The courts of a state may assume that where such state adopts a statute from the federal government, or another state, it intends also to adopt the construction which has been placed upon that statute by the courts of the jurisdiction from which it is taken." The presumption is that the California legislature, by incorporating the penalties of the Volstead Act into the laws of this state, intended to adopt also the qualification put upon this statute by the federal courts, that Congress only intended to punish the wrongdoer.18

W. V. C.

NOTARIES PUBLIC: DUTY IN TAKING ACKNOWLEDGMENTS: CERTIFICATION UPON PERSONAL KNOWLEDGE-The various state statutes prescribing the duty of a notary in ascertaining the identity of an acknowledger are not uniform. Some require that the notary either "know" or have "satisfactory evidence" that the person making the acknowledgment is the one described in the instrument.1 The California statute, however, is more explicit and exacting. To be legally justified in taking an acknowledgment a notary in this state must either know that the acknowledger is the individual described in and who executed the instrument, or he must have satisfactory evidence of that fact on the oath or affirmation of a credible witness," and he must indicate in his certificate which of these alternative methods was pursued in taking the acknowledgment. For a failure to observe these statutory requirements he is civilly liable to parties injured thereby for all damages approximately resulting from such neglect.*

3

When the notary follows the first alternative and certifies to the acknowledgment upon personal knowledge the question arises as to what degree of acquaintance with the acknowledger is necessary in order to entitle the notary to certify that he "knows" him to be the party described in the instrument. If, in deciding this question, one

17 In Southern Pacific Co. v. Superior Court (1915) 27 Cal. App. 240, 254, 150 Pac. 397, the court says, "That the interpretation which has been placed upon the Interstate Commerce Act by the highest court of the land should be followed by this court when like questions arise out of state laws, results not because of any compelling authority, since for the most part these are questions for local determination, but it is evident that . . . statutes of California to which we have referred, [have] been modeled upon the federal act. . . . This being so, it will be assumed that the people of California in enacting the same or similar terms of their written law intended to express the same meaning as that established as the true meaning of the law from which these laws of the state have been derived."

18 Supra, n. 9.

1 The New York statute is typical of this class of statutes. Laws of New York, 1896, ch. 547, § 252; Birdseye's Consolidated Laws of New York, vol. 7, p. 7513.

2 Cal. Civ. Code, § 1185.

8 Cal. Civ. Code, §§ 1189, 1200.

* Cal. Pol. Code, § 801. Privity with the notary is not essential to recovery. Homan v. Wayer (1908) 9 Cal. App. 123, 98 Pac. 80.

were to consult the prevalent practice in the acknowledgment of documents, he would certainly conclude that the slightest acquaintanceship suffices. Notaries are constantly certifying on personal knowledge upon the flimsiest of information. It is no uncommon practice for these officers to do so in the case of persons whom they have never seen before and who have identified themselves by some inconclusive evidence such as a bank book. For such lax practice, however, notaries can find no justification either in the statute books or court decisions. Quite to the contrary, the appellate courts of California have, in Anderson v. Aronsohn, enunciated stringent but salutary rules for the guidance of notaries in this matter. In this case the notary certified upon personal knowledge to an acknowledgment by impostors to whom he had been introduced under oath some seven months previously and whom he had met five or six times in the interim. All but one of these meetings were casual affairs on the street or at places of amusement. The one was a short business conference at the notary's office a few days before the acknowledgment in question. In a distinct phase of the same case the notary certified upon personal knowledge to the acknowledgment of a woman to whom he had been introduced under oath by his former teacher a year previously and whose acknowledgment he had taken several months previously on another matter. The court held that in neither of these cases was the notary justified in stating in the certificate that the persons who appeared before him were known to him to be those described in the instrument. Personal knowledge sufficient to justify certification involves something more than a few casual meetings following an introduction to the acknowledger."

First appeal, (1919) 181 Cal. 294, 184 Pac. 12, 10 A. L. R. 866; second appeal, (Sept. 21, 1923) 42 Cal. App. Dec. 142, 219 Pac. 1017. This case, involving a claim of some $1600, has been in the courts for the past seven years and bids fair to become a modern Jarndyce v. Jarndyce. As a result of the most recent reversal the case will probably enter the fourth trial in the near future.

The reversal by the Supreme Court of the decision of the District Court of Appeal on the first appeal means that the case of Brown v. Rives (1919) 42 Cal. App. 482, 184 Pac. 32, is no longer good law so far as the point presented in the instant case is concerned.

The phrase "introduction under oath" means that the notary had previously certified to an acknowledgment of this person after his identification by a credible witness. Since this identification is under oath the introduction is said to be under oath.

It is obvious from a reading of the California statute that a notary is not justified in taking a person's acknowledgment merely upon the basis of the party introducing himself. Oakland Bank v. Murfey (1886) 68 Cal. 455, 9 Pac. 843.

Nor is an introduction of the acknowledger to the notary by a third party sufficient even though the introducer is known to the notary as a responsible party. Hatton v. Holmes (1893) 97 Cal. 208, 31 Pac. 1131; Joost v. Craig (1901) 131 Cal. 504, 63 Pac. 840, 82 Am. St. Rep. 374. The fact that the introduction is under oath does not improve the notary's position. Hatton v. Holmes, supra; Anderson v. Aronsohn, supra, n. 5.

Missouri, under a statute similar to the California provision, follows the rule adopted in this jurisdiction to the effect that a mere introduction is not

This knowledge, in the language of the court, "involves such an association with the individuals in relation to other people as establishes their identity with at least reasonable certainty. Such acquaintance must be based upon a chain of circumstances surrounding the parties in question, all of which tend to show that they are what they purport to be. That there is nothing to arouse suspicion is not enough. Something affirmative in the nature of evidence of identity must appear during the course of the acquaintanceship which would not normally appear if the persons were other than they purport to be, before it can be said that their identity has become a matter of knowledge." A definition in the abstract of what constitutes sufficient personal knowledge is, of course, a difficult matter, but it is evident from a perusal of the opinion in the instant case that the flimsy acquaintanceships which form the basis for most of the present day notarial work are insufficient.R

sufficient to justify certification upon personal knowledge. State v. Meyer (1876) 2 Mo. App. 413; State v. Grundon (1901) 90 Mo. App. 266.

The early New York case of Woods v. Bach (1869) 54 Barb. 134, is generally resorted to by opponents of the above doctrine. It must be admitted that the court in that case used language which amply supports the contention that a notary can certify upon personal knowledge after one introduction. But when the particular facts of that case are taken into consideration it is seen that the case is not exactly in point on the instant problem. There was no question of the liability of a notary for a false certification as the certificate stated the absolute truth and the proper parties appeared before the notary. The attempt was made to attack collaterally this certificate in a suit to set aside as fraudulent a debtor's assignment, and since the certificate was absolutely true and there was no question of imposition or notarial liability the rather extravagant language of the court must be discounted. Had such a problem been before the court it is probable that the court would not have given such free rein to the notary. In fact, the concurring opinion of Justice Van Brunt in People v. Schooley (1895) 89 Hun. 391, 35 N. Y. Supp. 429, indicates the attitude the New York court would probably take upon the question of notarial liability presented in the instant case, an attitude requiring something more than an introduction.

Barnard v. Schuler (1907) 100 Minn. 289, 110 N. W. 967, presents the view of a court not bound by specific statutory requirements distinguishing between certifications upon personal knowledge and those upon the oath of an identifying witness. The doctrine therein adopted is the "reasonable man test." While the court intimates that a mere introduction would not be sufficient, this, plus a slight investigation by the notary for corroborating circumstances, would probably suffice. Much less knowledge as to the identity of the acknowledger would entitle the notary to take the acknowledgment in that state than would be necessary to justify a California notary in certifying upon personal knowledge.

Suppose, however, that the notary in this case had had sufficient social or business contact with the impostor to satisfy the principles laid down in the instant case, and hence to absolve himself from liability to persons suffering as a result of the imposition. What would be the basis for freeing him from liability in such a case? There are two possible grounds on which this immunity might be rested. The first is that the notarial certificate in such a case would state the truth. The impostor by a general use of the assumed name would make it his own under the recognized principle that a man may change his name at will. Emery v. Kipp (1908) 154 Cal. 83, 97 Pac. 17, 19 L. R. A. (N. S.) 983, 129 Am. St. Rep. 141; 29 Cyc. 270, and cases there cited. A difficulty arises, however, when the name of the acknowledger in

An objection offered to the strict criterion adopted in this case is that it will impede notarial work and thereby interfere with business activity. This objection is based upon the fact that to comply with

the instrument is qualified by some descriptive phrase such as "owner of block one, etc.," or "of Berkeley." The certificate states that the acknowledger is the person "described" in the instrument. Clearly in this case the acknowledger is not the person described in the instrument if this descriptive phrase is to be considered as describing him within the meaning of the statute. On the basis of pure construction it would seem incontestable that this descriptio personae is part of his description. Legal opinion on this point is scarce. In fact, the case of Joost v. Craig, supra, n. 7, seems to be the only California case in which the point has been raised. The case involved an acknowledged deed certified by the defendant notary. It was assumed by the court that the real owner of the property, Charles Anderson of Redwood City, had not executed or acknowledged the deed, but the notary contended that the plaintiff should not receive judgment because it was not shown that some person known to the notary as Charles Anderson had not appeared before him to acknowledge the deed. The court refused to countenance this claim because the name Charles Anderson in the deed was qualified by the phrase "of Redwood City" and hence to satisfy the acknowledgment statutes the notary would not only have to know a Charles Anderson but the latter would have to fit the description in the deed, i.e., "of Redwood City." It would seem, therefore, that if the immunity of the notary hinges upon the truth of the certificate he would be liable in the case suggested. Whether the courts will consider all descriptive phrases in the same manner as the one involved in the Joost case is a question which the future alone will answer. It is possible that a distinction may be drawn between such phrases as this one indicating the residence of the party and other innumerable ones dealing with particular facts knowledge of which would not be expected of the notary. The fact of the person's residence is one of which the notary should naturally learn if he has the association with the acknowledger required under the rules of the instant case.

Another entirely different ground on which the notary might possibly be held free from liability is that even though the notarial certificate is false, i.e., the person making the acknowledgment is not the one who executed and is described in the instrument, the notary has acted with reasonable care in relying upon his acquaintanceship with the acknowledger as proof of his identity. In other words, the test of his liability would be whether he was negligent, and not whether the certificate was true or false. In this connection, however, it is necessary to consider statements in two California cases which upon their face impose an absolute liability upon the notary certifying upon personal knowledge and allow no leeway for a mistake as to the identity. Justice Temple, in Joost v. Craig, supra, states that a certificate upon personal knowledge is a guaranty of the genuineness of the instrument. Justice Lennon, on the first appeal of the instant case, reiterates this language. If the notary is a guarantor the element of negligence would not be considered for he would assume the burden of any possible mistake. It is submitted, however, that neither court intended to impose an absolute liability and that these statements must be read in connection with the context. Justice Lennon, immediately after the above mentioned statement, goes on to consider what degree of acquaintance will justify the notary in certifying upon personal knowledge. This seems a recognition that he is not absolutely liable but is only to be held to a strict standard of care in coming to the conclusion that he "knows" the acknowledger to be the party described in the instrument. If such is the rule the previous discussion as to whether certain descriptive phrases are considered as part of the notarial description would assume importance only in the situation where the notary has been so negligent as to deprive himself of the "reasonable care" defense and hopes to secure immunity on the ground that the certificate states the absolute truth.

the requirement enunciated in the instant case notaries will have to resort to an extensive use of the method of taking the oath of a credible witness. This method, it is true, is not as convenient or facile as that of certifying upon personal knowledge." Such an argument seems shortsighted and unconvincing, however, when the attention is focused upon the very important part which the system of acknowledgments plays in the business world. The whole theory of recordation of instruments so as to have them constitute constructive notice is predicated upon the proposition that the authenticity of such documents has been determined upon through proper investigation by the certifying officer. The certificate is also received in court as evidence that the instrument is genuine. Furthermore, one of the principal objects of the notarial system is to guard against the very flagrant impositions that careless notarial work made possible, or at least facilitated to a great extent, in the cases cited in this comment. Far fewer forgeries of title documents with their consequent defrauding of innocent grantees and mortgagees would be perpetrated if notaries were to use the care enjoined in the instant case. It is to be hoped, therefore, that they will read in this decision a clear warning of the possibility of a severe civil liability if they persist in their present ways. W. M. G.

TAXATION INHERITANCE TAX: PROVISION IN WILL PURSUANT TO PREVIOUS AGREEMENT SUPPORTED BY CONSIDERATION-In the case of the Estate of Grogan,1 the question of the taxability of a transfer by will supported by a valuable consideration has been decided for the first time in California by the District Court of Appeal, and the

The witness by whose oath the identification is established under this alternative method must, of course, be known to the notary and believed by him to be trustworthy. A person who is not sufficiently known to the notary to justify the latter in certifying to this party's acknowledgment upon personal knowledge cannot qualify as the identifying witness in an acknowledgment by a third party. Homan v. Wayer, supra, n. 4.

10 Whether or not this alternative method will be used as extensively as the rules of the present case would seem to require is an interesting query which the future alone will answer. The business world has at the present time a decided dislike for documents acknowledged under this method. There is a fundamental reason for this attitude. Where the notary certifies upon personal knowledge the person relying upon the document knows that the notary is held to a strict degree of care in forming the conclusion that he personally knows the party, and also he knows that the notary and his sureties are liable for any negligence in this respect. But under the alternative method the notary shifts this burden of a possible liability to the identifying witness. So long as the notary acts correctly in assuming that the witness is a proper one he is absolved from liability for any mistake or negligence of the identifying witness. For the notarial liability is substituted a rather uncertain and in many cases valueless right against the identifying witness. Furthermore, while the notarial liability is reasonably clearly defined it is an arguable question as to what the liability of the identifying witness would be. Is he to be held only for a fradulent identification or would negligence render him liable? If the latter, what standard of care would be required of him?

1 (Sept. 8, 1923) 42 Cal. App. Dec. 15, 219 Pac. 87.