ting forth his knowledge of the matters under inquiry. Such
affidavits, though possessing no legal efficacy, should yet be
attended with the same solemnities and formalities that are
required in affidavits for use in court.*^

§ 109. Sufficiency of Affidavits.— A test of the sufficiency
of an affidavit is whether it is so clear and certain that an
indictment for perjury may be sustained on it, if false.** The
language used should be clear and unmistakable. If doubtful
or ambiguous expressions are used, the court may assume

66 state V. Howard, 91 Wash. Harris, 88 Cal. App. 214, 175 Pac.

481, 15.8 Pac. 104. 806; Jotter v. Marvin, 67 Colo.

67Warvelle on Abstracts (4th. 648, 189 Pac. 19; Clarke v. Wayne

Ed.), sec. 339. Circuit Judge, 198 Mich. 33, 159

6S8eUerB v. State, 162 Ala. 35, N. W. 387.
50 Sd. 340; Gee Chong Pong t.

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subsequently that the affiant wished to evade the stronger
expressions, and the language will be construed against the
person who made the affidavit.®* Also, the essential facts
should be fully and completely stated. In preparing affi-
davits as to facts required in the examination of abstracts of
title, it is frequently customary for the affiant to state that
a certain person is an ** unmarried man." This is an uiisatis-
factory manner of stating a fact of domestic condition, as it
raises an inquiry as to whether the person Was a divorcee, with
possible dower rights in his divorced spouse. The information
should be more definitely stated.''* If an affidavit showing
compliance with some statutory requisite is required, it should
be carefully drawn to show such compliance. A certificate
stating that notice **has been published five times in, etc.,'*
is insufficient when the statute provides that the notice shall
be published at least "five successive days."''* But, an affi-
davit to a claim for a mechanic 's lien, stating that the amount
claimed was due and payable from a date named in an exhibit,
which was stated to be a just and true statement of the
account due the petitioner, is a sufficient verification.'*

Ordinarily, it is not necessary to state in the affidavit that
the declaration is under oath, if the oath is in fact adminis-
tered. Such fact is shown by the officer's certificate or jurat.''*

§ 110. Statements on Information and Belief. — ^An affiant's
knowledge of matters stated in an affidavit must frequently
of necessity rest upon information derived from others, and,
when this is so, it is generally sufficient to aver, upon informa-
tion and belief, that such matters are true. In such cases
belief is considered an absolute term, and perjury may be
assigned on such affidavit if it is false.''* The distinction be-
tween what facts are known by an affiant of his own knowl-
edge and what are known on information and belief is a

69Mearns v. Harris, 45 App. TO Moore v. Parish, 163 HI. 93,

Cas. (D. 0.) 536. 45 N. E. 673.

70Warvelle on Abstracts (4th T8 Miller v. Garaker, 9 Ga. App.

Ed.), sec. 339. 255, 71 S. E. 9.

71 Toberg v. City of Chicago, 164 74 Jotter v. Marvin, 67 Colo. 648,

111. 572, 45 N. E. 1010; Evans 189 Pac. 19.
V. People, 139 Dl. 552, 28 N. E.


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rather technical one, and invades the field of evidence in
the trial of cases and suits at law. Notaries should, however,
be familiar with the matter, and its importance tends to
further emphasize the importance of a notary's duties. The
matter can be illustrated by the fact that an affiant, and in
fact every person, knows his own post office address of his
own knowledge, but he cannot know the post office address of
another, except through information. He may write to and
receive letters by mail from a person, or see the postman de-
livering letters to a person at a particular place, or hear such
person or another declare what his post office address is, or
learn the facts in some other way, but, in any event, his knowl-
edge must rest upon information and belief.''*

When a showing is required as to facts which are necessarily
matters of information and belief, the affidavit should state the
ultimate facts clearly and positively.''* The affiant must swear
peremptorily to the fact,'^ and to aver that the facts exist as
** affiant believes'' proves nothing.''* A deposition cannot be
objected to because sworn to on information and belief when
the answers are direct and positive statements, and are not
opinions or statements based on hearsay.''*

§ 111. Venue, or Oaption. — ^The caption is the heading of a
legal instrument, in which is shown when, where, and by what
authority it was taken, found, or executed.** The term is
principally used in referring to iadictments, but may be a
better term to express the heading of an affidavit than the
word ** venue." By a reference to the forms, it will be noted
that practically all certificates of notaries are entitled with

the words **State of , County of " Such

venue is ample evidence of the place where the oath was

76 Jotter V. Marvin, 67 Colo. 648, 77HefPron v. Bice, 40 lU. App.

189 Pac. 19. 244; Leigh v. Green, 64 Neb. 533,

76 Jotter V. Marvin, 67 Colo. 548, »0 N. W. 255, 101 Am. St. Bep. 592.

189 Pac. 19; MacKenzie v. Mac- 78WarveUe on Abstracts (4th

Kenzie, 238 Dl. 616, 87 N. E. 848; Ed.), sec. 840.

Shanholtzer v. Thompson, 24 Okla. 79Senter v. Teague, — Tex. Civ.

198, 103 Pac. 595, 138 Am. St -^PP- — ^^ S. Vf. 1045.

Rep. 877; Warvelle on Abstracts WCjc. Law Diet.
,'4th Ed.), sec. 340.

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administered.^^ The venue is generally regarded as a material
fact in all affidavits,** yet courts have exhibited great leniency
in this particular. It has been held that, notwithstanding
the instrument is without venue yet if it is subscribed by an
officer duly empowered to administer and certify oaths, it will
be presumed that the oath was taken only in the county where
the officer was authorized to act.** This presumption has
been held to obtain even where the venue or caption of the
affidavit stated a different county from that shown by the
notary's signature.** The validity of the affidavit cannot de-
pend on the caption or venue. Without any caption whatever,
the instrument may nevertheless be an affidavit.** Where the
certificate of publication of the delinquent tax list literally
follows the statute, no venue need be attached either to the
certificate or the oath.**

The courts' leniency in regard to the caption of affidavits
should not encourage notaries to omit such requisite, however,
and in fact all courts do not exhibit the same leniency. Thus
an affidavit entitled with the venue of one county, and signed
by a notary of another county, has been held void. The affi-
davit should show on its face that it was taken within the
jurisdiction of the officer who certifies.*''

§ 112. Signature of Affiant.— It has been held that a paper,
the truth of the contents of which has been sworn to, but
which has not been signed by the affiant, is not an affidavit.**
Other courts have held that the signing by the affiant is not
necessary,** that if a person swears to the affidavit, it makes

81 Hansford v. Snyder, 63 W. Va. 80 C. 0. A. 645, 151 Fed. 177, 10

198, 69 S. E. 975. Ann. Gas. 324; VC^arvelle on

Unless authorized by statute, an Abstracts (4th £d.), sec. 340.

officer can perform no official act M Barber v. DeFord, 109 Iowa

outside of and beyond the ter- 692, 150 N. W. 86.

ritorial limits in which he is 86 Harris v. Lestex, 80 HI. 307.

authorized and required to act. 86 Bass v. People, 159 HI. 207,

Van Dusen v. People, 78 HI. 646. 42 N. E. 880.

8SWarvelle on Abstracts (4th 87Bobinson v. Cooper, 62 N. Y.

Ed.), sec. 340. Misc. 517, 115 N. Y. Supp. 599.

88 Gibson v. Austin, 23 Colo. 88 Meadows v. Alexander, 1 Ga.

App. 220, 128 Pac. 859; Hambel App. 40, 67 S. E. 901.

V. Lowry, 264 Mo. 168, 174 8. W. 89Hotaling & Co. v. Brogan, 12

405; Meldrum v. United States, Cal. App. 500, 107 Pac. 711.

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§ 113] APPiDAvrrs, oaths and affirmations. 83

no difference if he signs it, or authorizes some one else to sign
for him, or approves and adopts the signing. The vital thing
is the swearing.*® In view of the necessity of form and cere-
mony, however, it would seem that the better practice is to
have the afiSant sign his written declaration, and notaries in
general would do well to adhere to this requisite. A person
who appends his signature to his sworn statement is more
disposed to carefully consider his statements, and their truth,
and cannot subsequently evade the affidavit.

§ 113. Jurat — The jurat is that part of an affidavit where
the officer states that the same was sworn to before him.*^
The jurat is merely evidence that the oath was duly admin-
istered, and, in the absence of a jurat, such fact may be proved
otherwise.^ It has been held not a necessary part of the
affidavit.** In one of these cases, however, the statute pre-
scribed no form of jurat, and it was held that the statutory
certificate for the authentication of depositions could not be
used for ordinary affidavits.** Usually the form of the jurat
is fixed by statute, and in general practice all affidavits con-
clude vdth the jurat. A presumption exists in favor of a
properly executed jurat. This presumption is not conclusive
though, as the fact whether an affiant was sworn or not may
be inquired into, and the statement in the jurat may be shown
to be false.** As has been noted, notaries who certify falsely
to affidavits are subject to severe penalties, and may be con-
victed of crime.**

Looseness in the form of the jurat or verification of instru-
ments should not be encouraged. In general, the courts do
not favor technical objections based on irregularities in affi-
davits, but such irregularities give rise to disputed questions if

M State ▼. Burtenshaw, 25 Idaho tS Miller v. Garaker, 9 Ga. App.

607, 138 Pac. 1105. 2^5, 71 S. £. 9; Green v. Bhodes,

•1 Cye. Law Diet. 8 Ga. App. 301, 68 S. E. 1090.

M James y. Logan, 82 Kan. 285, Certificate of officer ia prima

108 Pac. 81, 136 Am. St. Bep. 105. facie proof of administration of

See also Cohen v. Bernstein, 170 oath, bnt as to which parol

m. App. 113. evidence is admissible. Miller t.

9t Cohen v. Bernstein, 170 BL Caraker, 9 Ga. App. 255, 71 0.

App. 113. E. 9.

•« James v. Logan, 82 Kan. 285, MAnte, §§ 31-84.
108 Pac. 81, 136 Am. St. Bep. 105.

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84 N0TABIS8 PUBLIC. [§ 113

the instrument is involved in litigation, and if the affidavit is
correctly prepared and executed, the objections may be
avoided. It is a universal rule in all courts that any irregu-
larity in a jurat may, unless expressly waived, be objected to
in any stage of a cause.*^

The statement of the personal appearance of the affiant be-
fore the officer administering the oath varies somevtrhat in the
different states, and usually slight irregularities in the wording
do not invalidate the affidavit. Thus, the omission of the
words ''before me'' has been held immaterial, when the affi-
davit stated that the person ''then personally appeared," as
it was apparent that the person sworn appeared before the

It is essential to the validity of an affidavit that the name
of the officer who takes the oath be disclosed, either in the
recitals in the body of the affidavit, or by the signature to the
jurat.** The official character of the officer should also ap-
pear. If such designation is not added after the signature,
but appears otherwise in the papers, the omission is not fatal.*
There are exceptions to this rule as to the necessity of a
recital of official character. In New Jersey, the statute pro-
vides that the recital of official character shall be sufficient
proof that the person is the officer recited, and it has been
held that this merely provides a method of proof, and that
consequently the recital is not necessary to the validity of
the affidavit.* The failure to add the date of expiration of the
notary's commission has been held a mere irregularity, not
Invalidating an affidavit.*

•THeffron v. Bice, 40 HI. App. tel mortgage which was taken in

244; Brabrook Tailoring Co. v. Pennsylvania before a notary pub-

Belding Bros., 40 HI. App. 326. lie whose jurat failed to state

9t Clement v. Bullens, 159 Mass. that he was a notary public of that

193, 34 N. E. 173. state as required by statute, held,

99 Sellers v. State, 162 Ala. 35, that it did have annexed an affida-

50 So. 840. Tit within the meaning of the law

1 Fountain Creek Drain. Dist. No. and was not void as to creditors.

1 v. Smith, 265 HL 138, 106 N. Magowan v. Baird, 53 N. J. Eq.

E. 494. 656, 33 Atl. 1054.

SDilts V. Jersey City Board of 9 Brown Mfg. Co. v. Gilpin, 120

Excise Comr's, 80 N. J. L. 475, Mo. App. 130, 96 S. W. 669.

79 Atl. 315. See ante, i 24.

An affidavit annexed to a ckat^

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The date of the jurat should be carefully stated. Errors
may occur in this respect, of course, but should be avoided.
In one case a jurat was dated January 3, 1917, when it should
have been 1918, and the affidavit was attacked as invalid.
The court held, however, that the error was not misleading,
and further stated that the objection was frivolous.*

In many jurisdictions the signature of the oflScer is not
essential to the jurat, it being held not a part of the affidavit,
and if not signed originally, it may be signed afterwards.*
In other states, the signature is necessary.® Some courts ex-
hibit leniency, and will permit the omission of the signature
to be cured by amendment.''

Usually the official seal must be added,* although some affi-
davits have been held sufficient even though the seal was
omitted,® as where the official character of the notary other-
wise appeared,** or where there was no direct attack on the
affidavit because of the absence of the seal.** In some cases,
an omission in this respect has been cured, when the affidavit
was involved in litigation, by permitting an amendment sup-
plying the defect.** The seal is not part of the oath, but its
effect is to afford prima facie evidence of the official character
of the officer using it, and of the regularity of the certiflca-

4 Herndon ▼. Wakefield-Moore
Realty Co., U3 La. 724, 79 So.

5 See. Miller v. Caraker, 9 Ga.
App. 255, 71 S. B. 9.

6 Miller ▼. Caraker, 9 Cki. App.
255, 71 S. B. 9; Deputy v. Dollar-
bide, 42 Ind. App. 554, 86 N. E.

7 People v. Block, 281 Dl. 227,
117 N. B. 1000.

tTown of Knox v. Golding, 46
Ind. App. 634, 91 N. B. 857, 92
N. B. 986; Deputy v. Dollarhide,
42 lod. App. 554, 86 N. B. 844;
CasBidy ▼. Souster, 115 Minn. 191,
132 N. W. 292.

The failure to affix the seal
renders the instrument void, at
the statute declares acts not lo

attested void. Town of Knox v.
Golding, 46 Ind. App. 634, 91 N.
B. 857, 92 N. E., 986.

9 Clement ▼. Bullens, 159 Mass.
193, 34 N. E. 173. See Dickin-
son V. Huntington, 109 C. C. A.
523, 185 Fed. 708.

lOBarle v. National Metallurgie
Co., 77 N. J. Eq. 17, 76 Atl. 555
(where the affidavit was taken be-
fore a notary with the designa-
tion "Notary Public, N. Y. Co.'')-

11 Dickinson v. Huntington, 109
0. 0. A. 523, 185 Fed. 703 (W. Va.

U People T. Block, 281 HI. 227,
117 N. B. 1000; Ames Evening
Times v. Ames Weekly Tribune,
188 Iowa 1188, 168 N. W. 106.

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86 N0TARIB8 PUBLIC. [§ 114

tion.** By applying the general rule that officers are presumed
to act within their jurisdiction, the omission of the seal, like
that of the venue, is not fatal.^^ It is a mere isregularity, not
affecting the validity of the oath.^* In general, notaries should
affix their seals, however, and the act should be performed
carefully. In one case the impression was so faint that a
disputed question of fact arose as to whether the seal was
affixed. The evidence was held to sustain a finding that the
seal had been added, but this was in a jurisdiction where no-
taries were required to authenticate their acts, and accord-
ingly there was a presumption that the act had been per-
formed.** If the official seal is attached, the letters **N. P."
have been held sufficient to show the character of the officer
as notary.*'' Where the county for which the notary was
appointed was omitted in the jurat, but the seal indicated
such county, the affidavit was held good.**

§ 114. Certiflcate of Authority to Administer Oaths.— In
order to make an affidavit valid and effectual, it must be
sworn to before an officer who has authority to administer
oaths,** and this fact must usually appear in the officer's cer-
tificate, in order that it may be prima facie evidence of the
fact.** Because notaries had no power to administer oaths
at the common law, an affidavit made before a notary of one
state is usually of no effect in another state, unless it is ac-
companied by a certificate from some proper officer showing

It Ames Evening Timet ▼. Amee 645; McDermaid v. Bossell, 41

Weekly Tribune, 188 Iowa 1188, Dl. 489.

168 N. W. 106. , to Shockley v. TnrneU, 114 Ga.

UMeldnun y. United States, 80 378, 40 8. E. 279; Smith v. Lyons,

C. C. A. 545, 151 Fed. 177, 10 80 Dl. 600.

Ann. Gas. 324. It is only where the notary

IS Bedamation Dist. No. 730 v. certifies under his official seal that

Snowball, 160 Cal. 695, 117 Pae. he has authority to administer

905, 118 Pac. 514. oaths under the statute of the

IBCassidy ▼. Souster, 115 Minn, state under which he holds his

191, 132 N. W. 292. commission, that such certificate

17 Williams ▼. Lobban, 206 Ho. is prima facie evidence that he

399, 104 S. W. 58. has such statutory authority.

iSBilby y. Hancock, 58 Tex. Wellington t. Wellington, 137 HI

Civ. App. 365, 125 8. W. 870. App. 394.

19 Van Dusen v. People, 78 lU.

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§ 114]



the notary's power. There must be proof of the authority of
the foreign notary to act.** The foreign notary's jurat and
seal do not alone establish his authority to administer oaths.**
Affidavits sworn to before notaries public in Canada, which
give no certificate of their authority to administer oaths in
the dominion of Canada, are void.** Usually the statutes con-
tain provisions as to such certificate of authority,*^ and be-
cause of the difference in the statutes, the decisions of the
courts vary as to the requirement of a certificate of authority.
In West Virginia, the signature of the notary alone is enough
as to depositions.** But affidavits must be accompanied with
a certificate authenticating the notary's signature, and his
power to administer oaths.** A certificate of a clerk of court
stating that the officer administering the oath was a notary
at the time, that he was duly commissioned and qualified, and
that his signature was genuine, was held a sufficient authen-
tication in a late case, however, as the court would take
judicial notice that the notary had authority to administer
oaths.*' Usually, however, the courts of one state will not
take judicial notice of the appointment and term, of the office

tlHolbrook ▼. Libby, 113 Me.
389, 94 AtL 482, L. B. A. 1916 A

Oonrts of one state do not rec-
ognize the right of a notary of
another state to take affidavits, un-
less the same are aecompanied by
the certificate of a clerk of a
court of record. Teutonia Loan
& Building Co. v. TurriU, 19 Ind.
App. 469, 49 N. E. 852, 65 Am. St.
Bep. 419. See Behn t. Young ft
Co., 21 Ga. 207; Mineral Point B.
Co. ▼. Keep, 22 HI. 9, 74 Am.
Dec. 124; Connalley v. Wallace Co.,
51 W. Va. 181, 41 S. E. 167.

ft People ▼. Nelson, 160 JH
App. 595.

tt Ferris t. Commercial Nat.
Bank, 158 lU. 237, 41 N. E. 1118.

•4 See post, I 116 et seq.

MBohn ▼. Zeigler, 44 W. Va.
402, 29 S. E. 983.

•6 HiU Clutch Co. ▼. Independent
Steel Co. of America, 74 W. Va.
353, 82 S. E. 223.

An affidavit for an attachment
made before a foreign notary,
but without a certificate from a
clerk of court or other official,
verifying the genuineness of the
notary's signature and his author-
ity to administer oaths as re-
quired by statute is bad but may
be amended on leave of court.
Bohn V. Zeigler, 44 W. Va. 403;
29 S. E. 983.

S7 Appalachian Marble Co. v.
Masonic Temple Ass'n, 79 W. Va.
471» 91 a E. 403.

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 11 of 50)