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584. Nebraska 339

685. Nevada 339

586. New Hampshire 339

537. New Jersey 840

638. New Mexico 340

539. New York 341

640. North Carolina 841

641. North DakoU 842

642. Ohio 842

543. Oklahoma 342

544. Oregon 842

545. Pennsylvania 343

546. Porto Rico 343

547. Rhode Island 843

548. South Carolina 843

549. South Dakota 844

550. Tennessee 844

551. Texas 844

552. Utah 844

658. Vermont 845

554. Virginia 846

666. Washington 846

666. West Virginia 845

567. Wisconsin 846



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TABLE OF C0NTBNT8. ZIX

Page.

f 658. Wyoming 846

{ 569. Canada 846



CHAPTER VII.

Forms.

i 560. 847

Index 421



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NOTARIES PUBLIC



CHAPTER L
THB OFFICB AND ITS RBQUIREMBNTS.

§ 1. Definition.— A notary or notary public is an officer ap-
pointed by the executive or other appointing power, under the
laws of different states, haviug power generally to attest writ-
ings for the purpose of establishing their authenticity, to
administer oaths, and to perform similar duties.^

§ SL Origin and History.— Notaries are of ancient origin,
long known to the civil and common law. Originally he was
a mere scribe, taking notes or minutes, and making drafts of
writings and public instruments,* but his duties were extended
with the growth of commerce, and became more frequent in
attestation and authentication of instruments peculiar to mari-
time law, or the law merchant. At this day, in most countries,
a notary public is one who publicly attests deeds or writings,
to make them authentic in another country; but principally
in business relating to merchants.'

ICyc. Law Diet. C36. Gharst v. St. Louis Transit Co.,

A notary is an officer whose datj 115 Mo. App. 403, 91 S. W. 453.

it is to attest the genuineness of Notarius in English law is a

deeds or writings in order to ren- notary; in civil law, one who took

der them available as evidence of notes or draughts in shorthand of

the facts therein contained; a pub- what was said by another, or of

lie functionary authorized to re- proceedings in the senate or in a

ceive aU acts and contracts to court. One who draughted written

which parties wish to give the instruments, wills, conveyances,

character of authenticity, attached etc. Cyc. Law Diet 636.

to the act of public authority. 8 Carroll v. State, 58 Ala. 396;

Nolan V. Labatut, 117 La. 431, 41 Kirksey r. Bates, 7 Port. (Ala.)

So. 713. 529.
tCarroU v. SUte, 58 Ala. 396;



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2 NOTABIES PUBLIC. [§ 2

OflSccrs whose duties correspond closely to those of notaries
public are traceable to the Roman Republic, although their
duties differ very largely now *

The oflSce was known in England before the Conquest,* and
is mentioned in the statutes enacted during the reign of Ed-
ward the Third.^ The English notary is an ecclesiastical
officer, although his duties are mainly secular, having at one
time been appointed by the Popes, which right was subse-
quently denied by the kings who assumed their controU

In Scotland, papal and imperial notaries practiced until 1469,
when an act was passed declaring that notaries should be made
by the King. It appears, however, that for some time after-
wards, there were both legal and clerical notaries. In 1563, it
was declared by law that no person should take on the office,
under pain of death, unless created by the sovereign's special
letters, and thereafter examined and admitted by the lords of
session. The position of notary is somewhat higher in Scotland
than in England.

The Frankish kings at an early date appointed them.

In France they have always been important personages,
having been appointed by the King and also the Popes. In
France, notaries receive all acts and contracts to which the
parties thereto must give or desire to give the authenticity
attached to the acts of public authority; they certify the date,
preserve the originals and give copies or duplicates. They are
nominated by the president of the republic on the recommenda-

4 In Boman law the notarius was 6 Statute of Provison, 25 £d-

originally a slave or f reedman who ward m, 4.

took notes of judicial proceedings The office is mentioned in

in shorthand. The modem notary Shakespeare's Merchant of Venice,

corresponds rather to the tabellio 7 Notaries are nominated, since

or tabellarius than to the notarins. the Peterpence Dispensations Act,

Encyclopedia Britannica (11th Ed. 1533-1534, by the archbishop of

XIX), p. 822. Canterbury, through the master of

B''The office originated in the faculties (now the judge of the

early Boman jurisprudence, and proTincial courts of Canterbury

was known in England before the and York). Encyclopedia Britan-

Conquest." Teutonia Loan ft nica (11th Ed. XIX), p. 822; Opin-

Building Co. v. Turrell, 19 Ind. ion of Justices, 150 Mass. 586, 23

App. 469, 49 N. R 852, 65 Am. St N. E. 850, 6 L. B. A. 842.
Bep. 419.



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S4]



THS OFFICE AND ITS REQUIREMENTS.



tion of the keeper of the seals, must not engage in business,
and serve an apprenticeship before being appointed.

In Italy during the Middle Ages they were appointed by the
Emperor or the Pope.

In Germany, in some states the notarial office is combined
with that of advocate, in other states there are no notaries,
and in most states, the office forms a distinct class.

§ 3. Notaries in the United States.— In the United States,
notaries are state officers, usually appointed by the governor.
The manner of appointment, powers and duties, and liabilities
are regulated by statutes, and differ but slightly in the various
states and territories.

§ 4. Notaries as Public Officers. — ^Because of the credence
which all civilized nations attach to the attestation and au-
thentication of acts by notaries to facilitate commercial inter-
course, it is said that he is an officer known to the law of
nations.*

In a large number of decisions of courts of last resort,
notaries have been recognized as public officers,^ and because



SEirksey v. Bates, 7 Port.
(Ala.) 529.

"A notary pub^e is considered
DOt merely an officer of the country
where he is admitted or appointed,
bnt as a kind of international offi-
cer, whose official acts, performed
iL the state for which he is ap-
pointed, are recognized as author-
itative the world over." Wood v.
St. Paul City By. Co., 42 Minn. 411,
44 N. W. 808, 7 L. B. A. 149.

• Carroll v. State, 58 Ala. 396;
Kirksey v. Bates, 7 Port. (Ala.)
629; Bute v. Hodges, 107 Ark. 272,
154 8. W. 506; Sonfield v. Thomp-
son, 42 Ark. 46, 48 Am. Bep. 49;
Ashcraft v. Chapman, 88 Conn.
232; Ohio Nat. Bank of Washing-
ton v. Hopkins, 8 App. Cas. (D. C.)
146; Smith v. Meador, 74 Ga. 416,
58 Am. Bep. 438; Keeney v. Leas,
14 Iowa 464; Emmerling v. Gra-



ham, 14 La. Ann. 389; Opinion of
Justices, 150 Mass. 586, 23 N. £.
850, 6 L. B. A. 842; State v. Zehn-
der, 182 Mo. App. 161, 168 S. W.
661; In re Opinion of Justices, 73
N. H. 621, 62 Atl. 969, 5 L. B. A.
(N. S.) 415, 6 Ann. Cas. 283; Peo-
ple V. Bathbone, 145 N. Y. 434, 40
N. £. 395, 28 L. B. A. 384; State
V. Clarke, 21 Nev. 335, 31 Pac. 545,
18 L. B. A. 313; 37 Am. St. Bep.
517; Attorney General v. Knight,
169 N. C. 333, 85 S. E. 418, L. B.
A. 1915F 898, Ann. pas. 1917D 517;
Nicholson v. Eureka Lumber Co.,
160 N. C. 33, 75 S. E. 730, Ann.
Cas. 1914C 202; State v. Adams,
58 Ohio St. 612, 51 N. E. 135, 11
L. B. A. 727, 65 Am. St. Bep. 792;
CHapp V. Miller, 56 Okla. 29, 156
Pac. 210, 11 N. C. C. A. 581;^utts
V. Purdy, 63 Ore. 150, 125 Pac. 313,
127 Pae. 25; Stat« ▼. Davidson,



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NOTARIES PUBLIC.



[§ 5



of this fact women have been held disabled from holding such
offices.** Becoming important to the commercial world, their
appointment was provided for and their duties regulated by
public law, and they became sworn public officers,** recognized
as necessary in nearly all civilized countries.

§ 6. Notaries as Agents. — ^The employment of a notary to
take an acknowledgment does not constitute him an agent.**
In protesting notes, notaries act independently for the owner
of the note they protest, and not as agent of the bank placing
the same in their hands.** The act is rather an official duty,
than the employment of an agent,** and, in general, notaries
do not act as agents. The purchaser of property who, without
authority, pays the price into the hands of the notary, incurs
the risk of the deposit, and if the notary embezzle the money,
the purchaser must sustain the loss.** Of course, the relation
of principal and agent may exist under certain circumstances,
and a bank is liable for the acts of a notary when he acts as
its agent.**



92 Tenn. 531, 22 S. W. 203, 20 L.
B. A. 311; Pierce v. Indseth, 106
U. S. 546, 27 L. Ed. 254, 1 Sup. Ct.
418; Britton v. Niccolls, 104 U. 8.
766, 26 L. Ed. 918; Bettman v.
Warwick, 47 0. C. A. 185, 108 Fed.
47.

A notary public is a public offi-
cer and cannot be the agent of
either party. Gason v. Gason, 116
Tenn. 173, 93 S. W. 89.

10 See post, ( 9. Women as
Notaries.

11 In re Opinion of Justices, 73
N. H. 621, 62 Ail. 969; 5 L. B. A.
(N. S.) 415, 6 Xnn. Gas. 283.

ItBorchers t. Barckers, 158 Mo.
App. 267, 138 S. W. 555; Ely
Walker Dry Goods Co. v. Smith,
Okla. , 160 Pac. 898.

18 First Nat. Bank v. Butler, 41
Ohio St. 519, 52 Am. Bep. 94. See
Ohio Nat. Bank of Washington v.
Hopkins, 8 App. Gas. (D. G.) 146.



14 See post, i( 21, 36.

Notaries are liable for negli-
gence to the holder for commercial
paper placed in their hands for
protest by a bank. The bank is
not liable in such cases. Bowling
V. Arthur, 34 Miss. 41; Tieman v.
Gommercial Bank of Natchez, 7
How. (Miss.) 648, 40 Am. Dec. 83;
First Nat. Bank v. Butler, 41 Ohio
St. 519, 52 Am. Bep. 94; Gity Nat.
Bank of Dayton v. Glinton Gounty
Nat. Bank, 49 Ohio St. 351, 30 N. E.
958; First Nat. Bank of Manning
V. German Bank, 107 Iowa 543, 78
N. W. 195, 44 L. B. A. 133, 70
Am. St. Bep. 216.

1ft Brown v. Schmidt, 7 La. Ann.
349; Saloy v. Hibemia Nat. Bank,
39 La. Ann. 90, 1 So. 657.

16 Wood Biver Bank ▼. First
Nat. Bank of Omahay 36 Neb. 744,
55 N. W. 239.



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§ 8] THE OFFICE AND ITS KBQUIBBliBKTS. 6

§ 6. Appointment. — ^In the United States, appointments of
notaries are usually made by the governor, and in many states
the advice and consent of the senate or council is necessary.*'
In England they are appointed by the CJourt of Faculties and
are obliged to serve an apprenticeship of five years, and then
furnish a certificate from two notaries stating fitness for the
office. A penalty is imposed for acting without authority. In
London seven years' apprenticeship is required. The duties
are similar to those in the United States. On the continent of
Europe they are appointed by the executive.

§ 7. Oommission or Certificate of Authority; Duty to Issue.

— ^A notary's official authority to act, or certificate of appoint-
ment is represented by his commission, which is issued on the
filing of his bond and oath of office, and for which a fee, vary-
ing in the different states, is required. The commission is
signed by the appointing power, and the issuance of a commis-
sion is essential to the completeness of the appointment.**
Usually the commission is issued by the secretary of state after
the appointment is made. In states where this plan is followed,
the issuance of the commission is a ministerial act, and if the
secretary refuses to perform the duty, he may be compelled to
do so by a writ of mandamus.*®

§ 8. Eligibility and Qualifications.— Persons are eligible to
the office of a notary if they possess the qualifications usually
required of public officers. In general they must be of legal
age, citizens of the state, and persons of good moral character .••
If there is no provision in the constitution or statutes of a state
makiQg an infant, a person who has not attained the age of
twenty-one years, ineligible to the office of notary, such a minor
may hold the office. This is upon the theory that the office is
ministerial, and does not concern the administration of jus-
tice, which offices might be held by infants at the common law.**



17 See post, §§ 37-90. tl United States v. Bixby, 9 Fed,

IS Draper v. State, 175 Ala. 547, 78. See Freeman v. Port Arthur

57 So. 772, Ann. Cas. 1914D 301. Rice & Irrigation Co., — Tex. Civ.

19 State V. Hodges, 107 Ark. 272, App. — , 188 S. W. 444, where an

154 S. W. 506; State v. Lyon, 63 affidavit taken by a notary under

Okla. 285, 165 Pac. 419. 21 was held not defeetiye.

so See post, ii 37-90. .



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6 NOTARIES PUBLIC. [§ 9

An alien who secures the commission of notary and otherwise
qualifies, has been held to be a <ie facto officer.**

Some of the statutes expressly require an applicant for a
commission as notary to prove his qualifications, and to secure
the recommendation of certain officers. The statutes vary
largely in this respect, but, even in the absence of statute, the
matter rests in the discretion of the appointing officer, and
commissions are not issued in a haphazard manner. Frequently,
rules are promulgated by the appointing officer, such as the
governor, which rules operate in the same manner as statutory
requisites, and compel the applicant to procure the recommen-
dation of responsible citizens, and otherwise prove his ability
and character.**

§ 9. Women as Notaries. — ^At the common law, women were
disabled from holding public office, and because the place of a
notary public is a public governmental office, women have been
held ineligible for the position.** The question is one involv-
ing constitutional law, as the constitutions of the various states
frequently contain provisions respecting the qualifications of
public officers, or specifically naming notaries. Under such
provisions the legislatures have been held unable to authorize
the appointment of women.** Thus, statutes enacted in some of
the states authorizing the appointment of women as notaries
have been held invalid, because such women were not electors,
and public officers are required to be electors.** In the absence
of constitutional restriction, it has been held that the legisla-
ture has full power to abolish the common-law rule, and to



SSSee § 16, post. ion of Justices, 150 Mass. 58<(, 28

as See Pilkington t. Potwin, 163 N. E. 850, 6 L. B. A. 842.

Iowa 86, 144 N. W. 39, where a tSIn re Opinion of Justices, 165

notary's commission was denied Mass. 599, 43 N. B. 927, 32 !«. B.

temporarily because of the failure A. 350.

to submit the recommendation re- S6 State v. Hodges, 107 Ark. 272,

quired by the rules of the govern- 154 S. W. 506; State v. Adams, 58

or's office. Ohio St. 612, 51 N. £. 135, 11 L.

Statutory requirements, M6 if B. A. 727, 65 Am. St. Bep. 792;

37-90, post. Attorney General ▼. Knight, 169 N.

MIn re Opinion of Justices, 73 C. 333, 85 S. E. 418, L. B. A.

N. H. 621, 62 Atl. 969, 5 L. B. A. 1915 F 898, Ann. Oat. 1917D 517.
(N. S.) 415, 6 Ann. Oas. 283; Opin-



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S 10] THE OFFICE AND ITS REQUIREMENTS. 7

provide for the appointment of women as notaries,*'' although
it seems that express legislative enactments are necessary be-
fore women may be appointed.**

In some states, it has been held, however, where the oflSce
was created by statute, that women might be appointed, there
being no provision excluding them,** and elsewhere the acts of
a woman notary have been held not subject to collateral at-
tack; that she was a de facto officer, whose acts could not be
objected to by third persons.**

Regardless of the earlier decisions, many states have now
enacted statutes specifically authorizing the appointment of
women as notaries,** and with the advent of women 's suffrage,
rendering them electors, and placing them on an equality with
men, it may be stated that these disqualifications because of
sex have been removed ; that women are now, or will be in a
very short time, fully eligible to this office in all of the states.

§ 10. Incompatible Offices. — The office of a notary may be
incompatible with other offices and duties. Thus, under a con-
stitutional provision providing that anyone holding a lucra-
tive office under the government of the United States, or any
other power, shall be ineligible to any civil office of profit in
the state, it has been held that a notary public became incom-
petent to retain his office when appointed to another federal
lucrative office.** Some statutes also prohibit notaries from
holding such lucrative offices, and the acceptance of the incom-
patible office operates to vacate the notary's office.** In the

trin re Opinion of Justices, 78 Gas. 19140 202; Van Dorn t. Men-

N. H. 621, 99 Atl. 999, L. B. A. gedoht, 41 Neb. 525, 59 N. W. 800.

1917D 286. See Terry v. Klein, ai State v. Davidson, 92 Tenn.

133 Ark. 366, 201 8. W. 801. 531, 22 S. W. 203, 20 L. R. A. 311.

18 Third Nat. Bank of Ohatta- See post, {§ 37-90.

nooga V. Smith (Tenn.), 47 8. W. ta State v. Clarke, 21 Nev. 338,

1102; State v. Davidson, 92 Tenn. 31 Pac. 545, 18 L. B. A. 313, 37

631, 22 8. W. 203, 20 L. B. A. 311. Am. St. Bep. 617; Biencourt v.

t» Harbour-Pitt Shoe Oo. v. Parker, 27 Tex. 558.

Dixon, 22 Ky. L. Bep. 1169, 60 S. 88 The position of a deputy au-

W. 186. ditor of a county is a lucrative of-

80 Third Nat. Bank of Ohatta- fice within a statute, so that the

Booga V. Smith (Tenn.), 47 S. W. acceptance of such office vacates

1102; Nicholson v. Eureka Lumber the notary's office. Sharp v. State,

Co., 160 N. 0. 33, 75 S. E. 730, Ann. 54 Ind. App. 182, 99 N. E. 1072.



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8 NOTARIES PUBLIC. [§11

same way, notaries may be disqualified from acting when a
transaction is involved in which they a3re personally interested.'*

A person holding a subordinate office as messenger or libra-
rian in the office of a district attorney has been held not pre-
vented from also acting as a notary public, as the offices were
not incompatible.*' Similarly, the office of deputy county clerk
and that of notary have been held not incompatible.*' And a
county attorney has been held not disqualified from being a
notary, although a constitutional provision existed preventing
officers from holding two positions.*^

§ 11. Oath of Office. — ^Ldke other public officers, notaries
are usually required to take an oath of office. Such oath is
usually subscribed by the notary and attached to the bond,
when filed. The failure of a notary to properly take his oath
may render him a mere de facto officer."

§ 12. /Bond. — Notaries are usually, if not always, required
to file a bond for a given sum, with sureties, approved by some
state officer, usually the secretary of state, assuring the faith-
ful performance of their duties."

In Eouisiana, notaries public continue in office so long as
they renew their bonds, unless suspended by the court. Fail-
ure to file their bond with the auditor of public accounts may
be a just cause for their suspension."

§ 13. Term of Office.— The term of office of a notary, as
fixed by statute, varies in the diflferent states. Usually these
officers are appointed at large, and do not succeed any particu-
lar notary whose term has expired. Death terminates the office,
and there is no vacancy for which another notary may be ap-
pointed.** In some states, however, they are appointed for a
fixed period of time, or until their successors are qualified.
Under such a statute it has been held that a notary may con-
tinue in the discharge of his duties for a reasonable length of

84 See post, i 21. " See { 16, post.

85 Merzbach v. City of New York, 89 See ( 31 et seq,, post.

163 N. Y. 16, 57 N. E. 96. 40 Monroe v. Liebman, 47 La.

86 Friedman v. Craig, 77 W. Va. Ann. 155, 16 So. 734.

223, 87 S. E. 361. 41 People v. Edleman, 152 Cal.

87 Figures v. State (Tex. Civ. 317, 92 Pac. 846.
Ipp.), 99 8. W. 412.



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§ 15] THE OFFICE AND ITS RBQUIBEMENTS. 9

time after his commission has expired, but the hold-over clause
of the statute is not to be construed as authorizing unlimited
terms.** The question is one involving de facto oflScers,** and
notaries should not perform acts after their term of office has
expired, but should immediately seek a renewal of their com-
mission.

§ 14. Bemoval-from Office; Suspension or Forfeiture. —
Where the term of office of a notary is at **the pleasure of the
governor," he is subject to removal, but if the statute fixes a
definite period of time as his term of office, the governor is
powerless to remove the notary until such time expires.** Some
statutes contain more or less definite provisions concerning re-
moval, providing for hearing and notice. And in fact the usual
proceedings are by a hearing before a referee, after which the
governor acts. An appeal to the courts may be had by the
removed officer, after the action of the governor.** Such pro-
ceedings are usually for some breach of official duty, or mal-
feasance, and under some statutes, notaries may be suspended
for just cause,*® and in one state proceedings were brought
to forfeit the office for a breach of a constitutional provision
prohibiting public officers from accepting free passes.*'

On removal from office, by expiration of term, death or other-
wise, the statutes frequently require the notary or his repre-
sentative to deposit with some public officer, usually the clerk
of the county, all records and papers of an official character,
within a certain period after such removal.

§ 16. Officers Ex Officio Notaries. — In a number of states,
various officers are ex officio notaries and have the powers and

4t Sandlin v. DowdeU, l43 Ala. 46 State v. Larescbe, 2S La. Ann.

518, 39 So. 279, 5 Ann. Gas. 459. 26. In Louisiana, notaries public

4SSee ( 16, post. ^ continue in office so long as they

44 People V. Jewett, 6 OaL 291. renew their bonds, unless suspended

A constitutional proyision authoriz- by the court. Failure to file their

ing the removal of officers at pleas- bond may be just cause for suspen-

ure, if their term was not fixed by sion, but the code does not provide

the constitution or declared by law, for its vacating the office. Monroe

would not apply to notaries whose v. Liebman, 47 La. Ann. 155, 16

term of office was fixed at two So. 734.

years. People v. Jewett, 6 Cal. 291. 47 People v. Rathbone, 145 N. Y.

45Cohn V. Butterfield, 89 Neb. 434, 40 N. E. 395, 28 L. B. A. 384«
849, 132 N, W. 400.







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10



KOTASIES FUBLIO.



[§ 16



duties of regularly appointed notaries. Thus justices of thg
peace have been held to be ex officio notaries under some stat-
utes.*' It has been said, however, that foreign governments re-
fuse to recognize the acts of such ex officio notaries.**

§ 16. De Facto Notaries. — ^A de facto officer is one who per-
forms the duties of an office with apparent right, and under
claim and color of an appointment, but without being actually
qualified in law so to act.*® Under this definition, de facto
notaries may exist, as, where a notary who is commissioned,
holds himself out as such, performs the usual acts of a notary,
and is reputed to be a notary.** The performance of a single
act as notary is not sufficient to constitute a notary a de facto
officer. There must be proof of other acts, or a general recog-
nition of the notary as such.** As instances of de facto notaries,
are those officers who are appointed and act as notaries but
who are ineligible because of sex,** or who are not citizens,**
notaries who are not duly commissioned,** who fail to properly
take their statutory oath,** or to file their bond,*'' who act after



48 0oree v. Wadsworth, 91 Ala.
41C, 8 So. 712; Dennistoun & Co.
V. Pottfl, 26 Miss. 13; Rule v. Rich-
ards, — Tex. Civ. App. — , 149 8.
W. 1073; Gilleland v. Drake, 36
Tex. 676.

49 Gilleland v. Drake, 36 Tex.
676.

BOCyc. Law Diet. 249.

M Davenport v. Davenport, 116
La. 1009, 41 8o. 240, 114 Am. St.
Rep. 575; Third Nat. Bank of
Chattanooga v. Smith (Tenn.), 47
S. W. 1102.

M Pilkington v. Potwin, 163 Iowa
86, 144 N. W. 39; Hughes v. Long,
119 N. C. 52, 25 S. E. 743; Bien-
court V. Parker, 27 Tex. 558.

68 Third Nat. Bank of ChatU-
nooga V. Smith (Tenn.), 47 S. W.
1102; Von Dom v. Mengedoht, 41
Neb. 525, 59 N. W. 800.

MAn alien who is duly commis-



sioned as a notary and qualifies by
giving bond as the law requires,
has color of title to the office, and



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