793. Term of office.

SEC. 793. The term of office of a notary public is two years from and after the date of his commission.

Vacancy in office, filling: Secs. 996 et seq., post. Successor to have papers: Sec. 796, post.

794. General duties of.

SEC. 794. It is the duty of notaries public:

1. When requested, to demand acceptance and payment of foreign, domestic, and inland bills of exchange, or promissory notes, and protest the same for non-acceptance and non-payment, and to exercise such other powers and duties as by the law of nations and according to commercial usages, or by the laws of any other state, government, or country, may be performed by notaries;

2. To take the acknowledgment or proof of powers of attorney, mortgages, deeds, grants, transfers, and other instruments of writing executed by any person, and to give a certificate of such proof or acknowledgment, indorsed on or attached to the instrument;

3. To take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any court, judge, officer, or board in this state;

4. To keep a record of all official acts done by them;

5. To keep a record of the parties to, date, and character of every instrument, acknowledged or proved before them;

6. When requested, and upon payment of their fees therefor, to make and give a certified copy of any record in their office;

7. To provide and keep official seals, upon which must be engraved the arms of this state, the words "notary public," and the name of the county for which they are commissioned;

8. To authenticate with their official seals all official acts.

795. Protest prima facie evidence of facts stated.

SEC. 795. The protest of a notary, under his hand and official seal, of a bill of exchange or promissory note, for non-acceptance or non-payment, stating the presentment for acceptance or payment, and the non-acceptance or non-payment thereof, the service of notice on any or all of the parties to such bill of exchange or promissory note, and specifying the mode of giving such notice, and the reputed place of residence of the party to such bill of exchange or promissory note, and of the party to whom the same was given, and the postoffice nearest thereto, is prima facie evidence of the facts contained therein. [Amendment, approved March 30, 1874; Amendments 1873-4, 13; took effect July 6, 1874.]

Original section said "primary" instead of "prima facie."

Notary's protest as evidence.-The supreme court of California construed the above section in Kellogg v. Pacific Box Co., 57 Cal. 327, 329. After quoting the section, the court say: "The authors of this provision seem to have contemplated a statement of the service of the notice on any or all of the parties to a protested bill or note in the protest itself. A literal compliance with a requirement that a protest should contain a statement that a notice of it had been served on all of the parties to the protested bill or note might be possible, but would be contrary to usage, so far as we are advised at present. From which we infer that

it

POL. CODE-13

certificate of a notary that notice of a protest had been given to all the parties to a protested bill or note might be attached to the protest, and be admissible in evidence the same as the protest itself. Such we think to have been the practice at the time of the enactment of the code referred to, and the legislature seems to have had that practice in view when enacting the clause above quoted." This section makes the protest prima facie evidence: Hendy v. Desmond, 62 Cal. 200; and prima facie evidence only: Appelgarth v. Abbott, 1 West Coast Rep. 469. But is evidence of such facts only as it distinctly states: Id.; Sprague v. Tyson, 44 Ala. 340; Bradshaw v. Iledge, 10 Iowa, 402; Stiles

193

v. Inman, 55 Miss. 472; Sullivan v. Deadman,

19 Ark. 486; Walmsley v. Rivers, 34 Iowa, 466;

McFarland v. Pico, 8 Cal. 626; Gillespie v. Neville, 14 Id. 408; Browne v. Phila. Bank, 9 Am. Dec. 463; Stewart v. Allison, Id. 433; Smith v. McManus, 27 Id. 519. But the notary's protest must be based upon his own information: Williamson v. Turner, 1 Id. 652. Although the protest is evidence of only facts stated, yet presumptions are sometimes in dulged in in favor of the protest: Bank of Com

796. Records of, on death or resignation.

monwealth v. Mudgett, 44 N. Y. 514; Phillips v. Poindexter, 18 Ala. 579; Bradley v. Northern Bank, 60 Id. 259; Dickerson v. Turner, 12 Ind. 223; Gardner v. Bank of Tennessee, 1 Swan, 420. The protest is not admissible to prove collateral facts therein recited: Dakin v. Graves, 48 N. H. 45; Maccown v. Atchafalaya Bank, 13 La. 342; 1 Parsons on Notes & Bills, 639.

SEC. 796. If any notary die, resign, is disqualified, removed from office, or removes from the county for which he is appointed, his records and all his public papers must, within thirty days, be delivered to the clerk of the county, who must deliver them to the notary's successor, when qualified.

Governor cannot remove notary before term: People v. Jewett, 6 Cal. 291.

797. Certified copies of records of a predecessor.

SEC. 797. Every notary having in his possession the records and papers of his predecessor in office may grant certificates or give certified copies of such records and papers, in like manner and with the same effect as such predecessor could have done.

798. Fees.

SEC. 798. The fees of notaries are as follows: For drawing and copying every protest for the non-payment of a promissory note, or for the non-payment or non-acceptance of a bill of exchange, draft, or check, two dollars. For drawing and serving every notice of non-payment of a promissory note, or of the non-payment or non-acceptance of a bill of exchange, order, draft, or check, one dollar. For recording every protest, one dollar. For drawing an affidavit, deposition, or other paper, for which provision is not herein made, for each folio, thirty cents. For taking an acknowledgment, or proof of a deed, or other instrument, to include the seal and the writing of the certificate, for the first two signatures, one dollar each, and for each additional signature, fifty cents. For administering an oath or affirmation, fifty cents. For every certificate, to include writing the same and the seal, one dollar. [Amendment, approved March 16, 1874; Amendments 1873-4, 71; took affect from passage.]

799. Official bond of notary.

SEC. 799. Each notary must execute an official bond in the sum of five thou sand dollars, which bond must be approved by the judge of the superior court of his county, and filed and recorded as other official bonds of county officers. Amendment, approved April 3, 1880; Amendments 1880, 19 (Ban. ed. 108); took effect immediately.]

800. Certificate of filing bond and oath.

and validity of: Fogarty v. Finlay, 10 Cal. 238; Tevis v. Randall, 6 Id. 632.

SEC. 800. Each notary, so soon as he has taken his official oath and filed his official bond, must transmit a certificate of the facts, under the hand and seal of the county clerk, together with a copy of his official oath, signed by him with his own proper signature, to the office of the secretary of state. [Amendment, approved March 26, 1878; Amendments 1877-8, 24; took effect from passage.] Original section did not have clause from "together" and ending with "signature." Official oath: Sec. 904 et seq., post.

801. Liabilities on official bond.

SEC. 801. For the official misconduct or neglect of a notary public, he and the sureties on his official bond are liable to the parties injured thereby for all the damages sustained.

Liability of notary. By accepting the office, a notary entering upon the discharge of its duties contracts with those who employ him that he will perform such duties with integrity, dili

811. Governor to appoint.

gence, and skill: Fogarty v. Finlay, 10 Cal. 239, a case of defective acknowledgment; Tevis v. Randall, 6 Id. 632, a case of failing to give notice of protest.

ARTICLE IV.

COMMISSIONERS OF DEEDS.

SEC. 811. The governor may appoint in each state of the United States, or foreign state, one or more commissioners of deeds, to hold office for the term of four years from and after the date of their commission.

in

any

See generally the powers and duties of notaries, and the notes to sections of the preceding article.

812. General duties of.

SEC. 812. Every commissioner of deeds has power within the state for which he is appointed:

1. To administer and certify oaths;

2. To take and certify depositions and affidavits;

3. To take and certify the acknowledgment or proof of powers of attorney, mortgages, transfers, grants, deeds, or other instruments for record;

4. To provide and keep an official seal, upon which must be engraved the arms of this state, the words "commissioner of deeds for the state of California," and the name of the state for which he is commissioned;

5. To authenticate, with his official seal, all his official acts. Acknowledgments out of state: Civ. Code, sec. 1182.

813. Effect of acts done by commissioners.

SEC. 813. All oaths administered, depositions and affidavits taken, and all acknowledgments and proofs certified by commissioners of deeds, have the same force and effect, to all intents and purposes, as if done and certified in this state by any officer authorized by law to perform such acts.

814. Oath, when to be filed.

SEC. 814. The official oaths of commissioners of deeds must be filed in the office of the secretary of state within six months after they are taken.

815. Fees.

SEC. 815. The fees of commissioners of deeds are the same as those prescribed for notaries public.

816. List of commissioners to be published.

SEO. 816. The names of all persons appointed commissioners must be published three times in some weekly newspaper published at the seat of govern

ment of the state.

817. Copy of this article to be transmitted to appointee.

SEO. 817. The secretary of state must transmit, with the commission, to the appointee, a certified copy of this article, and of section seven hundred and ninety-eight.

ARTICLE V.

OTHER OFFICERS.

827. Court commissioners.

SEC. 827. The mode of appointment, powers, and duties of court commissioners are fixed by Chapter II., Title III., Part I., of the Code of Civil Procedure.

See Code Civ. Proc., secs. 258 et seq.

De facto officers: See ante, sec. 220, in note.

828. Secretary and bailiff of the supreme court.

SEC. 828. The mode of appointment, powers, and duties of the secretary and bailiff of the supreme court are fixed by Chapter II., Title IV., Part I., of the Code of Civil Procedure.

See Code Civ. Proc., sec. 265.
Salaries: See ante, sec. 739.

829. Phonographic reporters.

SEC. 829. The mode of appointment, powers, and duties of phonographic reporters are fixed by Chapter III., Title IV., Part I., of the Code of Civil Procedure, and sections seven hundred and sixty-nine and seventy hundred and seventy of this code.

See Code Civ. Proc., sec. 269.

Salary: See ante, sec. 739.

830. Clerks, sheriffs, coroners, and other county officers, etc.

SEC. 830. The mode of election of clerks, sheriffs, coroners, and other county and township officers is fixed by Part IV. of this code.

See post, sec. 3901.

831. Attorneys and counselors at law.

Sec. 831. The admission of attorneys and counselors at law is provided for and their duties fixed in Chapter I., Title V, Part I., of the Code of Civil Procedure. See Code Civ. Proc., sec. 275.

X.

RESIGNATIONS, VACANCIES, AND THE MODE OF SUPPLYING THEM...........
XI. PROCEEDINGS TO COMPEL DELIVERY OF BOOKS AND PAPERS...
XII.

MISCELLANEOUS PROVISIONS...

ARTICLE I.

DISQUALIFICATIONS.

841

352

865

875

889

904

920

936

947

995

..1014

.1026

841. Age and citizenship.

SEO. 841. No person is capable of holding a civil office who at the time of his election or appointment is not of the age of twenty-one years and a citizen

of this state.

Citizen of the state: See ante, sec. 51. Requisites for judicial office: See Code Civil Proc., secs. 156, 157, 159.

De facto officers: See ante, sec. 220 and note.

Women eligible.

An Act to make women eligible to educational offices.
[Approved March 12, 1874; 1873-4, 356.]

SECTION 1. Women over the age of twenty-one years, who are citizens of the United States and of this state, shall be eligible to all educational offices within this state except those from which they are excluded by the constitution.

SEC. 2. All acts and parts of acts in conflict with this act are hereby repealed. This act shall take effect from and after its passage.

842. Other disqualifications.

SEC. 842. Provisions respecting disqualification for particular offices are contained in the constitution and in the provisions of the codes concerning the various offices.

Constitutional disqualifications: Of legislator for other office: Art. 4, sec. 19; of officers of United States: Id., sec. 20; by reason of embezzlement and defalcation: Id., sec. 21; of bribery: Art. 20, sec. 10; of conviction of felony: Id., sec. 11; of dueling: Id., sec. 2; of

of lobbying: Art. 4, sec. 35; of officer to be governor: Art. 5, sec. 12; of lieutenant-governor to hold other office: Id., sec. 15; of judge for non-judicial office: Art. 6, sec. 18.

Impeachment disqualifying for future office-holding: Art. 4, sec. 18.

843. County officer not to act as deputy of another officer.

SEC. 843. No county officer must be appointed or act as the deputy of another officer of the same county, except in cases where the pay of the officer so appointed amounts to a sum less than seventy-five dollars per month. [Amendment, approved March 15, 1876; Amendments 1875-6, 23; took effect from passage.]

ARTICLE II.

RESTRICTIONS UPON THE RESIDENCE OF OFFICERS.

852. Certain officers must reside in Sacramento.

SEC. 852. The following officers must reside at and keep their offices in the city of Sacramento: The governor; secretary of state; controller; treasurer of state; attorney-general; surveyor-general; state printer; superintendent of public instructions; justices of the supreme court; clerk of the supreme court; reporters of the supreme court; and adjutant-general.

Section based on Stats. 1854, p. 58, sec. 1, extended. "Absence from this state on business of the state or of the United States shall not affect the question of residence of any person:" Const. Cal., art. 20, sec. 12. "It may be safely said that the legislative power may fix terms and conditions upon the enjoyment and exercise of the duties and functions of an

853. Absence from the state.

office not in conflict with the constitution, but which tend to a more efficient discharge of the duties assigned by that instrument: People v. Haskell, 5 Cal. 357; Ross v. Whittman, 6 Id. 361; People v. Langdon, 8 Id. 1; Brodi v. Campbell, 17 Id. 113; Bople v. Banward, 27 Id. 470:" Commissioners' note.

SEC. 853. No officer mentioned in the preceding section must absent himself from the state for more than sixty days, unless upon business of the state, or with consent of the legislature. [Amendment, approved March 13, 1883; Statutes and Amendments 1883, 280; in force from and after its passage.]

Absence of judicial officer forfeits office: Const. Cal., art. 6, sec. 9.

854. Restrictions upon judicial officers.

Absence of governor, effect of: Const. Cal., art. 5, sec. 16

SEO. 854. Restriction upon the residence of other judicial officers are con

tained in the Code of Civil Procedure.

855. Restrictions upon county officers.

SEC. 855. Restrictions upon the residence of county officers are contained in

Part IV. of this code.

See post, secs. 4101, 4119.