action. The law does not allow one to pawn off his goods as the goods of another. Our supreme court in a recent case says: "It is well settled that a close imitation of the plaintiff's labels and style of package, which is obviously calculated to deceive the public into the belief that the imitation is in fact the original, is a fraud, and where it appears that damage has or must necessarily result from such imitation the plaintiff will be entitled to relief upon the ground of fraud, independently of the question of trade-marks." If the resemblance of the mark, name or phrase adopted so closely resembles that of another as to deceive an ordinary buyer, and the party knew of the former mark, name or phrase at the time he intentionally pawned off his gooods as the goods of that other person, to the latter's damage, the law will give relief, either by a suit for damages or equity will enjoin the wrongful use of such mark, name or phrase. The wrongful use of a trade-mark or trade-name may be enjoined without proof that anyone had actually been deceived.

CHAPTER XXXIV.

NOTARIES PUBLIC.

Defined. A notary public is an officer who attests instruments in order to give them authenticity, and by statute he is also allowed to administer oaths, take depositions and acknowledgments of deeds and protest commercial paper. The office is of great antiquity, being known to the early common law of England and to Roman jurisprudence. At common law, the principal function of a notary public was to protest foreign bills of exchange under the law merchant, but it is not necessary to go into what powers such officers had under the common law, as our statutes define their powers and duties, and make them state officers. They cannot, therefore, use a railroad pass or frank as prohibited by the anti-pass law of 1899. It must be remembered that many other officers ex officio possess the powers generally given to a notary public, e. g., judges, court commissioners, justices of the peace, etc.

The office. Our statutes provide that the governor shall appoint one or more notaries public in each county of the state. They must be residents and qualified electors, or females of the age of twenty-one years and upwards, of the county for which they are appointed and hold their office for a term of four years and have power to act throughout the state. A notary public for one county can, therefore, attest or acknowledge an instrument in another county in this state, and it is not necessary that he affix to his signature the name of the county for which he was appointed.

How to become a notary public.-The secretary of state will, on request, furnish the necessary blanks. Our statutes provide:

"Every notary public, before he enters upon the duties of his office, shall take and subscribe the constitutional oath

and give a bond to the governor in the sum of five hundred dollars, with surety to be approved by the county judge or clerk of the circuit court of his county, conditioned for the faithful discharge of the duties of his office. He shall also provide an engraved official seal, which shall make a distinct and legible impression on paper, giving his name, office and county, and shall deposit an impression of the same, together with his said oath and bond and a statement of his postoffice address, in the office of the secretary of state and pay into the treasury the sum of two dollars; and thereupon his commission shall issue, and the secretary of state shall deliver to such notary a certificate of his appointment, stating the date when his commission will expire, which, together with his autograph and an impression of his official seal, shall be filed in the office of the clerk of the circuit court of the county were he resides. Not less than thirty and nor more than sixty days before the expiration of his commission, the secretary of state shall notify by mail every notary public of the time when his commission will expire."

When the steps mentioned in the above section have been taken, the clerk of the circuit court may certify to the official qualifications of such notary and the genuineness of his signature and seal.

Powers.-Notaries public have power to demand acceptance of foreign and inland bills of exchange and payment thereof, and payment of promissory notes, and may protest the same for non-acceptance or non-payment, may administer oaths, take depositions and acknowledgments of deeds, and perform such other duties as by the law of nations, or according to commercial usage, may be exercised and performed by notaries public. As to their duties in protesting commercial paper, see "protest" under Negotiable Instruments.

Miscellaneous statutory provisions.-The power of a notary to act ceases upon removal from the county for which he was appointed. The fees which may be charged are 50 cents for protests and 25 cents per folio for affidavits in general. All certificates of deeds and other conveyances, or any written instrument required or authorized by law to be acknowledged before any notary public, within the state of Wisconsin, must be attested by a clear impression of the official seal of said officer, and in addition thereto shall be written or stamped the day, month and year, when the commis

sion of said notary public will expire, and when attested and completed in this manner, the certificate is presumptive evidence in all cases and in all courts of this state of the facts therein stated, in cases where a notary public is authorized to certify such facts. As to matters which need not be stated in a certificate or to which the law does not authorize a notary to certify, it is not presumptive evidence.

Duty and liability.-The duties of a notary have been in the main mentioned above. A notary should not act when he is directly interested in the transaction. Thus, a notary public cannot acknowledge a mortgage wherein he is mortgagee, or a deed wherein he is grantee, and there are cases which have held that a stockholder in a corporation cannot act as notary in a transaction wherein the corporation is a party. While it is lawful for an attorney who is also a notary public to take the affidavit of his client in a matter pertaining to the case, our supreme court has discountenanced the practice as an obvious impropriety. While the relationship of a notary to the parties does not disqualify him from taking acknowledgments, if the relationship is near, a deposition should not be taken before him. Our statutes provide that any notary public who is guilty of any misconduct or neglect of duty in office shall be liable to the party injured for all the damages thereby sustained. To make the surety liable on his bond, the loss must have occurred through the notary's official misconduct or negligence and such must have been the proximate cause of the damage, but for loss occasioned by his official misconduct or negligence he is liable even to parties who were not parties to the instrument and by whom he was not employed. Thus, where a notary certified that a person to him known to be that person appeared before him and executed and acknowledged an instrument, when such was not the case the notary and his surety were liable for the resulting damage. The notary also becomes liable for failure to make protest of commercial paper when requested, or for failure to give notice thereof as provided by statute. If a person not permitted by statute to be a notary, e. g., an alien, should duly act as such, after having otherwise substantially complied with the requirements of the statute, he would be a notary public de facto and his acts would be valid.

Seal.-The statute makes the notary public a state officer

and his acts are recognized and his signature and seal judicially noticed throughout the state and his certificate is presumptive evidence of the matters therein authorized to be stated. The general rule is that certificates required for use in another state or country must comply with the requirements of the law of that state or country. Our statutes provide that a conveyance in a foreign state shall be valid if executed and acknowledged according to the laws of this state, or if executed and acknowledged so as to comply with the laws of the state where executed. In the case of protest of foreign commercial paper, the statute makes the notary's certificate of protest, or his record thereof, or a certified copy thereof, presumptive evidence of presentment, demand, refusal and protest for acceptance or non-payment, the contents of the notice given and the time and manner of service thereof. The notary must keep a record of the protest and notices sent out to those primarily and secondarily liable on the paper. (See "Protest" under Negotiable Instruments.) The acts of notaries are judicially noticed at common law in so far as they relate to duties discharged under the law merchant. Their certificate of such acts are prima facie evidence and are sufficiently authenticated by their signature and seal. Thus, the certificate of a foreign notary that he presented a bill of exchange for acceptance and payment and that the same was refused, is prima facie evidence of these facts everywhere and such certificate will be received in evidence by the courts.