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certificate immediately at the close of the § 92.35 Errors in certificate of acknowl- i deed on the last page if space permits, or, if a separate sheet is necessary, using the printed Form FS-88 itself.
§ 92.33 Execution of certificate of acknowledgment.
(a) When certificate should be executed. A consular officer should execute a certificate of acknowledgment immediately after the parties to the instrument have made their acknowledgment. Allowing several days or weeks to elapse between the time the acknowledgment is made and the certificate executed is undesirable, even though the officer may remember the acknowledgment act.
(b) Venue. The venue must be shown as prescribed in § 92.14.
(c) Date. The date in the certificate must be the date the acknowledgment was made. This is not necessarily the same as the date the instrument was executed. In fact, there is no reason why an instrument may not be acknowledged a year or more after the date of its execution, or at different times and places by various grantors.
(d) Names of parties. The name or names of the person or persons making the acknowledgment should appear in the certificate in the same form as they are set out in the acknowledged document, and in the same form as their signature on the instrument.
(e) Additional statements. When executing a certificate of acknowledgment on Form FS-88, the notarizing officer may include any necessary additional statements in the blank space below the body of the certificate.
(f) Signing and sealing certificate. The certificate of acknowledgment shall be signed and sealed as prescribed in §§ 92.15 and 92.16.
§ 92.34 Fastening certificate to instru
The proper place for the certificate of acknowledgment is after the signature of the parties to the instrument. If the instrument is a printed form, the certificate will almost invariably be a part of the form. When Form FS-88 is used or when the certificate must be prepared on a sheet separate from the instrument, it should be fastened to the instrument as the last sheet. The method of fastening notarial certificates is prescribed in § 92.17.
A consular officer having taken an acknowledgment of an instrument and made a certificate of that fact cannot afterwards amend or change his certificate for the purpose of correcting a mistake. This can be done only by the parties reacknowledging the instrument. However, typographical errors may be corrected by striking out the erroneous characters and inserting the correct ones above. Such changes should be initialed by the parties who executed the instrument and by the notarizing officer. § 92.36 Authentication defined.
An authentication is a certification of the genuineness of the official character, i.e., signature and seal, or position of a foreign official. It is an act done with the intention of causing a document which has been executed or issued in one jurisdiction to be recognized in another jurisdiction. Documents which may require authentication include legal instruments notarized by foreign notaries or other officials, and copies of public records, such as birth, death, and marriage certificates, issued by foreign record keepers.
§ 92.37 Authentication procedure.
(a) The consular officer must compare the foreign official's seal and signature on the document he is asked to authenticate with a specimen of the same official's seal and signature on file either in the Foreign Service office or in a foreign public office to which he has access. If no specimen is available to the consular officer, he should require that each signature and seal be authenticated by some higher official or officials of the foreign government until there appears on the document a seal and signature which he can compare with a specimen available to him. However, this procedure of having a document authenticated by a series of foreign officials should be followed only where unusual circumstances, or the laws or regulations of the foreign country require it.
(b) Where the State law requires the consular officer's certificate of authentication to show that the foreign official is empowered to perform a particular act, such as administering an oath or taking an acknowledgment, the consular officer must verify the fact that the foreign official is so empowered.
(c) When the consular officer has satisfactorily identified the foreign seal and signature (and, where required, has verified the authority of the foreign official to perform a particular act), he may then execute a certificate of authentication, either placing this certificate on the document itself if space is available, or appending it to the document on a separate sheet (see § 92.17 on the fastening of notarial certificates).
§ 92.38 Forms of certificate of authentication.
The form of a certificate of authentication depends on the statutory requirements of the jurisdiction where the authenticated document will be used (see § 92.39 regarding the provisions of Federal law). Before authenticating a document for use in a State or Territory of the United States, a consular officer should consult the pertinent law digest to ascertain what specific requirements must be met, or he should be guided by any special information he may receive from the attorney or other person requesting the document with regard to the applicable statutory requirements. (See § 92.41(e) regarding material which should not be in the certificate of authentication.) If no provisions relating to authentications can be found in a particular State or Territorial law digest, and in the absence of any special information from the attorney or other person requesting the document, the officer should prepare the certificate of authentication in the form which seems best suited to the needs of the case. When in his opinion the circumstances seem to warrant, and always in connection with certificates of marriage or divorce decrees, a consular officer should include in the body of his certificate of authentication a qualifying statement reading as follows: "For the contents of the annexed document I assume no responsibility."
$92.39 Authenticating foreign public documents (Federal procedures).
ment of record, or on file in a public office of a foreign country or political subdivision thereof, if certified by the lawful custodian thereof, may be admitted in evidence when authenticated by a certificate of a United States consular officer resident in the foreign country, under the seal of his office.
(b) The consular officer's certificate should indicate that the copy has been certified by the lawful custodian.
(c) In the absence of a consular officer of the United States as an officer resident in the State of the Vatican City, a copy of any document of record or on file in a public office of said State of the Vatican City, certified by the lawful custodian of such document may be authenticated by a consular officer of the United States resident in Rome, Italy (22 U.S.C. 1204).
(a) A copy of a foreign public document intended to be used as evidence within the jurisdiction of the Federal Government of the United States must be authenticated in accordance with the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 948, sec. 92(b), 63 Stat. 103; 28 U.S.C. 1741). This provision of Federal law provides that a copy of any foreign docu
§ 92.40 Authentication of foreign extradition papers.
Foreign extradition papers are authenticated by chiefs of mission.
§ 92.41 Limitations to be observed in authenticating documents.
(a) Unknown seals and signatures. A consular officer should not authenticate a seal and signature not known to him. See § 92.37(a) regarding the necessity for making a comparison with a specimen seal and signature.
(b) Foreign officials outside consular district. A consular officer should not authenticate the seals and signatures of foreign officials outside his consular district.
(c) Officials in the United States. Consular officers are not competent to authenticate the seals and signatures of notaries public or other officials in the United States. However, diplomatic and consular officers stationed at a United States diplomatic mission may certify to the seal of the Department of State (not the signature of the Secretary of State) if this is requested or required in particular cases by the national authorities of the foreign country.
(d) Photostat copies. Consular officers should not authenticate facsimiles of signatures and seals on photographic reproductions of documents. They may, however, authenticate original signatures and seals on such photographic reproductions.
(e) Matters outside consular officer's knowledge. A consular officer should not include in his certificate of authentica
tion statements which are not within his power or knowledge to make. Since consular officers are not expected to be familiar with the provisions of foreign law, except in a general sense, they are especially cautioned not to certify that a document has been executed or certified in accordance with foreign law, nor to certify that a document is a valid document in a foreign country.
(f) United States officials in foreign countries. An authentication by & United States consular officer is performed primarily to cause the official characters and positions of foreign officials to be known and recognized in the United States. Consular officers should not, therefore, undertake to authenticate the seals and signatures of other United States officials who may be residing in their consular districts.
(g) Officers of the Foreign Service in other countries. An officer of the Foreign Service stationed in one country is not expected to authenticate the signature or seal of an officer of the Foreign Service stationed in another country. When it is necessary for the seal and signature of an officer of the Foreign Service to be authenticated, such authentication will be done in the Department of State. An official of a foreign government requesting the authentication of the seal and signature of an officer of the United States Foreign Service who is, or was, stationed in another country should be informed that the document to be authenticated will have to be sent to the Department for this purpose. Any document bearing the seal and signature of an officer of the Foreign Service which is received at a Foreign Service post from a person in the United States with the request that it be further authenticated should be referred to the Department of State.
Certification of copies of foreign records relating to land titles. In certifying documents of the kind described in Title 28, section 1742, of the United States Code, diplomatic and consular officers of the United States will conform to the Federal procedures for authenticating foreign public documents (§ 92.39), unless otherwise instructed in a specific case.
§ 92.43 Fees for notarial services and authentications.
The fees for administering an oath or affirmation and making a certificate
thereof, for the taking of an acknow edgement of the execution of a documen and executing a certificate thereof, for certifying to the correctness of a copy or an extract from a document, official private, for authenticating a foreign doc ument, or for the noting of a bill of ex change, certifying to protest, etc., are a prescribed under the caption Notaria Services and Authentications in th Tariff or Fees, Foreign Service of th United States of America (§ 22.1 of thi chapter), unless the service is performe under a "no fee" item of the same Tariff If an oath or affirmation is administere concurrently to several persons and onl one consular certificate (jurat) is exe cuted, only one fee is collectible. If mor than one person joins in making an ac knowledgment but only one certificate executed, only one fee shall be charged § 92.44 Fees for protesting nonpaymen
of bills of exchange.
The fee chargeable under item 55 of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter) is the same for each bill of exchange protested by the consular officer regardless of the number of parties (drawer or maker, and endorsers) to whom "notice of protest" is sent at the request of the person requiring the serv ice. In addition to the fixed fee, the consular officer should charge under item 85 for time spent outside the office in presenting the negotiable instrument for acceptance or payment.
The services at Foreign Service posts for which no fee is chargeable are these designated by "no fee" entries in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
DEPOSITIONS AND LETTERS ROGATORY § 92.49 Deposition defined.
A deposition is the testimony of a witness taken in writing under oath or affirmation, before some designated or appointed person or officer, in answer to interrogatories, oral or written. (For the distinction between a deposition and an affidavit see § 92.22.)
Use of depositions in court actions.
Generally depositions may be taken and used in all civil actions or suits. In criminal cases in the United States, a
$92.51 Methods of taking depositions in foreign countries.
Rule 28(b) of the Rules of Civil Procedure for the District Courts of the United States provides that depositions may be taken in foreign countries by any of the three following methods:
(a) On notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States;
(b) By commission, before such person or officer as may be appointed by the commission;
(c) Under letters rogatory, before an appropriate foreign court.
Rule 15 of the Federal Rules of Criminal Procedure provides that depositions may be taken in the same manner as in civil cases, but only upon order of court. The statutes of the States define the methods which may be employed for taking depo#sitions in foreign countries for use in State courts and the provisions vary from one jurisdiction to another. However, E provision is usually made for one or all of the aforementioned methods.
"Deposition on notice" defined.
A "deposition on notice" is a deposition taken before a competent official after reasonable notice has been given in writing by the party or attorney proposing to take such deposition to the opposing party or attorney of record. Under the Federal law, diplomatic and consular officers are defined as competent officials for taking depositions on notice in foreign countries (see § 92.51). This method of taking a deposition does not necessarily involve the issuance of a commission or other court order.
"Commission to take depositions" defined.
examined in the court or before the body issuing the commission. In Federal practice, a commission to take depositions is issued only when necessary or convenient, on application and notice. The commission indicates the action or hearing in which the depositions are intended to be used, and the person or persons required to take the depositions, usually by name or descriptive title (see § 92.55 for manner of designating consular officers). Normally a commission is accompanied by detailed instructions for its execution.
§ 92.54 "Letters rogatory" defined.
In its broader sense in international practice, the term "letters rogatory" denotes a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States usage, letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity. The legal sufficiency of documents executed in foreign countries for use in judicial proceedings in the United States, and the validity of the execution, are matters for determination by the competent judicial authorities of the American jurisdiction where the proceedings are held, subject to the applicable laws of that jurisdiction. See § 92.66 for procedures in the use of letters rogatory requesting the taking of depositions in foreign jurisdictions.
§ 92.55 Consular authority and responsibility for taking depositions.
(a) Requests to take depositions or designations to execute commissions to take depositions. Any United States consular officer may be requested to take a deposition on notice, or designated to execute a commission to take depositions. A commission or notice should, if possible, identify the officer who is to take the depositions by his official title only as in the following manner: "Any Consul or Vice Consul of the United States of America at (name of locality)". The consular officer responsible for the performance of notarial acts at a post should act on a request to take a deposition on notice, or should execute the com
A "commission to take depositions" is a written authority issued by a court of justice, or by a quasi-judicial body, or a body acting in such capacity, giving power to take the testimony of witnesses who cannot appear personally to be
mission, when the documents are drawn in this manner, provided local law does not preclude such action. However, when the officer (or officers) is designated by name as well as by title, only the officer (or officers) so designated may take the depositions. In either instance, the officer must be a disinterested party. Rule 28 (c) of the Rules of Civil Procedure for the District Courts of the United States prohibits the taking of a deposition before a person who is a relative, employee, attorney, or counsel of any of the parties, or who is a relative or employee of such attorney or counsel, or who is financially interested in the action.
(b) Authority in Federal law. For the basic provisions of law controlling the taking of all depositions for use in either State or Federal courts, for a statement of the necessity to charge the appropriate fee, and for a statement of the penalty for the giving of false evidence, see Title 22, sections 1195 and 1203, of the United States Code. For the more detailed provisions which control particularly the taking of depositions for courts of the United States (i.e., for the Federal courts) see the Rules of Civil Procedure for the District courts of the United States, which appear in Title 28 of the United States Code, following section 2072 thereof. See also Rules of the Court of Claims of the United States, following section 2071 of Title 28. For the provisions of law which govern particularly the taking of depositions to prove the genuineness of foreign documents which it is desired to introduce in evidence in any criminal action or proceeding in a United States (i.e., Federal) court see Title 18, sections 3491 through 3496, of the United States Code.
(c) Procedure where laws of the foreign country do not permit the taking of depositions. In countries where the right to take depositions is not secured by treaty, consular officers may take depositions only if the laws or authorities of the national government will permit them to do so. Consular officers in countries where the taking of depositions is not permitted who receive notices or commissions for taking depositions should return the documents to the parties from whom they are received explaining why they are returning them, and indicating what other method or methods may be available for obtaining the depositions, whether by letters rogatory or otherwise.
In taking a deposition on notice or executing a commission to take depositions, a consular officer should conform to any statutory enactments on the subject in the jurisdiction in which the depositions will be used. He should also comply with any special instructions which accompany the request for a deposition on notice or a commission. Unless otherwise directed by statutory enactments or special instructions, the officer should proceed as follows in taking depositions:
(a) Request the witnesses, whose testimony is needed, to appear before him; or, at the request of any party to the action or proceeding, request designated persons to supply him or the requesting party with needed records or documents in their possession, or copies thereof;
(b) When necessary, act as interpreter or translater, or see that arrangements are made for some qualified person to act in this capacity;
(c) Before the testimony is taken, administer oaths (or affirmations in lieu thereof) to the interpreter or translator (if there is one), to the stenographer taking down the testimony, and to each witness;
(d) Have the witnesses examined in accordance with the procedure described in §§ 92.57 to 92.60;
(e) Either record, or have recorded in his presence and under his direction, the testimony of the witnesses;
(f) Take the testimony, or have it taken, stenographically in questionand-answer form and transcribed (see § 92.58) unless the parties to the action agree otherwise (rules 30(c) and 31(b), Rules of Civil Procedure for the District Courts of the United States);
(g) Be actually present throughout the examination of the witnesses, but recess the examination for reasonable periods of time and for sufficient reasons;
(h) Mark or cause to be marked, by identifying exhibit numbers or letters, all documents identified by a witness or counsel and submitted for the record. § 92.57 Oral examination of witnesses. When a witness is examined on the basis of oral interrogatories, the counsel for the party requesting the deposition has the right to conduct a direct examination of the witness without interruption except in the form of