Frederick Mortensen Hinch Edward Mills John.

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88



NOTARIES PUBLIC.



[8 115



•f notaries in other states.^ In Bome states the affidavit of
a foreign notary with his seal attached is receivable in the
courts without further authentication.**

In Illinois, in attachment cases, the affidavit may be made
before any officer authorized by the laws of the state to ad-
minister oaths. If in the county, a seal is not required, but it
is required for outside the county or state.** The civil code
of New York requires that, when an affidavit is taken in an-
other state to be used in New York, there must be a certificate
that such officer was authorized by the laws of his state to
take and certify acknowledgments and proofs of deeds to be
recorded in his state. A certificate taken in another state
reciting that the officer is a notary public and as such is
duly authorized by the laws of such state to take does not
comply with the code of New York.**

A notary of another state is permitted to file, as an amend-
ment to his original certificate, an additional certificate stating
that he is authorized to administer oaths.**

§ 116. Perjury. — ^Perjury at common law is the wilful and
corrupt taking of a false oath in a judicial proceeding in
regard to a matter material to the issues.** The crime of



t8Axi affidavit of a notary of
another state having no notarial
seal attached nor any evidence of
authority is insufficient. Alabama
Nat. Bank v. Chattanooga Door
& Sash Co., 106 Ala. 663, 18 So.
74; Chandler v. Hanna, 73 Ala.
390; Bradley t. Northern Bank,
60 Ala. 252.

99 Singletary v. Watson, 136 Ga.
241, 71 8. E. 162.

A notary public of another state
must certify that he has power
to administer oaths; it cannot be
presumed. Keefer v. Mason, 36
lU. 406. If no authority is shown,
it win be treated as a nullity.
When a seal is used, certificate is
not required. Harding v. Curtis,
45 lU. 252.

SO Rowley V. Berrian, 12 111. 108.



81 Stanton v. United States Pipe
Line Co., 90 Hun. (N. Y.) 35, 35
N. Y. Supp. 629, 25 Civ. Proc. 180,
70 N. Y. St. Eep. 394. See also,
Wood V. St. Paul City By. Co.,
42 Minn. 411, 44 N. W. 308, 7
L. B. A. 149; Leavitt v. Williams,
160 N. Y. Supp. 667; Isman v.
Wayburn, 54 N. Y. Misc. 86, 104
N. Y. Supp. 491.

•tGoldie V. McDonald, 78 HI.
606.

88Cyc. Law Diet.; Com. v.
Hinkle, 177 Ky. 22, 197 S. W.
455.

The false testimony mnst be
given wilfully, with criminal
intent. State v. Henry, 118 Me.
495, 108 Atl. 49; People v.
Bedmond, 189 N. Y. App. Div. 96,
178 N. Y. Supp. 120.



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§ 116]



AFFIDAVITS, OATHS AND AFFIRMATIONS.



89



perjury is variously defined by the statutes and has been
extended in most states to include false swearing, as where an
oath or affidavit is made in regard to matters not required by
law in a judicial proceeding.** To ** swear** means to state a
fact or facts under the sanctity of an oath or affirmation, ad-
ministered by some duly qualified officer, having authority to
administer oaths.** A person may be guilty of perjury, if
facts are stated by a deponent and known to be false, though
stated on information and belief.** The statement of a person



Perjury consists in swearing
falsely, wilfully and corruptly,
contrary to the belief of the wit-
ness, not in swearing rashly and
inconsiderately, according to his
belief. Cassady v. State, — Okla.
Cr. App. — , 197 Pac. 171.

84 False Swearing:

Palse swearing is perjury in the
second degree. State v. Howard,
91 Wash. 481, 158 Pac. 104.

Rem. & Bal. Code, § '2353,
denounces false swearing by a
volunteer, not alone concerning
matters where an oath is required
or authorized by law but "con-
cerning any matter whatsoever."
State V. Howard, 91 Wash. 481,
168 Pac. 104.

False swearing is a statutory
offense. The oath need not be
taken in a judicial proceeding, or
in a matter material to any point
in question. It is only necessary
that the false statement be made
wilfully, with knowledge of fal-
sity, on a subject to which the
defendant might legally be sworn,
before an* officer authorized to
administer an oath. Com. ▼.
Hinkle, 177 Ky. 22, 197 S. W. 465.
See also Cassady v. State, — Okla.
Cr. App. — , 197 Pac. 171.

Perjury under United States
Laws:

Every person who, after taking



an oath before a competent tribu-
nal, officer, or person, in any case
in which a law of the United
States authorizes an oath to be
administered, that he will tes-
tify, declare, depose, or certify
truly, or that any written tes-
timony, declaration, deposition or
certificate by him subscribed is
true, wilfully and contrary to such
oath states or subscribes any
material matter which he does not
believe to be true, is guilty of
perjury, and shall be punished by
a fine of not more than $2,000,
and by imprisonment, at hard
labor, not more than five years;
and shall moreover, thereafter be
incapable of giving testimony in
any court of the United States
until such time as the judgment
against him is reversed. U. S.
Bev. St. sees. 5392, 5393.

A charge of perjury may be
based on a valid rogulation of
the general land office requiring
an affidavit, if the oath is taken
''before a competent tribunal,
officer or person.** U. S. v. More-
head, 243 U. S. 607, 61 L. Ed. 926.

85 State V. Dallagiovanna, 69
Wash. 84, 124 Pac. 209, 40 L.
E. A. (N. S.) 249.

•6 Cassady v. State, — Okla. Cr.
App. — , 197 Pac. 171.



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90 KOTARlEfl P0BLIO. [§11^

that he does or does not remember a given fact may subject
a person to the punishment for perjury, if false.*'' Convictions
of the crime may be had in some cases even though the affiant
did not know his statement to be untrue.** The officer who
administers an oath must have legal authority or the person
taking it before him, however false, cannot be convicted of
perjury.**

Subornation of perjury is the procuring of another to com-
mit legal perjury, whereby the other person, in consequence
of the persuasion, takes the oath to which he has been incited.^



STATUTOBY BEQUIBEMBNTS.

I 116. Alabama— AFFIDAVITS— without the state, may be taken
by eommisflioner, judge or clerk of federal court, judge of any court
of record, or notary public, under their hands and official seal. OATHS —
without the state, may be taken by notaries and officers authorized
to take acknowledgments.

§ 117. Alaaka^AFFIDAVITS — ^may be taken by every court, judge,
clerk of a court, commissioner, justice of the peace and notary. The
usual form is used unless the officer has a more solemn or obligatory
form or witness may be sworn according to his peculiar religious
ceremony. Witness may affirm.

§ 118. Arizona— AFFIDAVIT— may be taken in this state, by
clerk of the district court or notary, within their counties. Out of
the state, by any clerk of a court of record having a seal, any notary,
or any commissioner of deeds appointed under the laws of this state.
Out of the United States, by a notary, minister, commissioner, charge
d 'affaires of the United States, resident in and accredited to the country,
consul-general, consul, vice consul, commercial agent, deputy consul,
consular agent of the United States resident in the country.

87 People V. Bedmond, 189 N. Y. not know his statement to be un-

App. Div. 96, 178 N. Y. Supp. 120. true. State v. Bupp, 96 Kan. 446,

8S Under a statute forbidding 151 Pac. 1111, L. B. A. 1918 B

the issuance of a marriage license 848.

to a female under the age of S9Van Dusen ▼. People, 78 111.

eighteen without the consent of 645.

the father, and making it a mis- 40 Cyc. Law Diet,

demeanor to swear falsely in an Every person who procures an<

affidavit that the person involved other to commit any perjury is

is of lawful age, a conviction may guilty of subornation of perjury,

be had, although the affiant did U. S. Bev. St. sees. 5392, 5393.



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§ 125] AFFIDAyiTS, OATHS AND AFFIRMATIONS. 91

i 119. Aikansas— AFFIDAVITS— taken in this itate, by a judge
of the court, justice of the peace, notary or clerk of the court, mayor
of city or incorporated town. Out of this state, by a commissioner
appointed by the governor of this state to take depositions, before a
judge of court, mayor, justice of the peace, notary, whose certificate
shall be proof of the time and manner of its being made.

I 120. OalifomUp— AFFIDAVITS— may be taken in the state or
outside by those authorized to take acknowledgments. See post, { 270,
OATHS — form may be varied to suit the witness' religious belief. Wit-
nesses may affinn.

i 121. Colorado— AFFIDAVITS— taken in the state, by judges,
county clerks, justices and clerks of court, justices of the peace, notaries,
within their district. Out of the state, by a notary, clerk of a court
of record, under their official seals, commissioners of deeds.

I 122. Oonnactlcut— AFFIDAVITS AND OATHS— taken by clerk
of the senate, clerks of the house of representatives, chairman of
committees of the general assembly, or its branches, during session,
the governor, commissioner of school fund, judges and clerks of any
court, justices of the peace, commissioners of the superior court, county
commissioners, notaries, town clerks, commissioners to take acknowl-
edgments appointed by the governor, commissioners of other states in
it, also register of births when noting same. County superior court
clerk will certify to the notaries' certificate. Party may affirm if ob-
jecting to oath, using the words, "Solemnly and sincerely affirm and
declare," and instead of "so help you God,'' the words "upon the
pains and penalties of perjury," shall be used.

I 1231 Dfllawaxe— AFFIDAVITS AKD OATHS— taken by the
chancellor, any judge, notary public, justice of the peace. Persons
residing outside the state, may make oath or affidavits for use in this
state before the same officers authorized by this state to take acknowl-
edgments or to probate accounts. Usual form. Swearing upon the Holy
Evangels of Almighty God, by laying the right hand upon the Book and
kissing it, or with the uplifted hand and swearing "by the overliving
God, the searcher of all hearts, that," etc., as "I shall answer to God at
the great day." Any one opposed to swearing may affirm.

i 124. District of Ocdumbia— AFFIDAVITS AND OATHS— may be
administered by a chancellor, any judge, justice of the peace, or notary
public.

i 125. Florida— OATHS— can be administered in this state, by judges
and clerks of the supreme and circuit courts, judges of probate, justices
of the peace, and notaries public. In other states, any judge or derk of
a supreme, circuit or chancery court, or a notary public, or conunis-
sioner of deeds. In foreign countries, any judge of a court of last
resort, a notary public, a minister, consul-general, charge d'affaires,
or consul of the United States resident in that country, all to b«



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92 NOTARIES PUBLIC. [§ 12G

autkenticated by their signature and official seal. An affirmation may
be substituted for an oath. FALSE AFFIDAVIT TO DEFEAUD
INSUBEB — any master or officer of a ship making or causing to be
made a false affidavit or protest, or if any owner or other person
concerned in such ship, vessel or goods procures a false affidavit or
protest, he shall be imprisoned not exceeding ten years or by fine
not exceeding $5,000.

I 126. O^orgla— AFFIDAVIT— may be taken by any notary public,
justice of the peace, judge of a court of law, or chancellor, commis-
sioner, or master of any court of equity of the state or county where
the oath is made or officer of such state or county authorized by the
laws thereof to administer oaths. The official attestation of the officer
shall be prima facie evidence of his official character and that he was
so authorized. An affidavit made before any commissioner of this
state, or any commissioner, or master, or chancellor of a court of equity,
or judge of any court of the state where made, authorized to admin-
ister an oath, shall be sufficient verification.

S 127. Hawaiian Islands— AFFIDAVITS AND OATHS— may be
taken by courts, judges, or their clerks, notaries, commissioners.
Affiants inay affirm according to their religion.

S 128. Idaho— AFFIDAVITS— in the state, may be taken before a
judge or clerk of any court, justice of the peace, or notary public. Out
of the state, to be used therelu, before the judge or clerk of a court
of record, having a seal, notary or commissioner. In a foreign country,
an ambassador, minister, consul, vice consul or consular agent of the
United States, or a court of record having a seaL A judge or court
outside this state must have their certificate authenticated by the
clerk of the court.

§ 129. Illinois— WHO MAY ADMINISTEE— in the state, aU
courts, each judge, justice, master in chancery, and clerk thereof, and
all justices of the peace, police magistrates and notaries public, secre-
tary of state, in their districts, counties or jurisdictions. Out of the
state, may be administered by any officer authorized by the laws
of the state in which it is so administered, and if such officer have a
seal, his certificate under his official seal shall be received aa prima
facie evidence without further proof of his authority to administer
oaths. FORM OF OATH — the person swearing shall, with his hand
uplifted, swear by the everliving God, and shall not be compelled to
lay the hand on or kiss the Gospels. Party may affirm in the follow-
ing form: ."You do solemnly, sincerely and truly declare and affirm.
Any person who shall so swear or affirm wilfully and falsely, in matter
material to any issue or point in question, are subject to the like pains
and penalties as are inflicted by law on persons convicted of wilful
and corrupt perjury."

$ 130. Indiana— WHO MAY ADMINISTER AFFIDAVITS AND
OATH — ^justices, judges, notaries, mayors, clerks of court, master com-



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§ 132] APFIDAVITS, OATHS AND AFFIRMATIONS. 93

missioners, eaeh in their own county or jurisdiction. Affidavits taken
in another state to be certified to hj the clerk of the circuit, district
or eonunon pleas countj court, where the officer taking has jurisdic-
tion, clerk's certificate to state under his hand and court seal that
the officer taking is hy the laws of said state duly empowered to ad-
minister oaths, affirmations and take affidavits. FALSELY ATTESTING
— a notary public or other officer authorized to administer oaths who
certifies that any person was sworn or affirmed before him to any
affidavit or other instrument of writing when in fact such person was
not so sworn or affirmed, shall be imprisoned in the state prison not
more than three years nor less than one year, and fined not more than
$1,000 nor less than $10. Same with acknowledgments, etc., they
shall be imprisoned in the state prison from one to three years and
fined from $10 to $1,000. Officer to explain the contents of the instru-
ment to the party executing it before certifying to the acknowledgment
under penalty of a fine of from $5 to $500 and imprisonment of from
ten days to six months.

§ ISl. Iowa— AFFIDAVIT— may be made within or without this
state before any person authorized to administer oaths. Out of the
state, a judge or clerk of a court of record, a notary, or a commissioner
of deeds appointed by the governor of this state, are credible. A per-
son desirous of obtaining the affidavit of another who is not willing
to make it may apply to an officer competent to take depositions, and if
the officer is satisfied that the object is legal and proper he shall
issue a subpoena to bring the witness before him, and if he fails to
make a full affidavit within his knowledge as required, the officer may
take his deposition by question and answer in writing, which may
be used instead of the affidavit. NOTICE — the officer may require
notice to be given to any party interested and allow him to be present
to cross-examine the witness. OATHS — ^who authorized to take —
judges of the supreme, district, superior or police courts, clerks and
deputy clerks of the same courts, county auditors and deputies, sheriffs
and deputies where authorized by law to select commissioners and
appraisers, impanel jurors for view or appraisement of property, or
when directed as an official duty to have property appraised, or to
take answers of garnishees, mayor and clerk of cities and towns,
judges and clerks of election, township clerks, chairman of board of
supervisors, surveyor or coroner in relation to duties imposed on
either, members of any state institutions, of all commissions, boards
or bodies created by law, all persons, referees or appraisers appointed
by authority of law, the governor, secretary, auditor, and treasurer
of state when pertaining to their official duties, justices of the peace
within their counties, and notaries public within their counties or
adjoining counties where they have filed their certificate of appointment.
AFFIRMATION — can be made when person is opposed to swearing.

$ 132. Kanaa*— AFFIDAVITS AND OATHS— administered by jus-
tices of the peace in their counties, notaries public, judges of courts in



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94 NOTARIES PUBMO. [§ 133

their juriBdictions, mayors of cities and towns, derlu of courts of
record, county clerks and registers of deeds. HOW ADMINISTEBED
— hj laying the right hand on the Holy Bible, or by the upliftcMl hand.
FORM — must commence with, "you do solemnly swear," etc., and con-
clude with ''so help you Qod." Or, "you do solemnly, sincerely and
truly declare and affirm,'' etc., "and this you do under the pains and
penalties of perjury." FALSIFTINQ — subjects the party to the pains
and penalties of perjury. AFFIRMATION — can be taken where the
party is conscientiously opposed to an oath. AFFIDAVITS — may be
made in and out of the state by anyone authorized to take depositions
and in the same way.

{ 133. Kentucky— AFFTDAVITS AND OATH&— administered in
the state, by justices of the peace, notaries public, judge of a court,
examiner, clerk of court, or master commissioner. Out of the state,
by a commissioner appointed by the governor, a commissioner agreed
upon by the parties, justice of the peace, judge of a court, mayor of a
city, or notary public. OFFICERS — official oaths may be administered
by any judge, notary, clerk of court, or justice of the peace, within
his district or county. OATHS — ^include affirmations. AFFIDAVITS —
to be subscribed by affiant, certificate of officer before whom made
shall be written separately, following signature of affiant and shall
be proof of time and manner of affidavit. Notary's certificate must
be signed, officially sealed and show date of expiration of commission.

{ 134. Loolslaiia— AFFIDAVITS AND OATHS— may be taken in
the state, by judges, justices of the peace, clerks of courts and notaries.
Out of the state, for use in the state, a Louisiana commissioner or any
one authorized by the laws of the state where taken to administer
oaths. If other than a Louisiana commissioner, authority must be
certified by a Louisiana commissioner.

{ 131k MaJno— AFFIDAVITS, OATHS AND AFFIRMATIONS—
taken by a notary when authorized by his state or country, a com-
missioner of deeds for this state, under their signature and official seal.
FORM — swear or affirm under the pains and penalties of perjury.

§ 13e. Maryland— AFFIDAVITS AND OATHS— taken in this state,
when suit is brought on a bond, deed, note, or other instrument in
writing, oath to must be made before a judge or justice of this state,
or a commissioner of this state, or a judge or justice of another state
or country, whose authority must appear and be certified by clerks of
courts. Out of the state, before a Maryland commissioner, a judge of
a court of record, a notary who must authenticate with his seaL MORT-
GAQES TO BE VALID — except as between the parties, must have in
dorsed thereon an oath or affirmation of the mortgagee that the con-
sideration in said mortgage is true and bona fide as set forth, and an
additional oath, that the mortgagee has not required the mortgagor, his
agent or attorney, or any person for the said mortgagor, to pay the
tax levied upon the interest covenanted to be paid in advance, nor will



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§ 141] AFFIDAVITS, OATHS AND AFFIRMATIONS. 95

he require anj tax levied thereon to be paid by the mortgagor or any
person for him during the existence of this mortgage. It may be made
any time before recording. The affidavit may be made by one of several
mortgagees. It may be made by any agent, signing as agent, or by an
officer of a corporation, or the executor of the mortgagee.

{ 137. Ma«achu8ett»— AFFIDAVITS, OATHS AND APFIBMA.
TIONS — made in the state, before a justice of the peace or notary.
Out of the state, a Massachusetts commissioner or a notary. Oertiilca-
tion not required.

{ 138. Michigan— APilDAYITS AND OATHS— may be taken before
any justice, judge or clerk of a court of record, circuit court com-
• missioner, notary, justice of the peace, or commissioner appointed by
the court. MODE — of^ by holding up the right hand, unless the party
can show a more solemn form. No witness incompetent 'on account of
his religious views. Parties may affirm.

I 139. Minneaota— APiTDAVITS AND 0ATHS-4aken by judges of
all courts of record in the state, including judges of federal courts,
the clerks of said courts, deputy clerks. United States commissioner,
members of legislature, court and county commissioners, registers of
deeds, justices of the peace, notaries public, all legislative com-
mittees, commissioners, referees, and committees appointed by any
of said courts for matters coming before them, county auditors, town
and city clerks and village recorders. Usual mode with hand uplifted.
Notaries can take in their county. Their certificate is prima facie
evidence without any other authentication either in or outside of the
state. The word ''affinn'' may be substituted, and "under the pains
and penalties of perjury" instead of "so help me Qod."

f 14a Mtealaalppi— AFFIDAVITS AND OATHS— administered by a
judge of a court of record, clerk of such court, master in chancery,
member of the board of supervisors, justice of the peace, notary public,
mayor, or police justice of a city, town or village, and any officer of any
state, or of the United States, authorized by law to administer, the
judge of any court of record, mayor or chief magistrate of city in foreign
country. An affirmation has the same effect.

f 141. lllMOuri— AFFIDAVITS AND OATHS— taken by every court
and judge, justice and clerk, justice of the peace, and notaries. To be
administered free of charge in cities of over 100,000 inhabitants, by
the mayor, comptroller, auditor, register, collector, recorder of deeds,
recorder of voters, president of the board of assessors and their
deputies when in connection with the business of their offices. In
another state, may be taken before a notary public, or justice of the
peace, latter being certified by certificate and seal of clerk of court,
before clerk of court or any judge of such court, same being certified.
AFFIBMATION— permitted. FORM— "You do solemnly declare and
affirm, etc., under the pains and penalties of perjury." The officer



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96 NOTARIES PUBLIC. [§ 142

fhall adopt the mode most binding on the conscience of personf to
be sworn, according to the peculiar ceremonies of their religion.

f 142. Montaaa^APFIDAVITS — may be taken in this state, before
any judge or clerk of any court, or any justice of the peace, county
clerk or notary public. In any other state, before a commissioner
appointed by the governor of this state to take affidavits and deposi-
tions in that state or before a notary public, any judge or clerk of a
court of record having a seal. In a foreign country, before an ambas-
sador, minister, consul, vice consul, or consular agent of the United
States, or before any judge of a court of record having a seal. If taken
before a judge of a court in another state or foreign country, the gen-
uineness of the signature, existence of the court and the fact that such
judge is a member thereof must be certified by the clerk of the court
under its seal. OATHS — may be administered by any court, judge, or
court clerk, justice, notary and officers authorized to take testimony.
Witnesses may affirm. Officers are authorized to employ interpreters to



Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 12 of 50)