THE LAW OF NOTARIES PUBLIC

DEFINITIONS AND HISTORY

1. A notary public, or notary, is an officer duly commissioned and holding a seal of office, who is empowered by law to note protests and certify the same, administer oaths, take depositions, and acknowledgment of deeds and other instruments, and to authenticate the same by his official certificate, signature, and seal.' In the earlier history of writing, the vocation of notary was to make notes and memoranda of the acts of others who wished to preserve evidence of them, and to reduce to writing deeds and contracts.'

A notarial act is the act of authenticating or certifying some document or circumstance by a written instrument under the signature and official seal of a notary, or of authenticating or certifying as a notary some fact or circumstance by a written instrument, under his signature only."

Notaries public are officials of great antiquity, being older than the law merchant. They originated under the early Roman jurisprudence and were known as tabelliones forenses, or persona publica (public persons). The term tabellio is derived from the Latin tabula, seu tabella, which, in this sense, signified those tables or plates covered with wax, used formerly instead of paper. Tabelliones differed from notaries in many respects. They had judicial jurisdiction in some cases, and from their judgments there were no appeals. Notaries were then the clerks or aiders of the tabelliones; they received the agreements of the parties, which they reduced

1 Stand. Dict.; 6 S. & R. (Pa.) 486 (1821). 2 Cent. Dict.

3 Ibid.

4 Bouv. Law Dict., citing 8 Toull., n. 53.

For notice of copyright, see page immediately following the title page

to short notes; and these contracts were not binding until they were written in full, which was done by the tabelliones.*

In England, the office of notary existed before the conquest, and is frequently referred to in history. The general nature of the office has come down from that time, changed only as the character of the age has made it requisite." Notaries also exist in all the countries of Europe, and as early as A. D. 803 were appointed by the Frankish kings. and popes.'

APPOINTMENT AND ELIGIBILITY

2. The manner of the appointment of notaries varies in different jurisdictions. In England, they are appointed by the court of faculties of the Archbishop of Canterbury, the office having arisen under the civil and ecclesiastical law. In France, they are appointed by the government, although the power of appointment was formerly claimed by the pope. In the United States, they are appointed in the several states by the governor, either alone, or, in some states, by and with the advice of the senate, and, in other states, by and with the advice of the governor's council. In the District of Columbia, they are appointed by the president of the United States. In some states, certain public officers are constituted notaries ex officio. These are clerks of the courts, justices of the peace, mayors, and recorders.

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3. General Requirements. In the United States, it is required of the applicant for a notary's commission that he be a citizen of the state in which he intends to serve, and a person of good moral character. In some states, a certain length of residence is required before a person can qualify as a notary. In some jurisdictions, there is no requirement that, to be eligible, a person must be of the age of twentyone years, although the appointing official will hesitate to commission any one not a qualified elector.

5 Jac. Law Dict.

Am. & Eng. Encyc. Law (1st Ed.), Vol.

16, p. 753, citing Proff. Not., Sec. 6.

7 Bouv. Law Dict.

8 Proff. Not., Sec. 13.

Women, married or single, are, as a rule, eligible, but the constitutions of some states prohibit the election or appointment, to any civil office, of any person except a qualified elector, and it is so held by judicial authority. In some states, judicial decisions hold, and, in others, it is declared by statute, that women are eligible to the office, the performance of the duties being regarded as ministerial and not judicial. In Alabama, Missouri, and Pennsylvania, there are such statutory enactments. In Missouri, females must be eighteen, and males twenty-one, years of age." In Pennsylvania, the qualifications of women for the office are that they must be twenty-one years of age and citizens of the commonwealth; it is further provided that whenever any female notary shall marry she shall, before the performance of any notarial act, return her commission to the governor, stating the fact of such marriage and giving her married name, and the governor shall thereupon issue to her a new commission, conforming to the change of name and covering the term for which she was commissioned, and without the payment of any additional fee, but requiring the giving of a new bond." In Texas, women are appointed to act as notaries without the authority of statute.

4. The Notary's Bond. - In all states, except Connecticut, New Hampshire, New Jersey, New York, North Carolina, South Carolina, Vermont, and West Virginia, notaries are required to execute an official bond varying in amount from five hundred to five thousand dollars, conditioned for the faithful performance of their duties, which bond must be approved by proper authority and may be sued upon by any person injured by the failure, neglect, or inability of the notary to discharge his duties, in like manner as suits upon other official bonds. Ex officio notaries, except in the states above mentioned, are required to execute notarial bonds in addition to their official bonds." A notary must give bond before his commission will be

9 Const. Colo.; 150 Mass. 586 (1890). 101 Hugh. (U. S.) 37 (1876); Chit. Prer.,

Sec. 84.

11 Not. Man., Sec. 4.

12 Pa. P. L., 1893, p. 16, Secs. 1, 2. 13 Not. Man., Sec. 3.

issued. But, if he be duly appointed, a failure to file such a bond as is required by law will not make his acts as notary invalid. As in case of other public officers, he is still a notary de facto, that is, one who performs the duties of the office with apparent right and under claim and color of an appointment, but without being actually qualified to do so, and his acts are valid as to third parties, and cannot be attacked collaterally, that is, in any proceeding except one instituted for the express purpose of having them declared void." The same rule applies if for any other reason a notary, though duly appointed, have no rightful title to his office, as, for example, if he be not a citizen of the state, or have not resided therein the required length of time.

5. Oath of Office. - In addition to giving a bond, a notary is required to qualify by taking a prescribed oath of office. Usually a duplicate of the oath is required to be filed with the secretary of the state.

6. Term of Office. - In the United States, a notary's term of office is fixed by the statutes of the particular states, the length of time for which they are appointed varying. In some states, the term expires at the end of two years; in other states, the duration of the commission is four years." In a few states, the term is during life or good behavior. In some states, it expires absolutely on the completion of the

14 14 Iowa 464 (1863).

15 Pa. P. L., 1901, p. 70, Sec. 2; 58 Am. Rep. 438 (1885). In Alabama, there are two classes of notaries, each of which is appointed by the governor. The duties of the first class include the administration of oaths, taking acknowledgments of certain instruments of writing, the protesting of bills of exchange, and other like powers, such as are expressly prescribed by statute, or authorized by general commercial usage. These are notaries public in the common acceptation. The second class, in addition to these powers, possess all the jurisdiction of justices of the peace, civil and criminal, and are therefore judicial officers. The governor is authorized by the constitution to appoint one notary of this class for each election precinct in the several counties of the state, and one for each ward in cities of over five thousand inhabitants, who are ex officio justices of the peace within their respective wards or precincts. While the statute expressly declares that the first class shall "hold office for three years from the date of their commissions, and until their successors are qualified," it is equally clear in the decla ration that the second class shall hold their office three years from the date of their commissions, thus by obvious implication excluding a construction which would permit them to hold for a single day after the expiration of their com missions. Code, Sec. 1,325; Const. (1875), Art. IV, Sec. 26; 76 Ala. 78 (1884).

term, while in others, it endures until a successor is appointed and qualified.

The power of a notary to act as such after the expiration of his term of office, and the validity of acts done by him, depend on the peculiar laws of each state. As a general rule, the office determines absolutely when the term expires, and acts thereafter done in good faith are those of an officer de facto and cannot be collaterally assailed, although a new appointment cannot be presumed from the mere fact of his acting as notary." But his acts will be held valid, if he have continued to exercise the duties of his office, by public acquiescence, for such length of time and by such frequency of repetition as to afford reasonable presumption of his holding over under a reappointment." However, it is held that when all public officers hold over until their successors are elected or appointed, the office of a notary does not cease on the expiration of the term for which he was appointed, but continues until a successor is appointed, or he is removed." The statutes in some states provide that the acts of a notary after his commission expires shall be valid;" but in Pennsylvania, by a recent enactment, the date of the expiration of the commission must be attested to all notarial acts," thus indicating an intention to maintain the general rule that the office determines absolutely when the term expires.

20

A notary public is not required to deliver his records or papers to any one as his successor," unless it be so provided by statute, though it is frequently done as a matter of usage. In point of fact, a notary has no successor, in the strict sense of that term, unless there be a statutory provision to that effect; and one appointed to succeed another usually does not fill his unexpired term, but holds for the usual term from the date of his appointment."

7. The Notarial Seal. - At common law, a notary was required to have an official seal. In most jurisdictions, by

16 37 Ohio St. 73 (1881); 2 Kent's Comm.,

Sec. 295; 22 Wall. (U. S.) 99 (1875).

1776 Ala. 78 (1884).

1874 Ga. 416 (1885).

1937 Ohio St. 73 (1881).

20 Pa. P. L., 1901, p. 91, Sec. 5.

21 14 Iowa 464 (1863).

225 La. Ann. 282, 534 (1850).