be made without this State, but within the United States, and within the jurisdiction of the officer, before either: 1. A justice, judge, or clerk of any Court of Record of the United State; or, 2. A justice, judge, or clerk of any Court of Record of any State; or, 3. A commissioner appointed by the governor of this State for that purpose; or, 4. A notary public; or, 5. Any other officer of the State where the acknowledgment is made, authorized by its laws to take such proof or acknowledgment."

The laws of New York allow acknowledgments to be made before the same persons. In addition, an acknowledgment may be made before the mayor of any city in the United States. (Laws 1845, p. 89.)

It will generally be found that the persons designated in the California Civil Code as capable of taking acknowledgments out of the State, are also permitted to do the same by other States, with the exception of notaries public, before referred to.

ACKNOWLEDGMENTS OUT OF THE UNITED STATES.

Generally, ministers and consuls of the United States, abroad, can take acknowledgments to be recorded here; and also judges of Courts of Record. The provision of the Civil Code of California, Sec. 1183, will indicate with sufficient certainty the officers that are generally permitted to take acknowledgments out of the United States. The Code provides an acknowledgment may be before: 1. A minister, commissioner, chargé d'affaires of the United States resident and accredited in the country where the proof or acknowledgment is made; or, 2. A consul or vice-consul of the United States, resident in the country where the proof or acknowledgment is made; or, 3. A judge of a Court of Record of the country where the proof or acknowledgment is made; or, 4. Commissioners appointed for such purpose by the governor of the State, pursuant to special statutes; or, 5. A notary public.

By statutes of New York, acknowledgments in foreign countries may be made before any minister, chargé d'affaires, consul, vice-consul, deputy consul, consular agent, vice-consular agent, commercial agent, or vice-commercial agent of the United States Government, resident in any foreign port or country, or before any

commissioner of deeds for the State of New York in any foreign city. (1 R. S. 757; Laws 1816, p. 118; 1863, p. 449; 1865, p. 776; 1875, p. 119.)

In CANADA, deeds of property in New York may be proved or acknowledged in Canada before a judge of the highest Court in Upper or Lower Canada (Laws 1829, p. 348); also before any United States consul, the judge of any Court of Record, or the mayor of any city within the Dominion who will certify the same. If the proof or acknowledgment be taken by a judge, there must be attached a certificate, under the name and seal of the clerk of the Court, that the judge is a judge thereof; that such Court has a seal; that he is the clerk thereof; that he is well acquainted with the handwriting of such judge, and verily believes his signature genuine. (1 Laws 1870, p. 503.)

In GREAT BRITAIN and IRELAND, the party may acknowledge before the mayor of London, Dublin, Edinburgh, or Liverpool, or before the officers above named. (1 R. S. 757.)

§ 50. The authority to take affidavits is given to notaries by statute in all our States; but it should be remembered this authority is one purely derived from statute law, and did not appertain to the office originally; and therefore Courts cannot take judicial notice of the fact that notaries are authorized to take affidavits, outside of the jurisdiction of those Courts. So the Court say in Keefer v. Mason:1 "The power to administer oaths is not one of the incidents of the office of notary public under the general law merchant, nor was it, as far as we can ascertain, under the Roman law, from which the office is derived. Where that power is annexed to the office, it is so by virtue of positive enactment, and we cannot presume its existence in the absence of all proof or ground for presumption."2 It is not usual for notaries to have this power in other countries; they do not exercise it in Canada, for there are "commissioners of affidavits" appointed for that purpose.3

It follows, that an affidavit taken out of the jurisdiction of the Court cannot be recognized, unless the authorized and official character of the officer is authenticated. So it was held, in England, that when an affidavit is made before a notary abroad, the signature of the notary must be verified before the affidavit can be admitted.5 It is required that the signature shall be

1 36 Ill. 408.

2 To the same point, Blanchard v. Bennett, 1 Or. 328.

3 Consolidated Stat. Canada, p. 889.

4 Behn v. Young, 21 Ga. 207.

5 In re Davis' Trusts, L. R. 8 Eq. 98.

verified by a consul; but affidavits on behalf of the plaintiff, taken before a notary public in America, at a place 120 miles distant from the residence of any British consul, were allowed to be filed by the clerk of records and writs, with the written consent of the defendant.1

In Haggett v. Iniff,2 leave was asked in the Court of Chancery to file certain affidavits, which had been sworn to at Geneva, in the county of Ontario, in the State of New York, before one Allen, a notary public of that place. In support of the application there was read a certificate, signed by the English consul at New York, that Allen was, at the date of the certificate, a notary public in and for the State of New York, to whose official act credit was due. On a former occasion this affidavit was refused, because it did not appear a notary public had power to take affidavits; but on this occasion it was shown, by the evidence of the consul-general of the United States in London, that, according to the laws of the United States, a notary public was duly qualified to administer oaths and take affidavits in any law proceedings in that county. Leave was then granted to file the affidavits.

§ 51. Definition of affidavit.-An affidavit is defined in one case to be an oath in writing sworn before and attested by him who has authority to administer the same, and hence, if the jurat is not signed, that which purports to be an affidavit is a mere nullity.

In Shelton v. Berry, it is defined to be a voluntary oath reduced to writing, and taken before some officer who has authority to administer and certify the same. The distinction between an affidavit and a deposition is given in Stimpson v. Brooks.5 It is there said: "Deposition is a generic expression, embracing all written evidence verified by oath, and thus includes affidavits, but in legal language a distinction is maintained in Courts of Law and Chancery between depositions and

1 Lyle v. Elwood, L. R. 15 Eq. 67.

2 31 Eng. L. & Eq. 202. Decided in 1854.

mean a justice of

8 Knapp v. Duclo, 1 Mich. (N. P.) 183. The letters "J. P. " the peace; they are well-known abbreviations, and in common use. People, 4 Scam. 478.

419 Tex. 154.

Shattuck v.

53 Blatchf. C. C. 456.

affidavits. A deposition is evidence given by a witness under interrogatories, oral or written, and usually written down by an official person; while an affidavit is the mere voluntary act of the party making the oath, and may be, and generally is, taken without the cognizance of the one against whom it is to be used." "1

§ 52. The venue. It is presumed, when no venue is stated, that the affidavit was taken within the jurisdiction of the officer taking the affidavit.2 So it is held that the absence of a venue is not fatal to an affidavit, for the important thing is that it shall appear that the oath was administered by a person authorized to administer the same; and the omission to state the venue may be aided, when the affidavit is offered to be used in legal proceedings, by the presumption that the officer acted within his jurisdiction, and on a prosecution for perjury, by proof extrinsic to the paper.3

This proposition is not accepted by the New York Courts, for it has been held there that an affidavit without a venue, verifying a complaint taken before a commissioner of deeds whose residence is not mentioned, is a nullity, and no presumption arises that an affidavit has been made at any particular place.4

§ 53. Signature by affiant.-In the absence of some statute or rule of Court requiring it, a signature of the affiant is not essential, though usual. If reduced to writing, and certified by

1 In the Code of Civil Procedure of California, Sec. 2003, an affidavit is defined to be "a written declaration under oath made without notice to the adverse party."

2 Parker v. Baker, 8 Paige, 428; Mosher v. Heydrick, 45 Barb. 549; Perkins v. Collins, 3 N. J. Eq. 482. The venue is prima facie evidence of the place where the affidavit was taken, and helps out the omission of the place in the body of an affidavit. Belden v. Devoe, 12 Wend. 225, note; Hall v. Davis, 44 Ill. 497. The letters "ss" usually added to the venue are held not to be essential, though useful. They signify to wit, and fix the place more definitely where the affidavit is made, to show it is within the jurisdiction of the officer. 1 Chitty on Pl. 248; 1 Cow. Tr. 505.

8 Young v. Young, 18 Minn. 90. In this case there are full citations of authorities.

4 Lane v. Morse, 6 How. Pr. 394; Cooks v. Staats, 18 Barb. 407; Vincent v. People, 5 Park. Cr. 88; Thompson v. Burhans, 61 N. Y. 52.