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though he does not possess the
qualification of citizenship as re-
quired by statute, he is a de facto
officer and his acts as such officer
are valid. Wilson v. Kimmel, 109
Mo. 260, 19 S. W. 24.

66 Pilkington v. Potwin, 163
Iowa 86, 144 N. W. 39; Hamilton
V. Pitcher, 53 Mo. 334.

66 Buckley v. Seymour, 30 La.
Ann. 1341, where a deputy notary
took his oath before his principal
instead of a justice of the peace,
and where it was contended that he
had not taken his proper oath.

67 Notary duly appointed but
who failed to file bond in the man-
ner prescribed by law, is officer de
facto. Eeeney v. Leas, 14 Iowa

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the expiration of their term,** or who accept incompatible
offices, or are disqualified to act because of interest.^

As far as the public and third parties are concerned, there is
no distinction between the acts of de facto and de jure officers.
The only difference between the two is that the former may be
ousted by direct legal proceedings in the nature of quo war-
ranto, and the latter cannot be so ousted.^ The acts of a de
facto notary are not subject to attack at the instance of third
parties.** If an officer is in his place by appointment or elec-
tion, and proceeds in the regular discharge of his duties, though
he has not in all respects, in qualifying, complied with the stat-
utes, his acts are entitled to credit. The statutes do not de-
clare that the acts of the notary who fails to comply with their
proYisions shall be null and void, but they provide for a pen-

§ 17. Jurisdiction; Place of Performing Duties. — ^Notaries
are usually appointed to act within a certain county,** or with-
in certain territorial limits designated in their commission,**
and in such cases they have no authority to act elsewhere. In
many states, however, they are authorized by statute to act in
other counties, anywhere in the state.** The state is the limit
of their jurisdiction. A notary appointed in one state has no
power or authority by virtue of his commission to perform his
duties or acts in another state.**

§ 18. Delegation of Duties; Deputies and Clerks.— As a gen-

M Sandlin v. Dowdell, 143 Ala. ft Go. v. Getchell, 13 Gal. App. 458,

518, 39 So. 279, 5 Ann. Gas. 459; 110 Pac. 331; T. W. Barhydt ft Go.

Smith V. Meador, 74 Ga. 416, 58 v. G. N. Alexander ft Co., 59 Mo.

Am. Bep. 438; Penn ft Watson v. App. 188; Allgood v. State, 87 Ga.

McGhee, 6 Ga. App. 631, 65 S. E. 668, 13 S. E. 569.

686. 64 Com. V. Schwieters, 29 Ky. L.

» Sharp V. State, 54 Ind. App. Bep. 417, 93 S. W. 592.

182, 99 N. E. 1072; Titus v. John- 66 Guertin v. Mombleau, 144 HI.

Bon, 50 Tex. 224. 32, 33 N. E. 49; Lamb v. Lamb,

eo Sandlin v. Dowdell, 143 Ala. 139 Mich. 166, 102 N. W. 645;

518, 39 So. 279, 5 Ann. Gas. 459. Sullivan v. Hall, 86 Mich. 7, 48 N.

61 Wilson V. Kimmel, 109 Mo. W. 646, 13 L. B. A. 556; Neely v.

260, 19 S. W. 24. Morris, Tanner ft Co., 2 Head

««Keeney v. Leas, 14 Iowa 464. (Tenn.) 595, 75 Am. Dec. 753.

6tA notary cannot act outside 66 Harris' Lessee y. Burton, 4

of his countj. Fairbanks, Morse Har. (Del.) 66.

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eral rule, the authority of a notary cannot be delegated and
he cannot appoint a deputy or derk.*^ He must perform the
acts required himself, and is even prevented from having a
■ duty intrusted to him performed by another notary.** In some
states, deputies are permitted by statute, however,** and a cus-
tom may exist whereby the acts of notaries are performed by

§ 19. Powers and Dnties in OeneraL— The powers of a no-
tary public, which is a very ancient oflSce, are largely founded
on customary law.''^ He is recognized as a necessary oflBcial in
nearly all civilized countries. He is recognized by the law
merchant, and his official acts are received as evidence, not only
in his own but in 'all countries. His duties are often of great
variety and importance, consisting, for the most part, in protest-
ing inland and foreign bills of exchange, promissory notes, au-
thenticating their dishonor by the refusal of the drawee to accept
or pay them on presentatipn or when due. Also the authentica-
tion of transfers to property, administering the oath as to the
correctness of accounts or statements of important documents,
which are often necessary for transmission to points where
the parties directly in interest are unable to appear in person ;
the taking of depositions for actions pending in foreign or dis-
tant courts ; the taking of the affidavits of mariners and masters
of ships, their protests, etc., requiring care and judgment. In
all such cases the notary's certificate or jurat, when accom-
panied with his official seal of office and proper certificates of
his official character, if the act is to be used beyond his own
county or state, is received as prima facie evidence.''*

67 Ocean Nat. Bank v. Williams, ploy depnties or clerks is a fact to
102 Mass. 141; Cribba v. Adams, 13 be proved. Cribbs v. Adams, 13
Gray (79 Mass.) 597; Smith v. Gray (79 Mass.) 597.

Gibbs, 2 Smedes & M. (Miss.) 479; Tl Wood v. St. Paul City By. Co.,

Gawtry v. Doane, 51 N. Y. 84. 42 Minn. 411, 44 N. W. 308, 7 L. B.

68 Commercial Bank v. Barksdale, A. 149.

36 Mo. 563. 7t A notary pnblic is an officer

69 See Buckley v. Seymour, 30 known to the law of nations and
La. Ann. 1341. his official acts receive credence,

70 Miltenberger v. Spaulding, 33 not only in his own country, but in
Mo. 421; Cribbf v. Adams, 13 Gray all others in which they are used
(79 Mass.) 597. The existence of a as instruments of evidence. Kirk*
enatom whereby notariea may em- sey ▼. Bates, 7 Port. (Ala.) 529.

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Usually the statutes determine and state the extent of the
powers of notaries, and generally they are empowered to take
acknowledgments, administer oaths, take depositions, protest
and perform duties with respect to commercial paper, etc.''' If
a statute provides what ofl&cers may take acknowledgments,
and does not include notaries, such an acknowledgment by a
notary is of no effect.''* The statutes should always be con-
sulted in determining what powers notaries of a given state
possess. In the performance of duties, relating to depositions,
acknowledgments and the administering of oaths, notaries fre-
quently have the powers of justices of the peace.'* In some
states they are ex officio justices of the peace,''* and in some
states they may imprison witnesses for contempt.'^ In Louisi-
ana, the powers and duties of notaries are very extensive.'* In
West Virginia, notaries are conservators of the peace. The
authority of notaries as conservators of the peace, when not
otherwise prescribed by statute, is limited to the powers pos-
sessed by such conservators at common law. Such duties in-
cluded the power to prevent and arrest for breaches of the
peace, but not to arraign and try the offender.''*

It is no part of the notary's duty to receive money from or
for anybody.**

§ 20. Importance of Office. — ^From the manner of appoint-
ment of notaries, a consideration of their powers and duties,
and the fact that their certificates are received as prima facie
evidence of their acts, it must be noted that the office is of

TtSee post, K 37-90. See also, Bep. 408; In re CoUins, 235 Fed.

in general as to these powers, the 937.

▼arious chapters relating to the 7»HoweU v. Wysor, 74 W. Va.

subject involved. 589, 82 S. E. 503, Ann. Gas. 1916G

74 Partridge v. Mechanics' Nat. 519.

Bank of Burlington, 77 N. J. Eq. SOHeidt v. Minor, 89 Cal. 116,

208, 77 Atl. 410. 26 Pac. 627; Detroit Sav. Bank v.

75 In re Opinion of Justices, 73 Ziegler, 49 Mich. 157, 13 N. W.
N. H. 621, 62 Atl. 969, 5 L. B. A. 496, 43 Am. Rep. 456; Doran v.
(N. S.) 415, 6 Ann. Cas. 283. Butler, 74 Mich. 643 (People v.

76 Douglass V. State, 117 Ala. Butler), 42 N. W. 273; PeUer v.
185^ 23 So. 142. Gates, 40 Ore. 543, 67 Pac. 416, 56

77 See post, ch. IV. L. R. A. 630, 91 Am. St. Rep. 579.
TtSee Schmitt v. Drouet, 42 La. See ante, ( 5. Notariet as

Ann. 1064, 8 So. 396, 21 Am. St. Agents.

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[I 21

great importance. In the performance of many duties, the
notary is required to personally know the parties with whom
he is dealing. He is frequently required to thoroughly explain
the instruments signed in his presence, and to protect not only
the interests of such subscribers, and those immediately pres-
ent, but also the interests of others who are required to review
or rely upon his statements. Carelessness or mistakes of a no-
tary may cause grave complications, subjecting that officer not
only to the disgrace of removal from office, but also to penal-
ties, punishment for crime, and civil liability for damages, a
matter which involves his bondsmen as well as himself. No-
taries should be familiar with the law, if possible, and should
have a thorough acquaintance with the instruments that they
authenticate, the proper days for execution of the same, so
that acts are not performed on legal holidays, and in general
with all the requisites of commercial paper, deeds, powers of
attorney, depositions, etc.'*

§ 21. Disqualiflcation Because of Interest in Transaction, or
Relationship to Parties. — ^It has been held that the probate of a
deed of trust before a notary public who is a preferred cred-
itor, is invalid, upon the principle of the common law that no
one can sit in judgment upon his ovm cause,'* and as a gen-
eral proposition an officer who is a party to an instrument, or
interested therein, is disqualified from taking an acknowledg-
ment.'* This is a rule of public policy arising because of the

81 "Their responsibility is as
high as their trust, and a notary
who officially certifies as true what
he knows to be false violates his
duty, commits a crime, binds him-
self and binds his sureties."
Bochereau y. Jones, 29 La. Ann. 82.

"Notaries are intrusted' with
high and important functions.
Their certificates are made authen-
tic evidence of titles by which we
hold our lands, and by which they
pass from one to another, and
which endure from generation to
generation." State v. Ogden, 187
Mo. App. 39, 172 S. W. 1172.

See post, { 31 et acq.

tSLong V. Crews, 118 N. 0. 256,
18 S. E. 499.

tS Southern Iron ft Equipment
Co. V. Voyles, 138 Ga. 258, 75 S.
E. 248, 41 L. B. A. (N. B.) 375,
Ann. Cas. 1913D 369; Bardsley v.
Germ an- American Bank, 133 Iowa
216, 84 N. W. 1041; Horbach v.
TyrreU, 48 Neb. 514, 67 N. W. 485,
37 L. B. A. 434; Watts v. Whet-
stone, 79 S. C. 357, 60 8. E. 703;
W. C. Belcher Land Mortgage Co.
V. Taylor, — Tex. Civ. App. — ,
173 S. W. 278; Bowden v. Parrish,
86 Ya. 67, 9 8. E. 616, 19 An. St
Bep 873.

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probative force attached to the notary's certificate.** The
question of what interest or relationship will disqualify a no*
tary from acting in a transaction is, however, a rather difiS-
cult one, depending upon the facts of each case.** Usually
agents or attorneys are not disqualified unless financially in-
terested in the transaction involved,*^ although attorneys who
are notaries are frequently disqualified from taking the oaths
of their clients.*'' Stockholders who are beneficially interested
have been held disqualified from acting as notaries,** although
other decisions hold that they are qualified.** Ofl&cers of a cor-
poration who are beneficially interested, but who are not stock-
• holders, are not disqualified.** In some states, the statutes pro-
hibit a stockholder, director, cashier or other ofl&cer of a bank
from also exercising the office of notary,*^ and in other states,

64 Southern Iron ft Equipment
Co. V. Voyles, 138 Ga. 258, 75 8.
E. 248, 41 L. B. A. (N. 8.) 375,
Ann. CaA. 1913D 369.

86Horbach v. TyrreU, 48 Neb.
614, 67 N. Yf. 485, 37 L. E. A, 434.

86 Vizard v. Bobinson, 181 Ala.
349, 61 8o. 959; Nichols v. How-
son, 94 Ajk. 241, 126 8. W. 830;
Smith V. Ayden Lumber Co., 144
N. C. 47, 56 8. E. 555.

67 8ee post, § 99.

66Maddox v. Wood, 151 Ala.
157, 43 So. 968; Hayes v. Southern
Home Building & Loan Ass'n, 124
Ala. 663, 26 So. 527, 82 Am. St.
Bep. 216; Patton v. Bank of La-
fayette, 124 Ga. 966, 53 a E. 664,
5 L. B. A. (N. 8.) 592, 4 Ann. Cas.
639; Betts-Evans Trading Co. v.
Bass, 2 Ga. App. 718, 59 8. E. 8;
Smith V. Clark, 100 Iowa 605, 69
N. W. 1011. See Moreland's As-
signee V. Citizens' Sav. Bank, 97
Ky. 211, 30 8. W. 637.

69 Davis V. Hale, 114 Ark. 426,
170 8. W. 99, Ann. Cas. 1916D 701;
First Nat. Bank of Biverside v.
MerriU, 167 Cal. 392, 139 Pac. 1066;

Bead v. Toledo Loan Co., 68 Ohio
St. 280, 67 N. E. 729, 62 L. B. A.
790, 96 Am. St. Bep. 663; Eee v.
Ewing, 17 Okla. 410, 87 Pac. 297;
Keene Guaranty Sav. Bank v. Law-
rence, 32 Wash. 572, 73 Pac. 660.

90 Bank of Woodland v. Obex-
haus, 125 Cal. 320, 57 Pac. 1070;
Florida Sav. Bank & Beal Estate
Exchange v. Bivers, 36 Fla. 575, 18
So. 850. See Horbach v. TyrreU,
48 Neb. 514, 67 N. W. 485, 37 L.
B. A. 434, where it did not appear
that the notary was a stockholder,
though he was the secretary and
treasurer of the corporation inter-
ested, and where the notary was
held competent to act.

A local agent of a mortgagee
is not disqualified when not shown
to be a stockholder, or beneficially
interested. Girard Trust Co. v.
NuU, 90 Neb. 713, 134 N. W. 272.

•iSpegal V. Krag-Beynolds Co.,
21 Ind. App. 205, 51 N. E. 959;
First Nat. Bank v. Butler, 41 Ohio
St. 519, 52 Am. Bep. 94. See Com.
V. Pyle, 18 Pa. St. 519.

See post, J 8 51, 75.

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such acknowledgments have been rendered valid by statute.**
Still other decisions hold the act of an interested ^official as no-
tary voidable, and it will be set aside on proof of fraud, op-
pression or undue advantage.**

The general rule deducible is that a notary who is directly
interested in the subject-matter involved should not act as
notary.** A partner cannot take the oath of his copartner, in
a matter in which the firm is interested.** But, a notary pub-
lic having acted as agent in obtaining a loan on property for
a party is not disqualified from taking the party's acknowledg-
ment to the mortgage on the property.** A notary having
acted as such for claimant violates no law by acting subse-
quently in the same matter as the claimant's attorney.*^ In
one case where a homestead was sold and oral directions given
that the consideration received should be paid to creditors, and
the acknowledgment of the deed required was taken b^ a no-
tary who was also a creditor, but who was not instrumental
in causing the sale, or the giving of the oral directions, the
notary was held not disqualified, although he received part of
the money as a creditor.**

Ordinarily, relationship of the notary to the party involved
does not prevent him from acting. Thus a notary has been
held not disqualified from administering an oath to his father,**
and the fact that a notary was the brother-in-law of a mort-
gagee has been held not to disqualify him from taking an
acknowledgment to the mortgage.^ In Vermont, an officer is

M Maxwell ▼. Idncolii, etc., Build- M Smalley v. Bodinos, 120 Mich,

ing ft Ix)an Ass'n, 216 lU. 85, 74 353^ 79 n. W. 567, 77 Am. St Bep.

N. E. 804; Ogden Building ft Loan 602.

A8B*n V. Mensch, 196 111. 554, 63 96Penn v. Garvin, 56 Ark. 511,

N. E. 1049, 89 Am. St. Bop. 330; 20 S. W. 410.

Sawyer v. Cox, 63 111. 130. 97 Sullivan v. Hall, 86 Mich. 7,

•• Cooper V. HamUton Perpetual 48 N. W. 646, 13 L. B. A. 556.

Building ft Loan Ass'n, 97 Tenn. 98Mudra v. Groeling, 89 Neb.

285, 37 S. W. 12, 33 L. B. A. 338, 829, 132 N. W. 389.

56 Am. St. Bep. 795. 99 Kirkland v. Ferris, 145 Ga. 93,

94 See Bardsley v. German-Amer- gg s. E. 680.

ican Bank, 113 Iowa 216, 84 N. W. 1 Hinton v. HaU, 166 N. C. 477,

1041. 82 S. E. 847.

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not disqualified from acting when he is beyond the fourth de-
gree of relationship to the parties .•

§ 22. Secord of Acts. — ^Notaries are usually required to keep
a record of their ofScial acts, especially the protesting of com-
mercial paper, with service of notice of the same, the names of
the parties interested, and a description of the paper pro-
tested.' Such records are deposited with certain other officials
in case of removal from office. It has been held that a notary's
record is a public record,* and entries in such record book are
evidence of his acts after death.' But, if alive, the record is
incompetent to prove facts involved. In such case the notary
should be called as a witness. He may refer to the record for
his own satisfaction in testifying.'

§ 23. Certificate. — The acts performed by a notary public
are shovm by his official certificate or jurat. A certificate has
been defined as ''a written statement, by a person having an
official or public status, concerning some matter within his
knowledge or authority." A jurat is that part of an affidavit
where the officer certifies that the same was ''sworn'' before
him, and when and where.'' Such certificates are competent
to establish the facts involved,' if properly executed. Usually
the certificate must be properly entitled with the venue of the
county where the notary is acting,' must indicate the official
character of the notary,*' and be properly signed by the no-
tary.** These are general requirements, and the rules respect-
ing the validity of certificates and jurats vary somewhat. As
usual the statutory requirements must be carefully noted and

• Reed v. Newcomb, 62 Vt. 75, v. Potter, 131 HI. App. 334 (as to
19 Atl. 367; ChnrchiU v. Clinrchai, protest of bills of exchange); Fei-
12 Vt. 661. genspan v. McDonnell, 201 Mass.

• See §f 37-90, post. 341, 87 N. B. 624.

i Phillips V. Poindexter, 18 Ala. See ( 28, post, as to effect of

579; Bryden v. Taylor, 2 Har. J. certificate.

(Md.) 306, 3 Am. Dee. 554. 9 Beeves & Co. t. Colnmbia Sav.

6Nicholl8 V. Webb, 8 Wheat. Bank, 166 Iowa 411, 147 N. W. 879;

(U. 8.) 326, 5 L. Ed. 628. Robinson v. Cooper, 62 N. Y. Misc.

e People's Bank & Trust Co. v. 517, 116 N. Y. Snpp. 599.

AUen, — N. J. L. — -, 110 Atl. 704. 10 Worley v. Adams, 111 Va. 796,

TCyc. Law Diet. 69 8. E. 929.

8 Snblette Exch. Bank t. Fitz- H See ( 24, post,
gerald, 168 Dl. App. 240; Yanghan

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adhered to.^ The certificate must usually be made when the
acts referred to are performed. A notary taking an acknowl-
edgment cannot attach his certificate after the lapse of several
days, unless he recalls the parties, and again goes through the
acknowledgment ceremony.^

A certificate not required by law carries no presumption as
to authorization or authenticity.**

§ 24. Signature; Noting Expiration of Commission; Desig-
nation of Official Character. — ^The notary's name must be sub-
scribed to his official certificate, such as a certificate of ac-
knowledgment,** or jurat,*^ and should be written in a clear
and legible manner. In at least one state, a statute has been
enacted requiring, in addition, that the name of the notary
be printed, stamped or typewritten, so that there may be no
question as to such signature.*'' No penalty is attached for
the failure to include such printed signature, but the purpose
of the statute is obvious. In this connection the name of the
notary is required to appear on his official seal in some states.

Under some statutes, the notary public is required to file his
autograph signature with some named official at the time of
filing his bond and oath. An omission in this respect has been
held to be a mere irregularity not invalidating an acknowledg-

Following the name, the statutes frequently require a nota-
tion of the date when the notary's commission expires. Such
a statutory provision has been held directory rather than man-
datory, so that the omission did not invalidate the certificate.**
But these are holdings in line with those of the courts which
presume the acts of public officials to be correctly performed,

laSee post, II 37-90. App. 554, 86 N. E. 344.

HAlford V. Doe ex dem. First "See post, { 60.

Nat Bank of Gadsden, 156 Ala. IS In re Townsend, 195 N. Y. 214,

438, 47 So. 230, 22 L. B. A. (N. S.) 88 N. E. 41, 22 L. B. A. (N. 8.)

216. 194, 16 Ann. Cas. 921.

H Myerowich v. Emigrant Indus- 19 Harbour-Pitt Shoe Co. v. Dix-

trial Sav. Bank, 170 N. Y. Supp. on, 22 Ky. L. Bep. 1169, 60 S. W.

38. 186; Brown Mfg. Co. v. Gilpin, 120

15 Clark V. WOson, 127 Dl. 449, Mo. App. 130, 96 S. W. ^69; Sheri-

19 N. E. 860, 11 Am. St. Bep. 143. dan County v. McKinney, 79 Neb.

16 Deputy V. Dollarhlde, 42 Ind. 223, 115 N. W. 548.

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and which will not penalize third persons for the mistakes of
officers. In some states, the omission of the date of expiration
of the commission may result in the imposition of a penalty,
or removal from office.

The notary's certificate must also designate his official char-
acter. The characters **N. P.*' have been held to clearly indi-
cate the office of notary public,*^ especially where the notary's
official seal was attached.** Also, the words ** Notary Public"
have been held to indicate the office sufficiently when the body
of the acknowledgment certificate also contained the usual

statement that the parties appeared ** before me, J R ,

notary public in and for said county. "••

§ 26. Official Seal. — ^A seal is a plate or disc of metal, usually
of circular form, having some device engraved upon it, with
which an impression may be made on wax or other substance,
on paper or parchment, for the purpose of authentication. Of
this description are the seals of a government, the seals of
courts, of public notaries and other public officers.** Notaries'
seals are usually of a certain size, circular in form, having en-
graved thereon in the outer circle the name of the notary, his
county and state, and in the inner circle the words, ** Notary
Public." In some states the state coat of arms is also re-
quired. Some statutes contain specific directions as to notaries'
seals, and in some states there are no directions, the matter
being left to custom.** The statutes of Nebraska do not require
the initials or name of the notary to be engraved on his seal.**

Notaries are always required to provide their own official
seal,** with which they authenticate their official acts.*' The

so Bowley v. Berrian, 12 HL 198; S6 Smith v. Meador, 74 Ga. 416,

Worley v. Adams, 111 Va. 796, 69 58 Am. Eep. 438; Dyer v. Pliiit, 21

S. E. 929. DL 80, 74 Am. Dec. 73; Stout v.

M William v. Lobban, 206 Mo. Slattexy, 12 Dl. 162; Rowley v.

399, 104 8. W. 58. Berrian, 12 Dl. 198; Hinckley v.

» Duckworth v. WatsonviUe O 'Parrel, 4 Blackf. (Ind.) 185;

Water & Light Co., 150 Cal. 520, Tunig v. Withrow, 10 Iowa 305, 77

89 Pac. 338. Am. Dec. 117; Welton v. Atkinson,

«a Connolly v. Goodwin, 5 Oal. 65 Neb. 674, 76 N. W. 473, 70 Am.

220; Hinckley v. CFarrel, 4 St. Bep. 416; Beardsley v. Knight,

Blackf. (Ind.) 185. 4 Vt. 471.

S4See If 37-90, post. 17 Town of Knox v. Golding, 46

as Weeping Water v. Beod, 21 Ind. App. 634, 91 N. B. 857, 92 N.

Neb. 261, 31 N. W. 797. B. 986.

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tl 26

seal operates to render the certificate evidence of the acts re-
cited, in a foreign country,** and indicates the notary's official
character,** providing he states in his certificate that he has
authority to act.** An official seal imparts verity and is uni^
versally recognized as evidence of authenticity when accom-
panied by the notary's statement in his certificate that he has

The impression of the seal on the paper in such manner as
to be identified is sufficient.** The United States statutes pro-
vide that it shall be lawful to affix the proper seal by making
an impression therewith directly on the paper to which such
seal is necessary, which shall be as valid as if made on wax or
other adhesive substance.**

The use of another notary's similar seal instead of the no-
tary's own does not invalidate the instrument acknowledged,
but is a breach of duty.**

On removal from office, the notary's seal must usually be
deposited with some officer as designated by statute.**

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