the officer as having been duly sworn to, it is valid.1 But where by the terms of a statute a signature is required, the affidavit must be subscribed by the affiant, or it is a nullity. Thus, a statute requiring a creditor or claimant to take and subscribe an oath to his claim or charges, is not complied with by his subscription to the written memorandum of the claim or charge, followed by a certificate or jurat stating that the memorandum was subscribed and sworn to in open Court, but which certificate is not subscribed by the claimant or creditor, but only by an officer administering the oath.2

In Hathaway v. Scott,3 in chancery, it was held that where the verification of a bill or petition in the form of an affidavit had not the name of the deponent subscribed to the foot of the affidavit, it was defective. But this decision was based on former rules in chancery, which required a deponent to subscribe his name or mark to the affidavit before it was certified by the master.

§ 54. Oath and jurat.-An affidavit must appear upon its face to have been taken before the proper officer and in compliance with all legal requisitions.1

So, a paper drawn in the form of an affidavit, and filed as one, but not signed by any officer authorized to administer the oath, cannot be treated as an affidavit.5

A certificate that deponent was " duly sworn" implies, until the contrary is shown, that he was sworn in such a manner as to render the oath binding upon the conscience. In Ohio, a statute required the officer before whom an affidavit is taken, "to certify that it was sworn to or affirmed before him, and signed in his presence"; but in a case it appeared that the certificate was "subscribed and sworn to before me this 12th day of February,

1 Millins v. Shaffer, 3 Denio, 60; Shelton v. Berry, 19 Tex. 154; Watts v. Womack, 44 Ala. 605; Turpin v. Eagle Creek Co. 48 Ind. 45; Brooks v. Snead, 50 Miss. 416; Ede v. Johnson, 15 Cal. 53; Kenyon v. Virgil, 3 Johns. 540.

2 Nave v. Ritter, 41 Ind. 301.

8 11 Paige, 173.

4 State v. Greens, 15 N. J. L. 88; Ladow v. Groom, 1 Denio, 429; Davis v. Rich, 2 How. Pr. 86.

5 State Bank v. Hinckliffe, 4 Ark. 444; Cantwell v. State, 27 Ind. 505; McDermaid v. Russell, 41 Ill. 490.

6 Fryatt v. Lindo, 3 Ewd. 239.

NOTARIES-5.

A. D. 1859"; and it was objected that it did not comply with the statute in stating that it was in the officer's presence, but it was held that it was sufficient, as the expression used implied the act was done in the presence of the officer.1 But where the jurat of an affidavit, taken before a justice of the peace, was "sworn and subscribed this," etc., omitting the words "before me," it was decided that the omission of such words rendered the affidavit a nullity.2

Where an officer certifies that more persons than one took an oath, it is not necessary that he should certify that they "severally" swore, the use of that word not affecting the sense.3 In Kleber v. Block, the following affidavit was held sufficient: "STATE OF INDIANA, Allen County, ss.

66

Personally came before the undersigned, a notary public of said county, Christopher Kleber, who upon his oath saith he is justly indebted to the within Adam Block, in the sum specified in the within power of attorney, and that he does not confess judgment thereon for the purpose of defrauding his creditors. "CHRISTOPHER KLEBER.

"Witness my hand and seal, February 19th, 1859. "[SEAL]

GEO. K. HENTMAN, Notary Public.

It was contended that the foregoing affidavit was bad for want of a jurat. The Court, however, held that the signature and seal of the notary apply to the jurat, to the certifying part of the writing signed by Block, and was therefore sufficient.

§ 55. Officer qualified to take.-When the statute does not designate the particular officer by whom a required oath may be administered and certified, it may be taken before any officer having general authority to administer and certify oaths.5 Whether the attorney of a party, who is also a notary public, can take the affidavit to a pleading in the cause is, as a general rule, denied; but if he only be counsel in the cause, and not

6

1 Sargent v. Townsend, 2 Disney, 472.

2 Smart v. Howe, Mich. 590.

3 Randall v. Baker, 20 N. H. 335.

+17 Ind. 294.

5 Wood v. Jefferson Co. Bank, 9 Cowen, 204.

• Taylor v. Hatch, 12 Johns. 340; Den v.

Geiger, 4 Halst. 225.

the attorney of record, he is not disqualified.1 It is held, however, in California, in Kuhland v. Sedgwick,2 that the attorney of the plaintiff, being a notary public, may take the affidavit verifying the complaint; and in Minnesota, in Young v. Young,3 it was held that the attorney of record, being a notary public, could take an affidavit of a service of summons.

§ 56. As to the use of a seal.-Whether a seal is required or not by the notary will depend upon the statutory requirements of his State; but, as a general rule, in all our States, a seal is required. Thus, in Iowa, in Tunis v. Withrow, a seal was held indispensable, the Court saying: "We consider that the official acts of a notary public should be authenticated by seal and signature, and that an affidavit is not proved to have been made unless the jurat is authenticated by both such seal and signature." In Stout v. Slattery, it was held, that if an oath be administered by a notary public, his signature to the jurat, without his seal of office, will be sufficient within the county of his residence; but if it be used out of the county, his seal of office, or some other evidence of his official character, will be indispensable.

1 Willard v. Judd, 15 Johns. 531; People v. Spalding, 2 Paige, 326.

217 Cal. 123.

3 18 Minn. 90.

4 10 Iowa, 305. To the same point, Chase v. Street, Id. 593.

5 12 Ill. 162.

§ 57. Notaries may generally take depositions;1 and it will therefore be useful to examine some of the decisions of the Courts, touching their duties in this respect. It is not intended to treat in general the subject of depositions, which is now a large topic in the law, but merely to refer to those decisions regarding the execution and return of a commission to take the deposition of a witness. A great many decisions on this point are given on some particular form required by a statute, which may not be general; but, as far as possible, there will be examined, in the present chapter, cases that have a general application, whatever be the special requirements of the statute. Whenever a decision is based on any special requirement, not of general use, the fact will be noted.

In the forms, it will be found there are two particulars requiring careful attention: that is, the proper writing of the сарtion, and the certificate at the end of the deposition, where the

1 As to what States permit depositions to be taken by notaries, see Sec. 20.

officer states in substance the steps taken; and the mode of execution, in taking the witness' deposition.

§ 58. As to the caption.-The caption should state the title of the cause, the Court, the names of the parties, and at whose instance the deposition was taken.1 In New Hampshire, it is held that the caption of a deposition should set forth in what Court the action is pending, a sufficient description of the house or office where the deposition is taken, that the statutory oath was administered, and whether, if the defendant was not present, he objected or not.2 But this is more than is required generally in other States. However, the title of the cause should appear in the caption; a mere recital that the deposition is taken "in compliance with the annexed commission" is not sufficient.3 When the deposition does not thus show any particulars to connect it with the cause in which it is offered, it should be refused admission in evidence.4

Some decisions are strict in requiring the names of the parties to the suit to appear either in the caption or certificate. So it is held, in Waskern v. Diamond,5 that great strictness is required in depositions taken under the Act of Congress of 1789, and if the names of all the parties to the suit do not appear in the caption, or some part of the deposition, the omission is fatal. But a deposition will be admissible in evidence, although the name of the case did not appear in the caption of the answer, it appearing at the head of the interrogatories and in the body of the commission, and the whole being attached together."

§ 59. Mistakes in names of parties in the caption, when not sufficient to raise any doubt as to their identity, will not be fatal; as when the Christian name of one of the party defendants was written Edward instead of Edwin, the deposition was received in evidence. So a mistake in the initial let

1 Peyton v. Veith, 2 Cranch C. C. 123; Knight v. Nichols, 34 Me. 208; Haskins v. Smith, 17 Vt. 263; Whitney v. Sears, 16 Id. 587.

2 Rand v. Dodge, 17 N. H. 343.

3 Slaughter v. Rivenbank, 35 Tex. 68.

Plimpton v. Somerset, 42 Vt. 35.

51 Hemp. 701.

Johnson v. Clarke, 22 Ga. 541; Henderson v. Cargill, 31 Miss. 367. 7 Mann v. Birchard, 40 Vt. 326.