Oberhaus

The main contention on the part of the appellant is that the mortgages are invalid on the ground that the acknowledgments, having been taken before the cashier of the plaintiff bank, are void. The court finds that C. F. Thomas, the notary who took the acknowledgments of said mortgages, was the cashier of the plaintiff bank, but that he was not a stockholder in said bank, nor a director thereof, but an appointee of the board of directors and employed by them as such cashier upon a fixed and definite salary. The evidence fully supports this finding, and further shows that he had no interest in the property or income of the bank; that his services were neither increased nor diminished by its gains or losses, and that his business as notary was distinct and independent of his duties as cashier of the bank, and whatever fees he received or collected as notary were his individually, and did not go to the bank.

In some of the states it has been held that a notary, in taking an acknowledgment, acts judicially; in others, that he acts ministerially. Elliott v. Peirsol, 1 Pet. 328 , was a case that went up from Kentucky, where the clerk was authorized by statute to take and certify the…