I am unable to concur. Though no precedent has been found which deals with the factual situation here presented, application of recognized legal principles leads, in my opinion, to affirmance of the judgment.
It must be borne in mind that judgment has been entered in plaintiff’s favor against Dowdy and that the only question here presented is the liability of the surety upon his notarial bond.
The basic facts are that Dowdy signed his own name to a certificate of doing business under a fictitious firm name, declaring himself to be the owner of a business actually belonging to and conducted under the name of his employer. Standing alone this could not lay a basis for liability on the bond and the majority opinion so concedes. Next, Dowdy, who was a notary, completed a fictitious notarial certificate upon said firm name document using the name of M. L. Johnson as that of the certifying notary. Thus Dowdy appears in the transaction as signer of the firm name certificate but not as notary. His notarial seal was also affixed but it did not bear his name and hence was one which could belong to any notary.
The bondsman’s obligation is strictissimi juris and is expressly conditioned upon the notary’s faithful performance of “all official duties required of him by law.” The pertinent statute, Government Code, section 8214, provides: “For the official misconduct or neglect of a notary public, he and the sureties on his official bond are liable to the persons injured thereby for all the damages sustained.” It is automatically written into the bond and the phrases of the bond and the statute merge into a single meaning—official misconduct.
It is well established that any criminal, fraudulent or other dereliction of the notary cannot create liability of his surety unless it falls within the concept of “official misconduct.” Section 8205, Government Code, defines the official duties of a notary. The pertinent portion of the statute (as it stood at the times of issuance of the bond and of Dowdy’s forgery) *697is subparagraph (b), reading: “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 acknowledgement, endorsed on or attached to the instrument. Such certificate shall be signed by him in his own handwriting. ” Manifestly this does not include the taking of his own acknowledgement. (See Lee v. Murphy, 119 Cal. 364, 369 [51 P. 549, 955].)
Volume 36, California Jurisprudence 2d, section 9, page 410: “In common with other sureties, those of a notary are never held beyond the strict terms of their agreements. Thus, they are liable only for the acts of the notary when he acts in his official capacity, and are not liable for his wrongful acts as an attorney or agent, or for misconduct that is not official.”
Norton v. Title Guaranty & Surety Co., 176 Cal. 212, 215 [168 P. 16] : “The bond was collateral security for Dreischmeyer's official conduct, not for his general course of action as plaintiff’s agent and legal adviser.”
Heidt v. Minor, 89 Cal. 115, 117-118 [26 P. 627] : “The facts found establish beyond any question the civil and criminal liability of Cordell. But the liability of his sureties, the defendants, depends upon the terms and conditions of the bond which they executed. The sureties upon an official bond undertake for nothing, which is not within the letter of their contract. ‘The obligation is striciissimi juris, and nothing is to be taken by construction against the obligors. They have consented to be bound to a certain extent only, and their liability must be found within the terms of that consent.’ (Per Cooley, J., in Detroit Savings Bank v. Ziegler, 49 Mich. 157 [43 Am.Rep. 456].) That is a clear and concise statement of a rule universally accepted, but as might naturally be expected, courts have differed as to the delinquencies of the principal for which the sureties made themselves liable. . . . It is no part of the duty of a notary public to receive money from or for anybody. It was misconduct, but not official misconduct, to fraudulently obtain it. And it is only against his official misconduct that the sureties consented to indemnify persons injured thereby. He did not receive any money in his official capacity.”
Volume 66, Corpus Juris Secundum, section 12, page 630: “The general rule as to liability has been said to be that, before a notary and his surety can be held, it is necessary to determine whether the act done or not done, committed or omitted, was or was not authorized by law, was or was not *698incumbent on Mm, was or was not required of Mm, whether he was directed to do it, whether he has failed to discharge the duty, and whether injury has been sustained. . . . The obligation of the sureties on the bond is to be strictly construed. The bond does not cover acts or omissions which are not a part of the notary’s official duty, and in which he is merely the agent of the party employing him, or acts only in his individual and private capacity.”
It was not part of the right or duty of Dowdy to take his own acknowledgment and had he attempted or purported to do so his act would have been void. But he did no such thing. He forged an acknowledgment purporting to have been made by a notary named Johnson. He used a seal which did not bear any notary’s name. In no sense did he act in performance of an official duty or under color of his office. The same forged acknowledgment, fortified by a blank seal, could have been made by anyone who never possessed a notary’s commission, and it could have been equally effective in consummating the fraud.
Dowdy has suffered judgment against himself in the sum of $9,981.09. The sole question before us is whether his surety is also liable, and that turns upon the question of whether Dowdy’s forgery and fraud were “official misconduct” or failure to faithfully perform “official duties required of him by law.” I think not. In my opinion the judgment should be affirmed.
Respondent’s petition for a hearing by the Supreme Court was denied January 18, 1961.