river left before he could subscribe them after I had written them off," was held not admissible in evidence.1

§ 73. Certification of official character of officer.—The statutes are not uniform as to how the official character of the officer taking the deposition shall be made to appear. Many States do not insist upon anything further than the officer's own certificate as to his official character; this being accepted as prima facie evidence of his capacity as such officer to take the deposition. Thus, a deposition purporting to have been taken in the State and county named in the commission, and certified by the person taking it, with his name, and the letters "J. P.," is sufficiently authenticated. So, when the parties to a suit agree that a deposition may be taken at a certain place, during a certain month, before T, a notary public in another State, the deposition certified by T may be read by either party without other proof that T was a notary when the deposition was taken.1 And a recent case in Nebraska holds that depositions taken in Illinois by a notary public, certified under his hand and official seal, may be read in evidence without further authentication.5 The seal of a notary public, attesting his certificate to a deposition; need not be impressed upon wax; an impression upon the paper is enough.

When the commission is directed to certain persons named therein, no authentication is required: their signatures and seals are sufficient; but it must appear that the person returning the deposition is the identical person to whom the commission was directed. Thus, a deposition directed to George Dunlair, but taken by George Dunbar, was held inadmissible in evidence, though Dunbar was the man intended. And depositions taken before a commissioner of deeds in another State, appointed by

1 Bell v. Chambers, 38 Ala. 660.

2 Dean v. Dygert, 1 A. K. Marsh. 172; Clement v. Durgin, 5 Me. 9; Savage v. Balch, 8 Id. 27; Adams v. Graves, 18 Pick. 355; Allen v. Perkins, 17 Id. 369; State v. Kimball, 50 Me. 409; Hoover v. Rawlings, 1 Sneed, 287.

3 Hobbs v. Shumates, 11 Gratt. 516.

4 Sargent v. Collins, 3 Nev. 260.

5 Martin v. Coppock, 4 Neb. 173.

Myers v. Russell, 52 Mo. 26.

7 Breyfogle v. Beckley, 16 S. & R. 264.

the State where the deposition is offered in evidence, are sufficiently authenticated by such commissioner's own certificate.1

§ 74. Certain States require a certification of official character, showing that the officer certifying to the deposition was in fact such officer as he claims to be. In the forms will be found the provisions of the statutes of the States where this is required. This certification is necessary where a commission is directed to an officer by his official designation, without naming the individual. Thus, by the laws of Colorado, when a judge or justice of the peace acts as a commissioner, his official character must be certified to under the great seal of the proper Court of the county or city where such deposition is taken.2 So, in Illinois, when any deposition shall be taken by any judge, master in chancery, notary public, or justice of the peace out of the State, or other officer, the return shall be accompanied by a certificate of his official character, under the great seal of the State, or under the seal of the proper Court of record of the county or city wherein such deposition shall be taken. Similar provisions will be found in the statutes of Iowa, Louisiana, Missouri, New Hampshire, and Virginia. In the States of Kansas, Nebraska, and Ohio, and in the Territory of Wyoming, the officers may certify with their own seals, if they have any, but if not, their official signatures must be authenticated.*

3

As we pointed out above, in Louisiana, when depositions are submitted, purporting to be taken before a justice of the peace, a certificate must accompany them showing that such person was in fact the officer he represents himself to be.5 In New Hampshire, a certificate of a county clerk in New York, under the seal of the county, was held competent evidence to show that an individual, who had acted as a magistrate in taking a

1 Johnson v. Cocks, 7 Ark. 672; Den v. Lloyd, 31 N. J. L. 395. At the conclusion of a commission, the commissioner signed his name “A B, Notary Public," but indorsed the commission as follows: "The execution of this commission appears in a certain schedule hereto annexed. A B, Comm'r." It was held that this was sufficient. Munroe v. Woodruff, 17 Md. 159.

2 Rev. Stat. p. 313. Notaries cannot take depositions in this State under a commission.

3 Rev. Stat. of 1874, p. 494.

4 See statutory provisions of these States in the forms.

5 Succession of Grant, 14 La. An. 795; Morrison v. White, 16 Id. 100

NOTARIES-6.

deposition, was, in fact, a justice of the peace.1 In Wells v. Jackson etc. Co.,2 it was held that the authority to take a deposition is sufficiently shown by proof that the person taking it was an acting commissioner or notary. In Vermont, it has been held that a deposition taken by a justice of the peace, under a foreign government, does not authenticate itself.3

§ 75. Return of the deposition.-In some of our States, it is required that the return of the commission shall be indorsed on the commission itself, and not attached to it on a separate paper; but where there is no statutory provision requiring it, the return may be made on a separate paper attached. So, when the return, instead of being indorsed upon the commission itself, was written upon one of the sheets appended by the commissioner, it was held sufficient.1 In New York, in Pendell v. Coon, it was held that the return of a commissioner to take testimony need not be indorsed on the commission itself, nor be on a paper containing the depositions annexed, or any part thereof; but where it is necessary, by reason of the paper containing the depositions being filled thereby, to annex an independent sheet, the return may be on the sheet so annexed. But, in this case, some of the judges held that in case there was sufficient space on the deposition for the return to be written, it should be inserted there, and not attached on a separate paper. In Minnesota, under their statute, the return must be indorsed

1 Dunlap v. Waldo, 6 N. H. 450.

2 47 N. H. 235.

3 Bown v. Bean, 1 D. Chip. 176. See Baker v. Rickhart, 52 Ind. 594. The office of a county clerk is incompatible with the office of a notary, and on his acceptance and qualification as county clerk, the office of notary becomes ipso facto vacated; and a single act of the notary in taking a deposition, after his acceptance of the office of county clerk, will not make him a notary public de facto, but such deposition is void. Biencourt v. Parker, 27 Tex. 558. Where a commission issues to a notary public, if within the United States or Canada, it is sufficient to name the county of his residence; but if the deposition is to be taken in some foreign country, the city or town of his residence must be stated. Lyon v. Barrows, 13 Iowa, 428. Notaries cannot take depositions to be used in Courts in Tennessee. Carter v. Ewing, 1 Tenn. Ch. 212.

4 Cook v. Bell, 18 Mich. 387.

5 20 N. Y. 134. See McCleary v. Edwards, 27 Barb. 239, holding that it cannot be objected to a deposition that the return to the commission was indorsed upon the interrogatories, which, with the deposition, were annexed and secured to the

commission.

on the commission, and it is not sufficient if annexed to the deposition.1

In Savage v. Birckhead,2 in Massachusetts, it was held, where depositions taken under a commission were returned, together with the commission and interrogatories, in an envelope, under the seal of the commissioner, but were not attached to the commission, and the commissioner's certificate of caption was also upon a separate paper in the same envelope, that they should be admitted in evidence.

A deposition taken out of the State by two commissioners, appointed by the Court, should be signed and sealed by both commissioners; the envelope should also be signed and sealed by both commissioners.3 A commission issued to four commissioners jointly, to take the depositions of witnesses in England, was executed and returned by three of the commissioners only, two of whom, however, were of the defendant's nomination; and it was held they were not admissible in evidence.4

1 Beatty v. Ambs, 11 Minn. 331. 220 Pick. 167.

8 Waln v. Freedland, 2 Miles, Penn. 161. 4 Guppy v. Brown, 4 Dall. 410.

Place of presentment for payment.

§ 101. Mode of demanding payment.

§ 102. When paper payable at bank.

§ 103. What will excuse failure to demand payment.

III. PROTEST.

§ 104. Meaning and effect of.

§ 105. What instruments should be protested.

$106. Foreign promissory notes.

§ 107. By whom the protest should be made.

§ 108. Place of protest.

§ 109. Formal preparation of protest.

§ 110. Contents and particulars of protest.

§ 111. Date of protest.