777-780 (164) SUPREME COURT REPORTS-COPYRIGHT. (Pt. 11 § 777. STYLE AND COPYRIGHT OF REPORTS. The reports must be published in well-bound volumes, and must be printed on good book paper, in long primer leaded, except the title page, the table of cases, the synopsis, and index. The reporter must copyright each volume of the reports in his own name, but such copyright shall be the property of the state. History: Enacted March 12, 1872; amended March 24, 1874, Code Amdts. 1873-4, p. 68; March 30, 1874, Code Amdts. 1873-4, p. 12. The original section was amended by two acts in 1874, neither of which referred to the other, and with no repealing clause. The last act passed, which takes precedence, is the one given above. The first amendment at the session, which has heretofore been given as the law, was as follows: The reports must be published in well-bound volumes, and must be printed on good book paper, in small pica leaded, and brevier, equal in quality of paper and binding to volumes thirty-three to thirty-nine, inclusive, of California Reports. COPYRIGHT.—Opinions of justices of supreme court and of district courts of appeal and the work of a salaried official reporter, are not copyrightable for benefit of state or of a private publisher.-See Banks vs. Manchester, 128 U. S. 244, 254, bk. 32 L. ed. 425, 9 Sup. Ct. Rep. 36, on application for injunction, 23 Fed. Rep. 143 (refused). § 778. CONTRACT FOR PUBLISHING. The reporter shall have no pecuniary interest in the volumes of reports, but they must be published under the supervision of the court and reporter, by contract, to be entered into by the reporter, secretary of state, and attorney-general, with the person or persons who shall agree to publish and sell the said reports, for a period of ten years, on the terms most advantageous to the state and the public, and at a rate not to exceed four dollars per volume of seven hundred pages. History: Eracted March 12, 1872; amended March 24, 1874, Code § 779. PROPOSALS AND AWARD. Before entering into said contract, it shall be the duty of the secretary of state to advertise for proposals for the publication of said reports, for thirty days, in one daily paper in Sacramento, and one daily paper in San Francisco. It shall be the duty of said reporter, secretary of state, and attorney-general, to consider all proposals for the publication of said reports which may be made to them, and to award the contract to the person or persons who may agree to publish and sell the same on the terms most advantageous to the state and public. History: Enacted March 12, 1872. Original act repealed March 24, 1874, and the section as above given enacted in place of and as substitute therefor, Code Amdts. 1873-4, p. 69. § 780. ESSENTIALS OF CONTRACT. The contract must require the publisher to print and publish each volume in the style required by section seven hundred and seventy-seven, within sixty days from the time at which the manuscript is delivered by the reporter, to sell three hundred copies to the state at the price fixed in the contract, and to keep on hand and for sale at the price stipulated in the contract, a sufficient number of copies of each volume to supply all demands for six years from the publication thereof, and to give bonds for the fulfilment of the terms of the contract, in the sum of ten thousand dollars. History: Enacted March 12, 1872. Original act repealed March 24, 1874, and the section as above given enacted in place of and as substituto therefor, Code Amdts. 1873-4, pp. 69, 70. § 781. DISPOSITION OF REPORTS. The secretary of state must keep on sale, at three dollars per volume, the copies of the edition not distributed under the provisions of section four hundred and ten, and must, at the end of each month, pay into the state treasury the proceeds of all sales made by him. History: Enacted March 12, 1872; amended March 24, 1874, Code Amdts. 1873-4, p. 70; March 30, 1874, Code Amdts. 1873-4, p. 13. The original act was amended by two acts of the session of the legislature of 1873-4, neither of which referred to the other, and neither of which had a repealing clause. The act of March 30th, being the latest enunciation of the will of the legislature, takes precedence, and is as given above. The act of March 24th, which has heretofore been given as the law, is as follows: On the publication of each volume of reports, the secretary of state must purchase, for the use of the state, three hundred copies of said volume, at the price named in the contract, not exceeding four dollars per volume, and after having distributed the same, as required by § 410, shall deposit the surplus copies, if any there be, in the state library. § 782. PROCEEDINGS IF NO CONTRACT MADE. [PUBLICATION BY STATE PRINTER.] If, after advertising as required by section seven hundred and seventy-nine, no proposals are received by the secretary of state, agreeing to print, publish, and sell said volumes at a price not exceeding four dollars per volume, then the state printer must print and bind twelve hundred copies of each volume, and deliver to the secretary of state all the copies printed by him; and the secretary of state must keep the copies of the edition not distributed under the provisions of section four hundred and ten on sale at four dollars per volume, at retail, and at such wholesale price as may be fixed by the governor, controller, and secretary of state, and must, at the end of each month, pay into the state treasury the proceeds of all sales made by him. This act shall not apply to any volume of reports, the printing of which may have been commenced by the state printer at the time the contract herein provided for is made. § 791. NOTARIES PUBLIC; NUMBER GOVERNOR MAY COMMISSION. The governor may appoint and commission such number of notaries public for the several counties and cities and counties of this state as he shall deem necessary for the public convenience, except that in cities and counties of the first class the number shall not exceed eighty. History: Enacted March 12, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 13; March 18, 1878, Code Amdts. 1877-8, p. 24; April 15, 1880. Code Amdts. 1880 (Pol. pt.), p. 59: March 19, 1887, Stats. and Amdts. 1886-7, p. 79; March 19, 1889, Stats. and Amdts. 1889, pp. 377, 378; March 23, 1893, Stats. and Amdts. 1893. p. 289; March 21, 1901, Stats. and Amdts. 1900-1, pp. 793, 794; March 20, 1903, Stats. and Amdts. 1903, p. 244; March 18, 1905, Stats. and Amdts. 1905, p. 199; In effect immediately. §§ 792-794 (166) QUALIFICATIONS OF NOTARIES-RESIDENCE AND DUTIES. 1. Implied contract of notary. 1. Implied contract of notary.-By accepting office of notary one contracts with those who may employ him that he will perform it with integrity, diligence, and skill.-Fogarty vs. Finlay, 10 Cal. 239, 245, 70 Am. Dec. 714. [Pt. III. 2. "Civil office of profit" within meaning of constitutional provision that no person holding any lucrative office under government of United States or any other power shall be eligible to any civil office of profit, applies to notary public.-State ex rel. Summerfield vs. Clarke, 21 Nev. 333, 37 Am. St. Rep. 517, 31 Pac. Rep. 545, 546, 18 L R. A. 313. § 792. QUALIFICATIONS; RESIDENCE. Every person appointed as notary public must, at the time of appointment, be a citizen of the United States and of this state, and twenty-one years of age; must have resided in the county for which the appointment is made for six months. Women having these qualifications may be appointed. History: Enacted March 12, 1872; amended March 10, 1891, Stats. and § 793. TERMS OF NOTARIES PUBLIC. The term of office of a notary public is four years from and after the date of his commission. History: Enacted March 12, 1872; repealed March 19, 1889, Stats. and Amdts. 1889, p. 378; present section enacted February 16, 1899, Stats. and Amdts. 1899, p. 11. Power of successor in office. See post §§ 796-797. Vacancies and how filled.-See post §§ 996 1004. § 794. GENERAL DUTIES OF. 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. History: Enacted March 12, 1872. 12. Ministerial, not judicial, functions exercised by. 13, 14. Power statutory-Cannot change certificate after issuing. 15. Perjury in averring to identity. 16. Seal-What sufficient. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Heidt vs. Minor, 89 Cal. 115, 113, 26 Pac. Rep. 627 (cited). 2. AUTHORITY TO PROTEST must come from holder or some one authorized to have it protested; otherwise notary's act is nullity, but this authority need not appear in certificate. It is presumed in absence of contrary showing.-Gillespie vs. Neville, 14 Cal. 408, 410. 3. DUTY OF NOTARY TO GIVE NOTICE of protest of promissory note.-Tevis vs. Randall, 6 Cal. 632, 635, 65 Am. Dec. 547. 4. DISQUALIFICATION FOR INTEREST. -Prohibition of notary taking acknowledgment of conveyance of property in which he has an interest, is not made by any statute of this state, and therefore, resort to general law upon that subject must be had; such law is uniform that no such thing can be legally done.-Lee vs. Murphy, 119 Cal. 364, 368, 369, 51 Pac. Rep. 549, 955. 5. No disqualification of notary, in taking acknowledgment of protest bills, exists, because agents of parties, where notary not pecuniarily interested in transaction. Bank of Woodland vs. Oberhaus, 125 Cal. 320, 324, 57 Pac. Rep. 1070. 6. EVIDENCE.-Notice of non-payment, etc., of promissory note may be proved by notary's protest or certificate from his record.-McFarland vs. Pico, 8 Cal. 626, 638. 7. Protest of notary evidence of demand and non-payment or non-acceptance of notes as well as of bills.-Connolly vs. Goodwin, 5 Cal. 220, 221. 8. Grantee of deed cannot take acknowledgment. Such acknowledgment is void.Merced Bank vs. Rosenthal, 99 Cal. 39, 47, 31 Pac. Rep. 849, 33 Pac. Rep. 732. 9. Acknowledgment before grantee of a deed is void.—Iowa. Wilson vs. Traer, 20 Mich. Groesbeck vs. Seeley, 13 Mo. Stevens vs. Hampton, 46 Iowa 231. Mich. 329. Mo. 404. 10. Presumption of identity.-Identity of name of mortgagee and notary taking acknowledgment, especially where both are described as residents of same county, raises presumption that mortgagee and notary are same person.-Lee vs. Murphy, 119 Cal. 364, 368, 51 Pac. Rep. 549, 955. 11. Where several grantees.-Grantee of deed cannot take acknowledgment of grantor, and if he does so, certificate as to him is void, but where there are several grantees, each taking separate and defined interest, deed should be treated as if made separately to each grantee and acknowledgment be held good as to all except party taking it.-Murray vs. Tulare Irr. Co., 120 Cal. 311, 314, 49 Pac. Rep. 563, 52 Id. 586. 12. MINISTERIAL OFFICER.-Functions of notary in taking acknowledgments are ministerial and not judicial.-Bank of Woodland vs. Oberhaus, 125 Cal. 320, 324, 57 Pac. Rep. 1070. 13. POWER OF IS STATUTORY-Cannot change certificate.- Notary derives his power from statute. He acts as an officer with special authority for each particular case; acting as under special commission for each case, clothed with limited statutory power. After taking an acknowledgment and making and delivering return, his functions cease, and he is discharged from all further authority. Bours VS. Zachariah, 11 Cal. 281, 291, 293, 70 Am. Dec. 779. 14. Certificate of notary is not act in pais which he may exercise by virtue of his office at any time while in office, and he has not power of amending his acts in pursuance of same general authority which enables him to do them. He cannot, after affixing his certificate to deed, which has passed from him, and been recorded, make and record new certificate-first being fatally defective.-Bours vs. Zachariah, 11 Cal. 281, 291, 293, 70 Am. Dec. 779. 15. PERJURY IS COMMITTED by one who, under oath, administered by notary public, swears falsely for purpose of determining whether he is person who signed deed, which he wished to acknowledge, and upon which statement notary took acknowledgment, certified to it, and annexed his certificate to deed.-Ex parte Carpenter, 64 Cal. 267, 268, 271, 30 Pac. Rep. 816. 16. SEAL OF NOTARY sufficient if impressed on paper.-Connolly vs. Goodwin, 5 Cal. 220, 221. Affidavits.-See KERR'S CYC. CODE CIV. PROC. 2009-2015. Acknowledgments of instruments. See KERR'S CYC. CIV. CODE §§ 1180-1207. Notary's authority to take acknowledgments. See KERR'S CYC. CIV. CODE §§ 1181-1183. Depositions, generally. See KERR'S CYC. CODE CIV. PROC. §§ 2019-2021. Manner of taking depositions in state.See KERR'S CYC. CODE CIV. PROC. §§ 20312038. Oaths and affirmations, administration of generally. See KERR'S CYC. CODE CIV. PROC. §§ 2093-2097. administer Authorization of notary to oaths and affirmations.-See KERR'S CYC. CODE CIV. PROC. § 2093. Protest as evidence of demand for acceptance or payment.-See post § 795. Protest of foreign bills. See KERR'S CYC. CIV. CODE §§ 3225-3238. Waiver of protest of foreign bills.-See KERR'S CYC. CIV. CODE § 3160. Protest of foreign bills as evidence.-See post § 795. Presentment for acceptance.-See KERR'S CYC. CIV. CODE §§ 3185-3189. Presentment for payment. See KERR'S CYC. CIV. CODE §§ 3211-3214, 3248. §§ 795-798 (168) PROTESTS PRIMA FACIE EVIDENCE-COPIES. Excuse of presentment and notice.—See KERR'S CYC. CIV. CODE §§ 3218-3220. Place at which official acts may be performed. See monographic note by Irwin Taylor, 33 L. R. A. 92. Power of notary to act when attorney or party interested. See monographic note 95 Am. Dec. 378. [Pt. IIr Effect of omission to affix seal. See monographic note 74 Am. Dec. 368. Validity of acknowledgment of instrument before notary interested in the transaction. See monographic note by G. H. Parmele, 33 L. R. A. 332; and brief 62 L. R. A. 790.. § 795. PROTESTS, PRIMA FACIE EVIDENCE OF FACTS STATED. 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 post-office nearest thereto, is prima facie evidence of the facts contained therein. History: Enacted March 12, 1872; amended March 30, 1874, Code 1. Applied, cited, construed, referred to. 1. APPLIED, CITED, CONSTRUED, REFERRED TO, etc., in: Kellogg vs. Pacific B. Factory. 57 Cal. 327, 329, 330 (applied); Hendy vs. Desmond, 62 Cal. 260, 261 (cited); Fisk vs. Miller, 63 Cal. 367, 368 (applied); Applegarth vs. Abbott, 64 Cal. 459, 460, 2 Pac. Rep. 43 (cited). evidence. Connolly vs. Goodwin, 5 Cal. 220, 221; McFarland vs. Pico, 8 Cal. 626, 638; Kellogg vs. Pacific B. Factory, 57 Cal. 327, 329, 330; Fisk vs. Miller, 63 Cal. 367, 368; Applegarth vs. Abbott, 64 Cal. 459, 460, 2 Pac. Rep. 43. Certificate of officer is prima facie evidence. See KERR'S CYC. CODE CIV. PROC. § 1833. Entry by officer, prima facie evidence.— See KERR'S CYC. CODE CIV. PROC. §§ 1920, 1926. § 796. RECORDS OF, ON DEATH OR RESIGNATION. 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. History: Enacted March 12, 1872. Resignation, vacancy, filling of vacancies, etc.-See post §§ 995, 1004. § 797. CERTIFIED COPIES OF RECORDS OF A PREDECESSOR. 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. History: Enacted March 12, 1872. Certified copies and certificates of records and papers.-See ante §§ 794, 795. § 798. FEES OF. The fees of notaries are as follows: For drawing and copying every protest for the non-payment of a promissory uote, 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. |