Frederick Mortensen Hinch Edward Mills John.

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

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redemption, one year. JUDGMENTS — do not create a lien. The lien
is created by the attachment which holds for thirty days after judgment
on personal property and five months on real property.

I 321. Vlrgbiia— ACKNOWLEDGMENTS— may be taken by a clerk
of the court, a justice, commissioner in chancery of a court of record ^
OK a notary within the United States, or a commissioner appointed by
the governor within the United States, clerk of any court out of this
state within the United States, or under official seal; any ambassador,
minister plenipotentiary, minister resident, charge d'affaires, consul
general, consul, vice consul, or commercial agent appointed by the gov-
ernment of the United States to any foreign country, or the proper
officer of any court of such officer, the mayor or other chief magistrate
of any city, town, or corporation therein. Notary must state when his

term expires ("My term expires "). Married woman must plainly

indicate name commissioned under. Notaries public or other officers who
are stockholders in a corporation can take its acknowledgments, provided
they are not otherwise interested. Acknowledgments taken outside the
state by a notary must be certified as to his official character by any
court of record, the mayor, or chief magistrate of any county, city, town
or borough, or under the great seal of the state, kingdom, etc., where
the notary resides. PERSONALLY KNOWN— or identified to officer, is
required. WITNESSES— two to a deed or will. PRIVATE SEAL—
scroll required. WOMEN — can convey separate estate. May unite
with husband to dispose of dower. Minor wife may sell by court pro-
ceedings. Separate examination of wife not required. DOWEB AND
CURTESY — one- third life, and are conveyed by jointure. HOME-
STEAD — exemption, $2,000; conveyed by jointure. POWER OP AT-
TORNEY — may convey by power of attorney, husband to join wife if
outside the state, same as by deed, acknowledged, signed in presence of
two witnesses, and recorded. ACTION — ^to recover land limited to
fifteen years. ESTATES TAIL— limited to life in being. JUDGMENT
LIENS— limited to twenty years. MECHANIC'S LIENS— limitation of
suit to enforce, twelve months. TAX — redemption and limitation, five

may be taken before a judge of the supreme court, the clerk, deputy
clerk, judge of the superior court, clerk or deputy thereof, a justice of
the peace, county auditor or deputy, a notary public or United States
commissioner. IN ANY OTHER STATE — same form as prescribed in
this state, and before anyone there authorized, or any commissioner
appointed by the governor of this state for such purpose. Unless it
be taken before a commissioner or by the clerk of the court of record
or by a notary public or other officer having a seal of office, it shall
have attached a certificate of the clerk of the court of record, under

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186 KOTARIES ^UBLIO. [§ 323

the seal of said court of said county or district, or a certificate of any
other proper certifying officer of the county or district that the person
was such officer, that he is authorized and that he believes the signa-
ture genuine. IN FOREIGN COUNTRIES— before any minister pleni-
potentiary, secretary of legation, charge d'affaires, consul general, consul,
vice consul or commercial agent of the United States, or before the
proper officer of any court of the country, or a mayor or chief magis-
trate of any city, town or municipal corporation or a notary. The per-
son taking shall certify by writing on, or annexing to, the instrument,
under his official seal, in substance, that the instrument was ac-
knowledged by the persons whose names are signed thereto as grantors
before him as such officer with the date of such. Such certificate shall
be prima facie evidence of the facts stated. Same shall be admitted
to record in this state. Certified copies by the county auditor shall be
received in evidence. INDIAN — conveyances shall be by deed, ac-
knowledged before a judge of a court of record. The judge shall
explain to the grantor the contents and the effect And so certify in
the acknowledgment, shall duly examine and approve same before,
record. PERSONALLY KNOWN — or identified to the officer and per-
sonal appearance required. WITNESSES — two required to a deed or
will. PRIVATE SEALS— abolished. WOMEN— age to convey, eighteen
or when married. Can convey their own separate property same' as the
husband. Separate examination not required. DOWER AND CURTESY
— community system prevails. HOMESTEAD — dwelling house and land
on which situated; conveyed by jointure. POWER OP ATTORNEY—
conveyance by, to be acknowledged, signed and recorded, same as a
deed. Either husband or wife can so convey their separate property.
ACTION— to recover land limited to ten years. JUDGMENT — ^redemp-
tion, one year; lien limited to seven years. MECHANIC'S LIEN — ^fore-
closure within eight months. MORTGAGE — redemption, one year; lien
seven years. TAX — redemption, three to four years; lien seven years.
DEEDS, CONTRACTS — powers of attorney or other writings to be ad-
mitted to record, shall be acknowledged by the grantor or proved by two
witnesses. IN THE UNITED STATES — instruments recorded upon the
certificate of acknowledgment of a justice, notary, recorder, prothonotary
or clerk of any court within the United States, or a commissioner ap-
pointed by the governor of this state, written or annexed to the same.
IN A FOREIGN COUNTRY— before and under the hand and official
seal of any minister plenipotentiary, charge d'affaires, consul general,
consul, deputy consul, vice consul, consular agent, vice consular agent,
commercial agent or vice commercial agent, appointed by the govern-
ment of the United States to such country, or of any proper officer of
any court of such country, the mayor, or chief magistrate of any
city, town or corporation therein. PERSONALLY KNOWN — the
grantor's writing to be acknowledged or proved by two witnesses before
a notary; same stated in the certificate of acknowledgment. WIT-
NESSES — ^none to deed if acknowledged, two If not; two to a wilL

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PBIVATE SEALS— scroll required. WOMEN— age to convey, twenty-
one; married convey as if single. Separate examination not required.
DOWEB AND CURTESY— one-third. Conveyance by jointure of hus-
band and wife. HOMESTEAD— exemption, $1,000. POWER OP AT-
TORNEY — convey by, same as by deed. ACTION — ^to recover land
limited to ten years. ESTATES TAIL — ^limited to life in being. JUDG-
MENT— limitation, ten years. MECHANIC'S LIEN— record in sixty
days; foreclosure within nine months. TAX — redemption, one year.
LIENS — all limited to ten years for closing.

I 324. WlBC0n8ii>— ACKNOWLEDGMENTS— conveyance of land is
by deed, signed, sealed and acknowledged. IN THE STATE — ^taken
before judges of courts of record, clerk of, court commissioner, county
clerk, register of deeds, notary, justice of the peace, commissioners of
the United States federal and district courts in the state, police justices.
OUTSIDE THE STATE— any officer so authorized by the laws of that
state. Signed and sealed. Certificate of secretary of state or clerk of
the county court of record, under their official seals, to be attached,
stating that the officer taking was at the time so authorized. May be
executed according to the laws of the state and acknowledged before
any judge or clerk of a court of record, notary public, justice of the
peace, master in chancery, or other officer so authorized by the state, or
before a commissioner appointed by the governor of this state. In a
military post, by its commanding officer. Acknowledgments, unless
taken by a commissioner, a clerk of a court of record, with its seal
attached, a notary with his seal attached, or the commanding officer
of a military post, shall have attached the certificate of the clerk, or
other proper certifying officer of a court of record of the county or dis-
trict, under his seal of office, stating that the person subscribing to the
certificate of acknowledgment was such officer at the date thereof, that
he believes the signature genuine and acknowledged according to the
laws of the state. The commissioner, clerk of court, notary or com-
manding officer, shall state if it is executed according to the laws of
the state. OUTSIDE THE UNITED STATES— any officer authorized
by the laws of this state, any United States ambassador, minister, envoy
or charge d 'affaires, commissioner of state, notary public, consular officer,
agent appointed, under their hand and seal of office. Notaries'
certificate to state that it was acknowledged according to the laws of
the country. PERSONALLY KNOWN — to and personal appearance be-
fore the officer required or proved. WITNESSES — ^two to a deed or
will. PRIVATE SEALS— the word "Seal" or initials "L. S." is
sufficient. MARRIED WOMAN — of full age, eighteen, may convey her
lands jointly or separately from her husband, same as if she were
unmarried. No separate examination necessary. Insane wife's dower
released upon petition of husband to the court, within twenty to sixty
days. DOWER— one-third for life; conveyed by wife as if unmarried,
jointly or separately from husband. CURTESY— -one- third for life.
HOMESTEAD — exemption, 40 acres, or one-fourth acre in city or vil-
lage of value of $6,000. Conveyance, wife must join. POWER OP

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188 NOTARIES PUBUO. [§ 325

ATTORNEY — so conTeyed when acknowledged, signed and recorded
same as a deed. ACTION — to recover land limited to twenty years.
Deeds recorded pass title. ESTATES TAIIr— limited to lives in being.
JUDGMENT — ^redemption, one yearj lien limited to ten years. ME-
CHANIC'S LIEN — filed in thirty or sixty days, or six months, redemp-
tion, one year after for suit. MOBTGAGE — ^redemption, one year.
TAX — redemption, three years.

I S26. Wyoming — Conveyance of land may be by deed signed by the
grantor if of age, or by his agent or lawful attorney, acknowledged or
proved and recorded. ACKNOWLEDGMENTS— IN THE STATE— be-
fore any judge or clerk of a court of record, or a court commissioner
appointed under or by authority of the laws of the United States,
county clerk, justice of the peace, or notary, the officer shall certify with
the date under his hand and seal of office if he have one. OUTSIDE
THE STATE — ^by any officer authorized by the state or country under
his official seal, if he have none his certificate must be authenticated
by the clerk of a court of record or a county clerk having a seal, certi-
fying that he is authorized to take, that his signature is genuine.
Notaries public and justices of the peace and commissioner of deeds
for Wyoming shall add the date their commission expires. IN FOR-
EIGN COUNTRIES — before a consul general, consul, or vice consul of
the United States, same to certify over their hand and official seal.
PERSONALLY KNOWN— to officer required. WITNESSES— one to a
deed; two to a will. PRIVATE SEALS— abolished, except those of
corporations. WOMEN — age to convey, twenty-one years. Can convey
separate estate. Acknowledgment same as if sole, to sign and acknowl-
edge, freely and voluntarily. She shall be fully apprised of the con-
tents and her rights and the effect of her signing when homestead is
released. DOWER AND CURTESY— abolished. Descent of property
according to statute. HOMESTEAD — exemption, $2,500. Wife to join
in releasing it, and apprised of her rights. POWER OF ATTORNEY—
can so convey; same manner as by deed. Husband or wife may con-
stitute the other his or her attorney in fact. ACTION — ^to recover land
limited to ten years. JUDGMENT — redemption, six months; lien lim-
ited to five years. MECHANIC'S LIENS— contractor files in four
months, others in ninety days; limit of lien, six months. MORTGAGE —
redemption, six months. TAX — ^redemption, three years.

taken before register or deputy, magistrate, justice of the peace, judge
or register of a court having a seal, or notary. OTHER BE^TISH
PROVINCES — judge of a court, clerk or register having a seal, notary,
magistrate having a seal, any person so commissioned by the lieutenant
governor. OUTSIDE THE BRITISH DOMINIONS— British ambassa-
dor, charge d'affaires, minister, consul, consular agent resident, judge
of a court having a seal, a notary, certified as such by a British am-
bassador, charge d'affaires, minister, consul or consul agent, or the
governor of the state, etc. Describe property clearly. WITNESSES —
one to a deed; two to a will. SEALS — scroll seal to a deed.

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§ 327. Deflnitioiis. — ^A deposition is the testimony of a wit-
ness reduced to writing, in due form of law, by virtue of a
commission or other authority of a competent tribunal, or
according to the provisions of some statute law, to be used
on the trial of some question of fact in a court of justice. In
its generic sense, the term embraces all written evidence veri-
fied by oath, and includes affidavits, but in legal language, a
distinction is maintained between depositions and affidavits.^

A deposition de bene esse is one taken conditionally; when
a witness is sick, unable to attend the trial, or likely to die. In
such cases their testimony is taken conditionally, that they
will attend the trial and give oral testimony if possible.*

Deposition dedimus potestatem is a writ issued by a court,
judge or justice commissioning private persons to act as judge,
examine a witness or such act. It means ''we have given

Letters rogatory is an instrument sent in the name and by
the authority of a judge of a court to another court, requesting
the latter to cause to be examined, upon interrogatories filed
in a cause pending before the former, a witness who is within
the jurisdiction of the judge or court to whom such letters are

A witness is one who gives oral testimony in a judicial pro-
ceeding. If his testimony be given by deposition, he is known
as a "deponent"; if by affidavit, as an ** affiant."*

A subpoena, in practice, is a process to cause a witness to

ICyc. Law Diet. party to sift the conscience of his

S Clark V. Dibble, 16 Wend. adversary. Ex parte Brockman,

(N. Y.) 603. 233 Mo. 135, 134 S. W. 977.
The taking of depositions de 8 2 Bl. Gomm. 351.

• bene esse are in the nature of the ^Cjc. Law Diet.; In re Marti-

old chancery practice relating to nelli, 219 Mass. 58, 106 N. £. 657.

a bill of discovery, entitling the *Cyc. Law Diet


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[§ 328

appear and give testimony, commanding him to lay aside all
pretenses and excuses, and appear before a court or magistrate
therein named, at a time therein mentioned, to testify for the
party named, imder a penalty therein mentioned. This is
called distinctively a subpccna ad testificandum. A subpoena
diLces tecum is one whereby the witness is commanded to bring
with him books or papers in his possession or under his con-
trol, to produce the same in evidence.®

§ 328. Nature of Bight to Take Depositions; Oomplianoe
with Statute.— The common-law courts had no power to issue
commissions to take testimony, althougl^ such power was in-
herent in courts of equity. To remedy this inconvenience stat-
utes have been enacted in the various states, authorizing the
courts to issue such commissions, and accordingly the power
exists in either courts of law or equity, but as a result the
power is statutory in origin.'' Being a statutory privilege, the
right to take and use a deposition can be exercised and en-
forced only in the manner and to the extent provided by stat-
ute.' The right will not be enlarged by implication or construc-
tion,* and the statutes authorizing the taking of depositions
must be strictly complied with.^* The taking of a depo-
sition to perpetuate testimony is not favored and the right to
take must clearly exist.**

6Cyc. Law Diet.

THUl V. Thomas B. Jeffery Co.,
292 lU. 490, 127 N. £. 124; Bohen
y. North American Ldfe Ins. Co.,
— Iowa — , 177 N. W. 706.

The mode of trial at common
law is by the production of wit-
nesses and their oral examination
in open court, and depositions ean
only be substituted by statutory
authority. Hutchins ▼. Hutchins^
41 App. Cas. (D. C.) 367.

SLezinsky v. Superior Court, 72
Cal. 510, 14 Pac. 104; Burnett v.
Prince, 272 Mo. 68, 197 S. W. 241;
Taylor v. Thomas, 77 N. H. 410,
92 AtL 740; State ez rel. Geissler
V. Truax, 96 Wash. 1, 164 Pac

The right to take depositions is
in derogation of the common law
and wiU be strictly construed.
Clark's Adm'r v. Wilmington Sav.
Bank, 89 Vt. 6, 93 Atl. 265. •

9£z parte Alexander, 163 Mo.
App. 615, 147 S. W. 521.

10 Clegg V. Gulf, C. ft S. P. By.
Co., 104 Tex. 280, 137 S. W. 109;
Clark's Adm'r v. Wilmington Sav.
Bank, 89 Vt. 6, 93 AtL 265.

The statute must be substantial-
ly complied with. Corgan v. An-
derson, 30 m. 95.

11 The preservation of evidence
in this mode is not favored, and
wiU be permitted only to prevent
the failure of justice. Taking a
deposition merely to ascertain the

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§ 330] DEPOSITIONS. 191

The power to issue a commission rogatory, or letters roga-
tory, is inherent in courts to prevent the failure of justice,
and is not dependent upon statutory provisions, but exists
because of the international good will prevailing, in all courts
of civilized countries.^*

What Witnesses or Persons Blay Be Examined by
Deposition. — Usually, the statutes merely provide for the ex-
amination of witnesses by deposition, without specifying fur-
ther. It has been held that the word ** witness" includes par-
ties to the action who are competent and who may be com-
pelled to give evidence.^* In some states, female witnesses
are not obliged to testify in court as a general rule, and the
statutes provide for the taking of their evidence by deposi-
tion.** Usually, the witnesses who are examined by deposition
are these who are aged, infirm, sick, or who live without the
county of the place of trial, or who are about to journey to
other states or countries.**

§ 330. Manner of Taking Depositions.— The party desiring
the testimony makes affidavit to the court where the suit is in
progress, or is to be tried, stating the cause, the name anS
residence of the witnesses whose testimony is desired, and the
names of the adverse parties, or their attorney, and their place
of abode. Also a list of interrogations to be put to the witness.
The statement is also made as to why the witness cannot be
present at the trial, which is usually age, infirmity, sickness,
about leaving the county or state, resident of another county
or state, etc. If the court or judge to whom the application
is made is satisfied that the deposition is necessary, a commis-
sion to take issues under his hand and the seal of the court
by the court clerk. Reasonable notice (usually determined by
the court, but sometimes by statute) is given to the adverse

eyidenee in advance of the trial, 746, 105 S. E. 289 (construing

* and for the purpose of annoying Acts 1898, p. 56, | 1, amending

and oppressing the adverse party, Civ. Code 1895, § 5315, Civ. Code

is an abuse of judicial authority 1910, | 5910).

and process. Quinan v. Beaddy, H Bennett v. Patten, 148 Qa. 66,

79 Okla. Ill, 191 Pac. 602. 95 S. E. 690.

is In re Martinelli, 219 Mass. 58, 16 See post, | 350 et $eq., Statu-

106 N. E. 557. tory Bequirements.

UMcAlpin V. Byan, 150 Oa.

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party, of the time and place of the taking, name or names of
the witnesses, or their attorney of record, and their residences
if known. A list of interrogations to be put, which list may be
added to by the adverse party or his attorney in the nature
of cross-interrogatories. On the return of which the court is-
sues the commission inclosing same, with full instructions and
a list of the interrogatories and cross-interrogatories, if any,
sending same to the commissioner, selected either by the par-
ties themselves or by the court.

At the appointed day, place and hour, the commissioner calls
the court to order, swears the witness to tell the truth, the
whole truth, and nothing but the truth. The prepared inter-
rogatories are then answered by the witness, writing same
under each question, in the presence of the commissioner, or
by some one appointed by him in his presence. The statate
regulates the presence of the parties to the case, either in per-
son or by attorney. Usually where the testimony is taken
by written interrogatories, the parties or their attorneys are
absent. After the deposition is taken it is read to or by the
witness, errors corrected, and then signed by him. The com-
missioner then adds his certificate, stating in it that the party
deposing was duly sworn by him before taking, that the in-
terrogatories were answered and subscribed to in his presence,
adding who were present, either attorneys or parties in the
case. Some states permit it being taken in shorthand and
afterwards typewritten. Signed by the commissioner. The
deposition and all papers connected with the taking are then
inclosed in an envelope, sealed, the title of the case and the
commissioner's name indorsed on the back over the seal, di-
rected to the court issuing the commission, or if the parties
have so agreed, to the party who instituted the taking. Other-
wise they are mailed or delivered in person to the clerk of the
court, who notes the time of their receipt and party delivering,
on the envelope, and places the same on file for use when called
for by the court, or the parties.

Being of statutory origin, the requirements as to the man-
ner of taking depositions vary in the diflPerent states. The
more general requisites will, however, be referred to in detail.

§ 331. Taking Depositions for United States Courts. — ^Dep-
ositions may be taken before a notary public in any civil cause

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§ 332] DEPOSITIONS. 193

pending in a United States, district or circuit court, when
the witness lives at a greater distance from the place of trial
than one hundred miles, or is bound on a voyage to sea, or is
about to go out of the United States, or out of the district in
which the case is to be tried, and to a greater distance than
one hundred miles from the place of trial, before the time of
trial, or when he is aged and infirm. Any person may be com-
pelled to appear and depose in the same manner as witnesses
may be compelled to appear and testify in court. ^® Every per-
son deposing shall be cautioned and sworn to testify the whole
truth, and carefully examined. His testimony shall be reduced
to writing by the magistrate taking the deposition, or by
himself in the magistrate's presence, and by no other person,
anrf shall, after it has been reduced to writing, be subscribed
by the deponent."

In addition to the mode of taking the depositions of wit-
nesses in causes pending at law or equity in the district and
circuit courts of the United States, it shall be lawful to take
the depositions or testimony of witnesses in the mode pre-
scribed by the laws of the state in which the courts are held.*'
Every deposition taken shall be retained by the magistrate
taking it until he delivers it with his own hand into the court
for which it is taken ; or it shall, together with a certificate of
the reasons as aforesaid of taking it and of the notice, if any,
given to the adverse party, be by him sealed up and directed
to such court, and remain under his seal until opened in

§ 332. Interrogatories.— Where a deposition is taken in
conformity to a statute providing for interrogatories, direct
and cross, in writing, the court has no power to permit oral
cross-examination.** In some states, the party may elect to
take upon oral interrogatories, and when such election is had, a
deposition taken upon written interrogatories may be sup-

WU. 8. B6V. Stat. 1878, sec. 863. WU. S. B«v. SUt. 1878, see.

nid. Mc. 864. 865.

18 Id., 8upp., vol. 2, p. 4; Ex iOBurnham v. Stoutt, 36 Utah

parte Fisk, 113 U. S. 713, 28 L. 250, 99 Pac. 1070.

F.d. 1117, 6 Sup. Ct. 724. tl Lewii v. Ksh, 40 HI. App.

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 23 of 50)