Frederick Mortensen Hinch Edward Mills John.

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§ 34. — ^Penal Liabilities. — Statutory provisions exist in a
large number of states imposing penalties for various viola-
tions of duty by notaries. As instances are the making of
false certificates of acknowledgment, acting without being
qualified, acting after their term of office has expired, withhold-
ing records, charging excessive fees, failing to add the date
of expiration of their commissions, and in general for neglect,
misconduct, malfeasance or misfeasance.^^ In addition, nota-
ries may be involved in more serious offenses, such as forgery
and other crimes. And it may be noted that the offense of
appending false certificates to affidavits, which resulted in the
conviction of one notary, was also held an offense involving
moral turpitude, for which the same notary might be disbarred
as an attorney at law." In a criminal prosecution for wilfully
certifying falsely that a mortgage was duly acknowledged, the
state has been held required to prove not only the falsity of
the acknowledgment, but that the officer knew that the certifi-
cate was false. Such knowledge was provable by evidence of
similar acts."

§ 35. Taxation of Notaries. — In some states an annual li-
cense fee is exacted from notaries.** but usually they are not
subject to taxation. Authority to tax 'Hrades, occupations and
professions'' has been held not to authorize a tax on notaries

§ 36. Compensation and Fees of Notaries. — ^Notaries are en-
titled to the fees fixed by statute in every case, and should not
hesitate to ask for the same. Similar services performed by
other officers always result in the imposition of a reasonable

9 People V. Nederlander, 177 103 Pac. 805.

Mich. 434, 143 N. W. 753, Ann. 18 People v. Marrin, 205* N. T.

Cas. 1915C 1026. 275, 98 N. B. 474, 43 L. B. A. (N.

10 McAllister v. Clement, 75 Cal. S.) 754.

182, le Pac. 775. 14 See || 37-90, post

11 See SI 37-90, post. See also iBCooley on Taxation, supported
§ 24, ante. by City of New Orleans v. Bien-

IS In re Hopkins, 54 Wash. 5(10, venu, 23 La. Ann. 710.

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amount, which is expected to be paid, and a notary who hesi-
tates to charge lowers the dignity of his office. Elsewhere in
this work, the importance of the notary's duties, and the neces-
sity of care in the performance of his acts, has been referred
to in detail, and as a result such care and prudence should be
rewarded with the proper statutory fees. But, on the other
hand, notaries should never be so anxious for their fees as to
overlook this care and prudence, or to ignore the law. Negli-
gence may result in expensive damage suits, or extensive lia-
bilities. The small fee received may cost thousands of dol-
lars, if negligence is involved, or misconduct.

Where the statutes expressly require a notary to keep an
official register of his acts, a notary who fails to perform such
duty cannot recover compensation for his acts.**

Usually cities have no authority to employ notaries, although
their services may be convenient to the transaction of certain
business,*'' and city officials cannot recover extra compensa-
tion from the city for notarial services performed for other
parties.** Similarly, persons holding subordinate positions in
city departments, for which they receive a stipulated salary,
cannot recover compensation from the city for notarial services
rendered as an incident of their duties, it being understood
that such services were to be rendered as part of the clerical
duties." But if the services are not part of the regular duties,
and are extra, and there is no waiver of the right to collect,
such officials may recover for their work, rendered for the
benefit of the city.** If a clerk performs duties as a notary,
even though it is during his working hours, he is entitled to the
statutory fees. The city is not entitled to such compensation,
and an ordinance enacted by a city requiring the fees to be
paid into the city treasury has been held void and in conflict
with a statute fixing the fees of notaries.**

Notaries are frequently employed in banks, and in one case

16 Black V. City of Pittsburgh, Supp. 176; Benjamin v. City of

266 Pa. 97, 109 Atl. 616. New York, 77 N. Y. App. Div. 62,

n Black V. City of Pittsburgh, 78 N. Y. Supp. 1067.

266 Pa. 97, 109 Atl. 616. W Morgan v. City of New York,

W Sheahan v. City of Chicago, 190 N. Y. 237, 82 N. E. 1089.

127 m. App. 626. «1 Wood v. City of Kansas City,

1» McCabe v. City of New York, 162 Mo. 303, 62 S. W. 433.
77 N. Y. App. Div. 637, 79 N. Y.

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where such employment existed, the notary agreed to accept in
full payment for his services, one-half of the legal fees charge-
able therefor. Subsequently, the notary sued for the fees re-
tained by the bank, and it was held by the court that the
contract entered into was contrary to public policy and void
and that the notary was intended to act independently of any
influence of the bank or agent placing paper in his hands for
official action.^ An almost identical case arose in another
state, where the notary had agreed as part of his contract of
employment that protest fees should be retained by the bank,
but, in this latter case, the notary had accepted a salary for
five years without claiming his fees, and had repeatedly signed
a pay roll whereby he released all claims. The court held that
he had assigned his fees and could not recover. The contention
was also made that the assignment was contrary to public
policy, but the court held that, if this was so, the parties were
in pari delicto, that is, that they were equally in fault, and, as a
consequence, the employee could not recover.** The first case
states the general rule, which is that the fees belong to the
notary, and that agreements to assign them in this manner are

The amount of a notary's fees is fixed by statute in prac-
tically all states, being a specified sum for each act.** When
a statute exists fixing the fees of notaries, the charge of a round
sum for taking an inventory in a succession is illegal.** Also
when the statutes governing the taking of depositions provide
that the notary may write out the testimony, employ a stenog-
rapher, or permit his employer to hire a stenographer, the no-
tary may charge the full statutory rates for transcribing and
taking in either of the first two cases, but in the third case he
can only charge his fee for the certificate and the administra-
tion of the oath.**

it Ohio Nat. Bank of Washing- MSee fj 37-90, post,

ton V. Hopkins, 8 App. Cas. (D. C.) See Laclede Land A Improve-

146, supported by Palmer v. ment Co. v. Morten, 183 Mo. App.

Vaughan, 3 Swanst. 173; Parsons 637, 167 S. W. 658, construing stat-

V. Thompson, 1 H. Bl. 322; Meguire utes and holding the fee for a cer-

V. Corwine, 101 U. S. 108, 25 L. ed. tificate, attested by seal, to be 50c.

899. W Succession of Morgan, 124 La.

88 Mussing V. Com Exchange 755, 50 So. 703.

Nat. Bank of Chicago, 173 HI. App. M Coleman v. Northern Pac. B.

53. Co., 41 Mont. 123, 108 Pac. 582.

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far. Alabamft—ELIGIBIUTY— citizenship. WOMEN— are eligible.
APPOINTMENT— by the governor. COMMISSION— fee— none seems
to be required. BOND — $1,000, with sureties approved by the county
probate judge. Bond to be filed and recorded with such judge. OATH
— ^to be taken. TEBM — ^f our years. SEAL of office to be procured, with
name of notary, office, state and county of appointment. POWEBS
AND DUTIES — ^to administer oaths, take affidavits, acknowledgments,
or proofs, of instruments, demand acceptance of payment and protest
commercial paper, and give notice of protest. Notaries ex offlcio justices
of the peace, appointed in election districts of counties, and wards of
cities, have powers of justice of the peace in addition to those of notaries.
May issue attachments. BECOBD OB BEGISTEB— to be kept of all
official acts, and certificates given of same when required and paid for.
On removal from office, all records and papers to be deposited with
county probate judge within thirty days thereafter under penalty. Dock-
ets and files of notary ex officio justice to be delivered to successor in
offiee. BEMOVAL — by death, expiration or otherwise. Bemoval from
county vacates office. LIABILITIES AND PENALTIES— imposed as
herein stated with respect to register, and also where notary ex officio
justice fails to keep record of criminal cases, or report same to grand
jury, or fails to report and pay over fines collected. GEBTIFICATE—
under notary's hand and seal is evidence of facts stated. JUSTICES —
act when there are no notaries but they must so state. FEE BILL —
acknowledgments, 50c; presentation for acceptance or payment, 50c;
protesting, $1.00; notice of protest, each, 50c; other protests, $2.00;
oaths, 50c; copies from register, per 100 words, 20c; certificate and seal,
26c; other certificates, 50c.

iS8. Alaja»— ELIGIBILITY-rresident of the district APPOINT-
MENT— by the governor for the district COMMISSION— fee— $10.
TEBM— four years. COMMISSIONEBS— appointed by the court to act
as notaries, and record kept of all acts. BOND — $1,000. Approved by
clerk of his district court. Same with oath and signature to be filed
with the secretary of his district OATH— to be taken. DUTIES— to
demand acceptance and payment of foreign, domestic and inland bUls
of exchange, or promissory notes, protest same for nonacceptance or
nonpayment, to exercise the other duties of such office accorded by the
commercial laws of nations, etc. To take acknowledgment or proofs of
deeds and other instruments in writing, attach his certificate to same.
Take depositions, affidavits, administer oaths and affirmations, make and
certify copies of records of his office. LIABILITIES — notary and sur-
eties liable to parties injured for all damages sustained, for official mis-
eonduet or neglect SEAL — ^to provide and keep an official seal with the
words engraved thereon, "Notary Public,'' and his name and name of
district for which he is appointed. BECOBD— to be kept of all his acts.
BEMOVAL — ^by death or expiration of office^ all his records to be filed

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with the clerk of the district court. Failure to do so subjects him to
damages to party injured.

iS9. Arizona— ELIGIBILITY— resident of the county. WOMEN—
over twenty-one years of age are eligible. APPOINTMENT — by the
governor. COMMISSION — ^wiU issue from the secretary of state to the
district court clerk, who wOl notify the applicant. Pee, $2.50. TEBM —
four years. BOND — $1,000, with sureties approved by the chairman of
the board of supervisors. File with county recorder. OATH — to be taken
before an officer authorized to administer oaths within twenty days after
appointment, same to be recorded with district clerk. DUTIES — ^to take
acknowledgments or proofs of instruments in writing, affidavits, deposi-
tions, oaths and affirmations, demand acceptances or payment, protest
commercial paper. SEAL — to be procured containing ''Notary Public,"
his name and county. Authenticate all acts with same. State expiration
of office. Acts received as evidence throughout the state. BEOOBD — ^to
be kept of all official acts, of parties, date and character of instrument
acknowledged or proved, date of acknowledgment, and description of
property affected, if any. Certified copies of record to be given when
requested. Protest and certificate prima facie evidence of facts therein.
BEMOVAL— by death or otherwise, deposit all records and papers with
county recorder within three months, under penalty of from $50 to $500.
Destruction or defacing records subjects to heavy fine. JXJBISDICTION
— in the county of appointment. Oaths and affidavits required to be
taken in other states, may be taken before any judge or commissioner
of a court of record, master in chancery or notary public authorized, under
their official seals. FEES — protesting a bill or note for nonacceptance
or nonpayment, registering and seal, $2.00; each notice of protest, 50c;
protest in other cases for each 100 words, 20c; certificate and seal to
such protest, 75c; taking acknowledgments, etc, 75c; taking acknowledg-
ments of married women, 75c; administering oath or affirmation, 75c;
certificates under seal not provided for, 75c; copies of records, certificate
and seal, less than 200 words, 75c; if more than 200 words, per additional
100, 20c; all other notarial acts, 50c; deposition of witness per 100 words,
20c; swearing witness to deposition and other business therewith, 75c;
acknowledgment to bill of sale of horses, mules, asses, or neat eattley
with certificate and seal, 25e.

1 40. Arknnaas ELIGIBILITY — citizen of the county for which ap-
pointed. WOMEN—are eligible. APPOINTMENT— by the governor.
TEBM— four years. COMMISSION— fee— $5.00. BOND— $1,000, with
securities approved by clerk of circuit court. OATH — ^required. POW-
EBS AND DUTIES — to take acknowledgments or proofs of written in-
struments, depositions, in and out of the state, affidavits, administer
oaths and affirmations, make declarations and protests. Powers are co-
extensive with state for purpose of swearing witnesses, taking affidavits
and depositions and acknowledgments. SEAL — he must provide a seal
of his office, to represent by its impression the emblems and devices
presented by the great seal of statOy surrounded by the words "Notary

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Pablie, Connty of , Ark.'' All official acts to be authentieated

therewith. Must state when his commission expires, on all acknowledg-
ments or jurats. Penalty for omission is 15.00. BECOBD — shall keep a
record of all his official acts in a book for that purpose and give a certi-
fied copj of any record to any person applying therefor on payment of
the fee. BEMOVAL — all papers and records to be delivered to the county
clerk. Acts received as evidence of the facts stated. FEES — ^f or noting
for protest, 50c; entering protest, 75c; registering protest, 40c; notice
to indorsers, etc., each, 50c; taking acknowledgment, 50c; each marine
protest, $2.00; protest to secure insurance, $2.00; copy of record and
papers in his office, each 100 words, 5c; each deposition, $2.00; mileage
to and from place to officer's office, per mile, 5c; all fees not to exceed
for the day, $5.00; if more than one day, for each day, $2.00; for
issuing subpoena, 50c; for issuing order of arrest, 50c.

141. Oalifomla— -EUGIBIIiITY-^nust be a citizen of the United
States and of this state, twenty-one years of age, resident of county for
sil months. WOMEN — ^having these qualifications can be appointed.
APPOINTMENT — ^by the governor. Number of appointments limited.
COMMISSION— fee— to state secretary, $5.00. OATH— to be taken.
TEBM — ^four years. BOND — $5,000, to be approved by the judge of the
county superior court. Bond and oath to be filed with county clerk in
twenty days, duplicates with clerk's certificate of these facts to be sent
to the secretary of state in thirty days by the notary. SEAIr— to pro-
vide and keep an official seal, having engraved thereon the arms of the
state, the words '^Notary Public," and the county for which commis-
sioned. All acts to be authenticated therewith. DUTIES — ^to take ac-
knowledgment or proofs of instruments in writing in his county. To take
depositions, affidavits, administer oaths and affirmations incident to the
office or to be used before any court, judge, officer, or board in this state.
When requested, to demand acceptance and payment of bills of ex-
change, or promissory notes, to protest same for nonacceptance or non-
pa3rment, to exercise such other powers and duties as by the law of
nations and commercial usages, or by the laws of any other state, govern-
ment, or country, may be performed by notaries. Protest of notary under
hand and seal is prima facie evidence of facts contained therein. GBIM-
INAL LIABIUTT — every public officer authorized by law to give any
certificate or other writing, who makes and delivers such certificate or
writing containing statements known to be false, is guilty of a misde-
meanor. BEMOVAL — ^by death, resignation or disqualification, all rec-
ords must be delivered to the county clerk within thirty days. BECOBD
— all their official acts, parties, to date, and character of every instru-
ment acknowledged or proved by them. To give certified copies of same
when so requested and upon receipt of their fees. LIABILITIES —
notary and his sureties liable for his misconduct or neglect to all parties
injured, for damages. FEES — ^protest, $2.00; notice of, $1.00; recording
same, $1.00; drawing affidavit, deposition or other paper not herein
mentioned, each folio, 30c; taking acknowledgments, etc., for the first
two signatures, $1.00 each; additional signatures, 50c each; administer-

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ing oath or affirmation, 50c; every eertifieate, ineluding writing and
seal, $1.00.

142. Colorado— ELIGIBIIiITT— citizenship. WOMEN— not eligible.
APPOINTMENT— by governor. COMMISSION— to be recorded with
the county clerk before entering upon the duties of the office. Becorder
or clerk and recorder of any county it authorized to issue certificates as
to date, expiration of commission and qualifications of notary. TEBM —
four years. BOND — $1,000, same to be approved by the county clerk.
OATH — ^to be taken before entering upon the duties of the office. Bond,
and oath indorsed thereon, to be recorded with the county register of
deeds. POWEBS AND OFFICIAL DUTIES — take proofs of acknowl-
edgment of all instruments of writing relating to commerce and naviga-
tion, acknowledge deeds and powers of attorney, administer oaths, make
declarations, protests, and all acts usually performed by notaries in other
states and territories. Act only in the county of appointment. SEAL
— to provide an official seal, consisting of an impression on paper or
wax, setting forth the notary's name and residence. He shall designate
in writing the date of expiration of his commission. All official acts
to be attested therewith. BECOBD — ^must keep record of all his official
acts, and, when required, give certified copies of same upon receiving
his usual fee. BEMOVAL — ^within thirty days all papers and records
to be deposited with county register of deeds. LIABILITIES — ^bond
may be sued on by any person injured on account of unfaithful perform-
ance of notary's duties, but suit must be instituted within three years
after accrual of cause of action. Failure to keep record is unlawful act
and person aggrieved thereby may recover damages in nature of penalty
on bond, not less than $100 for each offense, notary forfeits commission
and in addition is liable on bond for damages sustained. Notaries are
also subject to national guard service and are not exempt as certain
other officers. FEES — noting for protest, 50c; protesting and record,
75c; notices, each, 50c; certificate and seal, each, 50e; acknowledgments,
one, 50c; additional, each, 25c; depositions, per 100 words, 15e; swear*
ing, seal and certificate, 25c; other fees same as justices.

i4S. Oonnecticat— ELIGIBILITY— citizenship. WOMEN— are eli-
gible. APPLICATION — must be in handwriting of applicant, except
those of attomejrs or commissioner of superior court. APPOINTMENT
— ^by governor. COMMISSION — fee — $5.00 payable to executive secre-
tary. TEBM — ^five years from February 1st of year commission issues.
BOND — not required. OATH — ^to be filed with county superior court
clerk, together with commission. Clerk may certify to authority and
official acts of notary. Oath and commission of notaries in New Haven
county to be recorded at Waterbury. In New London county, record is
made by clerk of court of common pleas. SEAL — ^not required. BEC-
OBD — not required. BEMOVAL — ^by the governor. Secretary to give
notice of revocation of commission within five days to clerk of superior
court. JXJBISDICTION— any place in the state. LIABILITIES— no
statutory liabilities. FEES OF NOTABIES^-^Barino protest, $2.00; on-

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tering protest of bill or note, or noting without proteet, administering
an oath, taking acknowledgment nnder seal, 50c; noting a biU or note
for protest, recording protest, eaeh notice to indorsers, etc., 25c; travel,
per mile, 10c; oath to a pensioner, 25c; fee of witness, per day, 50e;
fee of witness for travel, per mile, 10c; depositions, in state, each, $3.00;
depositions, out of state, each, |5.00; acknowledgments, 25c; affidavits,
10c; oaths, ont of court, lOe; subpcsna, 25e.

144. Delaware— ELIGIBILITY— citizenship. Collector of state rev-
enue to be appointed notary for his business. Financial institutions to
have notaries for their business and to execute their papers. Justice of
the peace to be appointed. Number of additional notaries in various
counties limited. APPOINTMENT— by the governor. COMMISSION
— ^fee — $10, payable to secretary of state. TEBM — ^two years, except jus-
tice of the peace) or collector of state revenue. OATH — ^prescribed by
state constitution, to faithfully discharge duties of office, duly signed
and certified, to be filed with county recorder. DUTIES AND POWEBS
— ^to acknowledge deeds or other instruments, administer oaths, etc., to
take private examination of married women parties to a deed. May
give certificate of descent of Nanticoke Indians. SEAL — to have a seal
engraved with name of notary, title, date of appointment, term of office
and anything else desired. BEMOVAL— officer failing to provide re-
quired seal may be removed by governor for neglect. LIABILITIES — for
unfaithfulness in duties. FEES— protest of note, etc., 80c; notice of pro-
test, 20c; exemplification, 25c; protest of foreign bill, $1.00; notice, 37c;
exemplification, 75c; registering bill of exchange, etc, where no probate
fee, 20c; registering common sea protest, 75c; registering foreign sea
protest, $1.00; registering protest for detaining vessel, $4.00; exemplifi-
cation of three last protests, $1.00; registering obligation, letter of attor-
ney, bin of sale, or other writing, $1.00; acknowledgment of letter of
attorney or other instrument, $1.00; acknowledgment of deed, 50c; taking
and certifying affidavit, 25c; administering and certifying oath, 50c;
taking deposition, court to allow a reasonable fee; drawing affidavit or
deposition, 2c a line; other certificates, 35c.

i 46. District of Cohunbia^ELIGIBILITY— resident of the district.
APPOINTMENT— by the president. TEBM— five years. BOND— for
$2,000, with security approved by the supreme court or a justice thereof.
OATH — ^to be taken. He shall deposit an impression of his seal and
signature with the clerk of the supreme court of the district. DUTIES
— to take depositions, acknowledgments, affidavits and oaths, etc., to
demand acceptance and payment of bills of exchange, etc., and to pro-
test the same. They may perform such other acts for use and effect
beyond the jurisdiction of the district according to the law of any state,
territory or foreign government. SEAL— to provide a notarial seal, with
which he shall authenticate his official acts. BECOBD — to keep a fair
record of all his official acts, and, when required, to give a certified
copy of any record in his office to any person upon payment of the fees
therefor. BEMOVAL— at discretion, by death, resignation or removal

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from office, all records and official papers to be deposited with the clerk
of the supreme court of the district. LIABILITY — any notary taking
a higher fee than allowed shaU be fined 1100 and be removed from
office by the supreme court of the district. The original protest of a
notary public, under his hand and official seal, of any bill of exchange
or promissory note for nonacceptance or nonpayment, stating the pre-
sentment, service of notice, mode of notice, reputed residence of the
party, and the nearest postoffiee, same shall be prima facie evidence of
facts stated. The certificate of a notary public, under his hand and seal
of office, drawn from his record, stating the protest and the facts therein '

Online LibraryFrederick Mortensen Hinch Edward Mills JohnAmerican notary and commissioner of deeds manual: the general and statutory ... → online text (page 5 of 50)