The functions and duties of a notary in France are exceedingly important; notarial acts enter into almost every transaction in French society, and the office is sought as one of emolument and considerable dignity, often being transmitted from father to son. Notaries officiate to give a certain authenticity to acts of parties, thereby making these acts somewhat of a public nature. An authentic act is defined by the Civil Code 1 to be that which has been received by a public officer, having the right to draw up such instrument in the place where the act was made, and which is prepared with the required solemnities. The authentic act is full proof of the convention which it embodies between the contracting parties, their heirs or assigns, but in case of complaint of fraud the execution of the act may be suspended.2 Such authentic act must be received by two notaries; or by a notary assisted by two witnesses, being French citizens, able to write, and domiciled in the district where the act is made.3

A French writer thus expresses himself on the profession of a notary: "La profession de notaire est d'une étendue immense, puisqu'à proprement parler, il n'y a point d'affaire qui puisse être de son ressort, ni de personnes qui n'en éprouvent tous les jours la necessité. Mais si sa vaste étendue fait son éloge, on ne scauroit disconvenir qu'elle n'en fasse aussi la difficulté: L'emploi de dépositaire de la confiance de toute le monde, demande des qualités extraordinaires dans celui qui l'exerce; et il est assez difficile d'avoir de si grandes et de si fréquentes liaisons avec le public, sans courir souvent risque de lui nuire. Ainsi, la probité, qui doit être le caractère essentiel de tous les hommes, et qui suffit dans quelques-uns des emplois de la vie civile, n'est pas suffisante dans un notaire; peut-être même ne seroit-elle pour lui qu'une qualité stérile, si elle n'etait éclairée par la science." 4

there is to be one appointed for every six thousand inhabitants. In other cities, boroughs, or villages, there may be not less than two or more than five appointed for every department of the justice of the peace. To assure complete independence, they are appointed for life. They cannot be removed from their residence without their own consent.

8 Art. 9, Law 25 Ventose, An. XI.

4 La Science parfaite des Notaires, par De Ferriere, Tome 1, p. 1.

CHAPTER III.

OFFICE AND DUTIES.

§ 17.

§ 18.

§ 16. In general.

The States in which notaries do not take acknowledgments.

In Louisiana.

§ 16. In general, the chief official duties of notaries in this country are to evidence certain acts, and confer upon them a certain authenticity; as to take the acknowledgment of deeds and of other instruments in writing; to make protest of negotiable paper and give notice thereof to parties entitled; to administer oaths; to take affidavits and depositions; and, in maritime cities, to make marine protests. Thus, Lord Tenterden observes, in King v. The Scriveners' Company:1 "There is another part of the duty of notaries, and that is to receive the affidavits of mariners and masters of ships, and then to draw up their protests, which is a matter that requires care, attention, and diligence. Besides that, many documents pass before notaries, under their notarial seal, which gives effect to them and renders them evidence in foreign countries."

In some of our States some of these powers are withheld from notaries, while in others they are intrusted with additional functions, which will be noticed.

§ 17. The States in which notaries do not take acknowledgments of deeds are: Kentucky, Maine, Maryland,

10 B. & C. 518.

and New Jersey. In Mississippi, since 1872, notaries are empowered to "receive the proof or acknowledgment of all instruments of writing relating to commerce and navigation, letters of attorney, and such other writings as are commonly proved before notaries within the United States." And by Sec. 7 of the same act they are given power to take the ac knowledgments of deeds.

Before 1872, in this State, acknowledgments were to be made before a judge of the Supreme Court, or any judge of the Circuit Court, any chancellor, any clerk of a Court of Record, justice of the peace, or a member of the board of county supervisors.2

In Maine, acknowledgments of deeds are made before justices of the peace; but if made out of the State, they may be taken by a notary. In Brown v. Lunt, it was held that an acknowledg ment of a deed before a justice of the peace de facto is sufficient.4

In Maryland, notaries have no power to take acknowledgments, but acknowledgments properly taken out of the State may be received in evidence.

In New Jersey, acknowledgments may be taken before a jus tice of the Supreme Court, one of the masters in chancery, one of the judges of common pleas, or before a commissioner of deeds appointed by the governor.5

In North Carolina, acknowledgment of deeds is made before a judge of probate, since the adoption of the Code of Procedure in 1868.6 By Chapter 32 of the Laws of 1870 it is declared that the probate of all deeds and other instruments, under laws prior to the adoption of the Code of Civil Procedure, are valid as if taken under existing laws; but, under the present law, notaries can take acknowledgments, though they are not permitted to take the privy examination of femes covert.8

1 Act April 5th, 1872.

2 Code 1871, Sec. 2310.

3 Rev. Stat. 1871, p. 561.

4 37 Me. 423.

5 Nixon's Digest, p. 144.

6 Civil Code of Proced. Sec. 429.

7 Before this, acknowledgments were taken before one of the judges of the Supreme or Superior Court, or in the County Court where the land was situated. 8 Rev. Code, 1855, p. 239; Battle's Dig. p. 630.

§ 18. In Louisiana, as we might naturally expect from its former history, notaries are intrusted with large and responsible powers, and have duties to perform like those devolving upon notaries in France.

They are empowered "to make inventories, appraisements, partitions, to receive wills, make protests, matrimonial contracts, conveyances, and generally all contracts and instruments in writing; to hold family meetings and meetings of creditors; to receive acknowledgments of instruments under private signature; to affix the seals upon the effects of deceased persons, and to raise the same."1

And notaries in the parish of West Feliciana are authorized to perform the marriage ceremony.2

In Florida, notaries are also authorized to solemnize the rites of matrimony.3

§ 19. May act as justices of the peace in some States. -In Georgia, notaries are invested with the powers of justices of the peace, by virtue of their office. In Lynes v. State, it is held that, under the Constitution of 1868, commissioned notaries public are clothed with judicial powers; they are ex officio justices of the peace.

dis

In some of our States there has always been an intimate relation between the office of a notary and that of a justice of the peace. In Mississippi, until recently, justices of the peace charged the duties of notaries; and, in Virginia, notaries are allowed to exercise the powers and functions of “ conservators of the peace." 5

In Texas, the constitution gives to justices of the peace the power to act as notaries ex officio. In Gilleland v. Drake, it was held that though the constitution recognizes justices of the peace as notaries ex officio, it did not thereby abolish the office of notary, or do away with the Law of 1846. Notaries are recognized and validity given to their official acts by foreign governments, who would not accord the same recognition to the notarial acts of such ex officio notaries as justices of the peace,

1 Rev. Stat. 1870, Sec. 2492.

2 Sec. 2211.

3 Bush's Digest, p. 613.

4 46 Ga. 208.

5 Act March 8th, 1873.

6 36 Tex. 677.

and therefore it was held that the necessity of continuing the office was understood by the framers of the constitution, and their intention was not to repeal the Law of 1846, under which they were appointed.

By Section 1091 of the Alabama Code, it is provided: "When there is no notary public, or he is absent or incapable of acting, any justice of the peace may discharge the duties required of such notary by the laws of this State, for which he shall receive the fees allowed by law for such services; but when he acts as a notary he must set forth, in his certificate, protest, or notice, that there is no notary public, or that the notary public is absent or incapable of acting, which certificate shall be evidence of such fact." This is almost identical with Article 2304 of the Civil Code of Lower Canada, which enacts: "In case there is no notary in the place, or he is unable or refuses to act, any justice of the peace in Lower Canada may make such noting and protest, and give notice thereof in the same manner; and his acts in that behalf have the same effect as if done by a notary; but such justice must set forth in the protest the reasons why the same was not made by the ministry of a notary."

§ 20. Notaries take depositions in more than two-thirds of our States by virtue of their office, and are intrusted with the necessary powers to issue subpoenas for witnesses, punish for contempt, and do whatever is required to carry out their duties in this respect, as justices of the peace may do.1 From an examination of the statutes of the various States, it appears that notaries, as such, are not authorized to take depositions in the States of Alabama, Delaware, Florida, Georgia, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, and New York. In Louisiana, they are authorized to take depositions in the parish of Orleans.2

§ 21. The power to take affidavits seems to have been a function of a notary public for a very long time; though a notary had not necessarily this power by virtue of his office under the common law, but derived it from statutory enactments. Brooke,

1I have examined in Sec. 70. the powers of notaries when taking depositions. 2 Digest of Stat. 1870, Sec. 2539.