Full text of Rand McNally Bankers Directory : January 1894 : Banking and Commercial Laws

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BA NI ~IN G AN D 00 11 ME RO IA L LA WS .
COM PILE D EXP RE SLY FOR THE BAN KER S' DIR ECT OR"'To
l law
ck:::,ignated place of payme nt, are govern ed u} t:1c c1> 11 111crcia
grace
of
days
rrhree
notice.
and
.
protest
a' to day' or grnc ~.
..c o
allowe d on comme rcial paper. --..race allowe d on sight bill . nonfor
t
prote'
on
es
Damag
.
accept ance valid unles in writina
accept ance or non-pa yment 5 per cent. This covers all charge s
except interes t.
BANK ING LAW.
Colla tei-al s. All person s engage d in the bu iness of makin g
of any
.)
omery
discou nt or lendin g money are requir ed, on receip t by them er,
(Revis ed by D. T. BLAKE Y, Attorn ey at Law, Montg
his
borrow
e
h
t
by
ded
deman
if
collate ral for a loan or discou nt,
desshall
t
of
receip
banks
aid
of
which
lunent
t;
cslabli
receip
a
the
give
for
to
law
y,
of
agent or attorne
There is no provi ion
t he collate ral so held, the amoun t and charac ter of the
ignate
i ue in tbi tate. Banks of discou nt and deposi t may bee tabable
up
wound
b
t
mu
but
laws,
oration
debt. and the time when due. and if the same be negoti
lished nnder tbe genera l incorp
t;
receip
tare
said
in
n
iutere
&iv
ng
be
claimi
also
not
shall
f
tors
thereo
r
Deposi
numbe
y.,ars.
series
the
twenty
of
bonds,
at the end
g
lendin
or
ounts
C
'
a.i
g
makin
o
ency.
,
and if any corpor ation or pereon
preferr ed credito rs in ca ·e of im,olv
as
ent
Any
1.
ledgm
t:
acknow
deposi
and
such
nt
give
to
discou
of
refuse
banks
or
for
fail
ly
ions
vi
money , willful
Statut orypro
title to
associa te
abo--re provid ed, 'nch corpor ation or person shall haYe non egotia
.mmbe r of per ons (not le s than three stockh older ) may di
er
count;
wheth
ies,
and
t
securit
deposi
or
of
ty
bank
proper
a
al
tablish
Person
e
said collate rale.
themse lves tog t her to
in
may,
y,
less
not
securit
ral
ble or not, pledge d or depo Hed a collate
their capital stock to be not le"$ than $50,000 , of which
n,
y
t of payme nt, be old by the credito r at public auctio or
de.faul
than 20 per c nt., and m no ca e lei;:s than $25,000, must be actuall
ation
Credit
declar
the
usual.
of
are
filing
the
outcry
before
public
at
tock
for
saletl
ers
which
ubscrib
at
at place
paid by the
in
give to pledgo r written notice of hi intenti on to ell,
must
of incorp oration . 2. nch person s mu t make a declar ation
ocia.
.
as
the
of
name
Th
(a)
forth,
setting
and of time and place of sale, two day before ale, and must
writing under oath,
capital
adYert ise ale for five ctay in newsp aper publi hed in county
tion; (b) place of busine ss; (c) the numbe r of shares of olders,
lawful
where it is to be made. Amou nt of debt and actual and
stock, and total amoun t; (d) names and residen ces of stor.kh
ee;
ines
assign
bu
his
the
or
r
wheu
pledao
time
to
(e)
paid
e
each;
balanc
by
ds,
held
procee
of
shares
of
out
r
taken
numbe
costs
and
upon
ee,
declara
assign
Which
his
3.
or
r
end.
to
pledgo
to
and
e
upon fnilnre to pay such balanc
of the associa tion is to comm ence
where the
liable for
tion must be recorcl ed in the Probat e Court of the county incorp
deman d after r eceivin g procee ds of ale, peron selling days
orapayof
ion
thirty
each
eclarat
d
for
bank is establi shed. 4. A tramcr ipt of the
intere st thereo n at rate of five per cent.
t
who
withou
State,
hed
of
bli
pu
cretary
be
S
to
the
not
r
of
pledgo
office
of
the
in
Name
tion must also be filed
ment is o withhe ld .
A stock t. P arties may make such othei: contra cts as they may
consen
Issues to the incorp orators a certi.flcate of incorp oration . 5.exte11
his
t of
tate.
holder is liable for th e debts of tbe bank only to the
see fit for the sale of pledge s, not in conflic t ,vith laws of the Sother
auy
to
y
t
proper
ledged
p
r
transfe
or
ign
as
not
stock.
unpaid
Pledge e can
for
By a recent statute it i nrnck nn offen . . c punish able by fine
pledgo r or hi' a signee , except with origina l debt. Violat ion
than
·when
ts
deposi
receiYe
to
kind,
any
of
bank
a
of
.any bank, or officer
of this provis ion operat e a discha rge of the pledge , and reinsta tethe bank or per~on doing such bankin ~ busine ss i. iu a failing or
ment of pledgo r's origina l owner ship thereo f, but does not affect
debt,
insolv ent condit ion.
debt. Pledge d proper ty may be o signed with origin al
than
by
rate
r
Id
h
greate
ralR
a
at
Collate
uote
e.
or
bill
a
pledge
al
count
origin
di
of
who
r
right
banke
taking
Any
a.s ignee
the
to
a
on,
ti
except
inspec
to
ame
open
of
i
ion
that
collect
per cent. can not nforce the
pawnb roker must be entere d in o book
.
princip al, and if any iuteres t ha· been paid it must be deduct ed
and can b ._old only at public auction after fiv e day 'adver ti ement
or
ent
equipm
d
railroa
from the princip al.
Cont1 ·ac t s for condit ional ale or lease of
the
rolling stock, by which tbe vendor or le or retains the title ofgiven
being
sion
posses
made.
is
full
in
ut
payme
until
d
sol
ty
proper
and
to the ven dee or lessee, are void againe-t judgm ent credito rss like
month
three
within
ed
record
unless
notice
t
purcha ers withou
COl\IME R CIAL LAW.
convey ances of real estate and ha ve the same privile ges fo r the pur-poses of eviden ce and notice as convey ances of land. E ach locomo
of the
Ackn owled gmen ts and proof of convey ance may be taken,
tive, engine or car so sold or leased must have the name
Clerks
a to
so
n,
by JL1dge of the uprem e and Circui t Conrts and thei r Court
thereo
d
marke
vendor or le sor plainly and perr.1a nent]y
for
ct
Chanc elors, and Regi ters in Chanc ery. Judge of Probat e may be,
Coutra
reof.
th
hip
owners
the
e
dicat
readily and clearly in
ion
condit
a
Justic es of the Peac , and Notari e . ln other tates they s of an v
with
made
be
may
ty
proper
onal
per
other
of
t-ale
the
recoo-taken by Judges and Clerk' of any Federa l Conrt, Judge ted by
that the -vendor retain tbe legal title until paid fo r, and nre cts
appoin
rs
"Sione
mi
Com
,nd
H
Public
.
.
otarie
N
,
record
f or
of
court
Contra
ed.
record
not
gh
althou
valid
a
court
nized by the
by the
longer
not
the Gover nor of this tate. If out of the United tate , of
for
leac:e
the ale of land, or any interes t tl.terein , e:s:cept
any
ot· to
Judge of any court of record , :Mayor or Chief l\lagis trate
than on year, or contracti;: not to be perform ed in a year,
atic
Diplom
any
or
.
rriage,
ma
of
city, town, boroug h or connty , Notan e Public
eration
consid
upon
or
r,
anothe
of
debt
the
for
r
answe
or Consu lar or Comm ercial Agent of the United States. sign ment
are void unles in writing , subscr ibed by the party to be charge d.
a
l
genera
Every
.
ncy
olve
In
and
ts
nmen
Assig
Corpo ration s. Every compa ny. corpor ation. or associu tion,
ly all
ng
made by a debtor , or a con,,ey ance by ad btor of ub tantial
n ot organi zed under the laws of Alabam a, shall, before engaai
nce
of
:Y
of his proper ty in payme nt of a prior debt, by which a prefere
ecreta1
the
of
office
th
in
e
fil
tate,
in any bu ines in thi
g
writin
in
or priorit y of payme nt i given to one or more credito rs , shall en.me
t
trumen
in
an
ry
m
o
1\Iontg
in
apitol,
the
at
State,
shall not
ana
tion,
to the benefi t of all the credito rs equall y, but this section
associa
or
tion,
orpora
under the seal of such rompa ny,
a ting
apply to mortg ages given to ecure a deb t contra cted contem porane
signed officially by the presid ent and ._ecrern ry thereo f. de:-ign
a
by
ts
gnmen
assi
All
ge.
author
an
ously witlJ tbe exec ution of the mortga
and
State,
i
th
in
~
bnsine
of
place
known
one
least
at
any
in
d
debtor made with intent to binder , delay, or defrau d credito rs, are
engage
i~
ation
corpor
such
If
ized agent residin g thereat .
of
void.
busine ss of ir. urance , tbe statem eu t must he filed in the oftice
debt,
a
of
ion
collect
the
for
filed.
be
Attac hm ent proce s will issne
must
paper
new
the Audito r. If t he agent ii::, change d, a
ct, or
wheth er dne or not, to recoYe r damag es for breach of contra
Id not to ;:q )ply to corpor ations selling goods by rrav 1111g ao-entn
H
r
credito
the
by
it
where the action is for damag es alone, upon affidav
. The la t Leo·iRlntnrc pa sed a law requ iring all fo/eiosample
or
, or
or hi agent of the amoun t dne and that the debtor ab cond
corpor ation doing buBines in thi::l tate to pay liceu e fe s rauo-i~o
not
act'
conti'."'
reside ont of the tate, or secrete himsel f so tl1at proce can
nll
ing
declar
aud
apital,
to
ing
accord
from 25 to :25t1,
or has
be serv d upon him, or i ahout to remov e out of the tate,ulently
madt aft r July 1, 1 3, by any corpor ation that lrn not paid uch
fraud
or
ty,
proper
bis
of
pose
di
or i about to fraudn l ntly
licene , nbsoln tely ,oid.
ted
withho ld money , chatte l or effects which are liable to the eatis-t
Court s . Tenn~ and Ju1•f.sdiction. ircuit ourts have unlimiJanamoun
the
double
in
bond
libel,
faction of hi~ cleht~; plainti ff must give
of
diction
commo n law jnnsdi ction and xclusiv e juri
in
claime d. Garnis hment proce will iBRne in aid of attach ment
der, assaul t and battery , and ejectmt>nt. The Courts of Chanc ery
bond.
g
givin
by
twice
all uch ca e -. Carnis h ment may be d i ~olyed
have exclu ive equity Jurisdi ction. Regula r terms of both equity
full
e
Act , 1 91. p. 590
hav
Courts
a year in nearly every county . Chanc ery
and
Bills of Ladin °·. Falee bill' of lading and receip ts are forbidpower s, and the City onrt,_ of Iontgo mery. Birmin gham Proother
or
naer,
wharfi
.
den. No wareho usema n, commo n cnrri r, or
Courts
ircuit
the
"ith
diction
juri
rent
concur
Mobile have
ing for
but
per on engage d in the bu inesR of storao-e, carri ag . orkeepany
bate ourts hold term on . . 'cond :Monday of ach month have
bill
issue
shall
ty
proper
or
thing
<Y
din
ronrar
shipm ent, or of
Peace
the
of
s
Jwtice
.
nudays
cou rt always open except
of lading or docum ent for any proper ty, by wbich it hall appear
ction of all ci vil ausesw h re the amoun t in contro versy does
junsdi
ed
deliver
or
el
ve1,
any
on
d
shippe
ult
that such prop rty ha been
not exceed $100 in value, except in ca es of libel, lau der, a 'sa
red; p roindiat any rail road wareh ouse, unle s same actuall y delive
and
ff
plainti
partie
all
of
ames
ent.
and battery , and ejectm
vided, railroa d may, in certain ca es, i ue bill of lading upon
name of co-par tners mu t be giYen in writs. Partne rship may
vidual
e"of
deliv ry of cotton to compr ess.
be uedin courts oflaw infirm name, witho utsett ingior thnampartHilb of Exch ange. Promi sory note payabl in money at a
the
of
one
any
pon
u
d
serv
be
ay
co-par tners. The writ m
Any
bank or priYat e bankin g ilo11 e or a rrtain place of payme nt thereners; the judgm ent rea be the partnership proper ty a1one. alone
omthe
by
ed
goYern
ar
ge
i11 de' ignat <l, ancl bill of exchan
sued
be
may
one partne r, or hi per onal repre eutati\ 'e,
rnercia.l law. A ll oth er in ' trnrn nt payabl e at n bauk, or other
Original from
567

ALA BA1 IA.

UNIVERSITY OF WASHINGTON

56

BANK! G A D COl\1nIERCLA.L LAW -ALABA1'1A.

on a partnership obligation. on-residents must give security for
co ts when suit is com10enced or within such time thereafter as the
court may direct. :Money may be deposited with the Clerk instead
of sureties.
Days of Grace. All commercial paper i entitled to grace. If
the la t day of grace fall on a holiday the paper i due the next day.
Holid ays are unday , hristmas day, 1 t January, 22d February,
26th April, 4th July, Thank giYing · day, Good Friday, and l\1ardi
Gras.
Depositions. Jn casee at law depositions may be taken of
witnesse who can not be preeent at the trial in the following case :
When the witness i a female; when the witness is too sick to attend court; when the witn ess resides more than 100 miles from the
place of trial or is absent from the State; when the witness is abo_ut
to leave the State and not return in time for the trial; when the witness i the ole witness of the facts; when the witness is one of the
officers designated in Code§ 2, 01. Affidavit must be made of one
of the above facts, and of the materiality of the witne s. May be
taken on interrogations or oral examination. l\Iust in either case
be by commis ioner appointed by the court for that purpose. All
evidence in chancery 1s by depo~ition upon interrogations filed in
the court, and taken by coromissiouer und er a commission issued
by the court. The commissioner may be any suitable person, need
not be an officer.
Exemptions. The homestead not exceeding 160 acres in area,
and not exceeding $2,000 in value. or, in a city, town or village,
the lot with dwelling, etc., not exceeding $2,000 in value, owned and
occupied by any resident. Exemption of homestead may be
waived, but wife must join in the waiver and it must be acknowledged. Any person may, by stipulation in writing, waive whole or
any specific part of exemption of personalty, without the consent
of wife. Personal property to value of $1,000 selected by debtor,
and wages to $25 per month, are also exempt. Widow's exemption
includes aleo wearing apparel, family books and pictures, and provisions for twelve months.
Executions. Writ of fl.fa. is a lien only within the county in
which it is received by the officer, on lands and personalty of defendant subject to levy and sale, from the time only that the writ
is received by such officer and continues as long as writ is regularly
delivered to the Sheriff without the lapse of an entire term. A
statement of a judgment certified by the Clerk of the Court may
be :filed in the office of the Judge of Probate, which makes the
judgment a lien within the county in which it is :filed for ten years
thereafter. Execution may be issued on such judgment at any
time. Acts, 1891, p. 3 fl. No stay of execution in Circuit Court except by appeal, and supersedeas bond which delays collection until
aflirmance by Supreme Court, and entails ten per cent. damages.
with legal interest and costs. In Justice's Courts stay is granted
on good security; below $20, thirty days; over $20, sixty days.
Fraud. Obtaining money or goods on credit under false color
or pretense of carrying on business, or under false representation of
pecuniary condition, with intent to defraud, or bringing into the
State money or goods so obtained, punished as larceny.
Garnishment may issue in any case after suit commenced
upon affidavit of necessity and bond as in attachment cases.
Insolvency. There are no insolvent laws in this State. Estates
of dead men may be declared insolvent and the creditors paid prorata. Claims against such eEtates must be filed within nine months
after adjudication of insolvency, verified by affidavit.
Interest. Legal rate is eight per cent., and same is allowed on all
open accounts, judgments and decrees. Usury forfeits all interest.
Judgments of courts of record are proved by a certified transcript. Cases stand for trial at first term of Circuit Court, if summons executed twenty days previous to first day. Judgment not a
lien. Execution received by Sheriff during life of defendant may
be levied after his decease, or alias execution issued and levied if
there bas not been lap~e of entire term so as to destroy lien originally created. Above applies to executions from Circuit and Chancery Courts. An execution issued hy a J-ustice of the Peace is a
lien only from time of its levy. In Justice's Courts cases stand
for trial after three days' notice.
Lien for Rent. Landlords of storehouses, dwelling houses and
other buildings, have a lien for rent on such goods, furniture and
fixtures therem as may belong to the tenant, superior to all other
liens, except for taxes.
Limitations. N ates and stated accounts, six years; open accounts, three years; sealed instruments, real actions and motions
again t officers, ten years; judgments, twenty years; actions on
the case, one year. Bar created by statute can only be removed by a partial payment, made on the contract before
the bar i complete, or by an unconditional promise in writing.
Tho ·e under legal di ability have three yearEl after its removal in
which to begin ~uit; but no action can be commenced after
twenty year'.
tatutes of limitation apply to married women's
s parate e tate . Action' founded on a promise in writing not under
seal or for tre pa._ to person or property, must be brought
within six year .
tRtutes of limitation are made applicable to
equitable as w 11 a legal demands, but do not run again t direct
truste.
Ma1-ried '\Vomen. The wife, if the husband be of sound mind
and ha1-< not abanc\oned her. or be not a non-re ident of the State,
or be not impriE<oned under a conviction for crime for a period exceeding two year , caunot alienate her lands, or any intereli!t there·
in, without the as ent and concurrence of' the husband, to be
manife ted by hi Joining in the alienation in the mode prescribed
by law for the execution of conveyances ~f land
.
But if the huElband be 1,on compos mentzs, or has abandoned bis
wife or i a uon-re ident of thf' tate, or is imprisoued under a convicti~:m for crime for a period exceeding two years, the wife may
alienate her land as if be were sole. But the personal property
ryJ. the wife, or any part thereof, may be old, excha!)ged, or oth1 rwise conveyed or disposed of by the hn band and wife, by parol or
otberwi e. If the nusbancl is living apart from the wife, witbont
fault upon her part, or if he be of unsound mmd, t~c wife may convey or di po of uch property many manner a 1f she were sole.
The bu band and wife may contract with each other, but all contracts into which they enter are ubiect 10 the rules of law a to
contracts by and between person tanding in confidential relations;

but the wife shall not, directly or indirectly, become the surety for
her husband.
All prn:Jerty of the wife he!d by her previou ~o the _marriage, or
to which she may become entitled after the marnage, m any manner, is the separate property of the wife and i not subject to the
liabilities of the husband.
The earnings of the wife are her separate property· bnt she is not
entitled to compensation for services rendered to or for the husband,
or to or for the family,
The wife has full legal capacity to contract in writing a if he
were sole with the assent or concurrence of the husband expressed in writing.
The wife must sue alone at law or equity, upon all contracts made
by or with her, or for the recovery of her separate property, or for
injuries to such property, or for its rents, income or profits, or fo:r
all injuries to her person or reputati on; and upon all contracts
made by her, or engagements into which she enters, and for all
torts committed by her, she must be sued as if she ·were ale.
The wife may, with the consent of the husband, expres ed in
writing, and filed and recorded in the office of the Judge of Probate
of the county of their residence and of the county in which the
business is carried on, enter into and pursue any lawful trade or
business, as if she were sole. But tbe consent of the bus band is
not necessary, if he be of unsound mind, or has abandoned hi wife,
or is a non-resident of tbe State, or is imprisoned under a conviction for crime.
All property of the wife, whether acquired by descent or inheritance, or gift, devise or bequest, or by contract or conveyance, or
by gift from, or contract with the husband, is the separate property
of the wife within the meaning of this article, saving and excepting only such propei ty as may be conveyed to an active trustee for
her benefit.
Married ·woman under twcnty-011e years of age may convey her
dower interest in land, if over eighteen year of age.
Marriage of women under twenty-one but over eighteen years of
age relieves her of the disabilities of non-age.
Mortgages are executed and acknowledged in the same manner
as deeds. May be foreclos ed by bill in equity, or, if there be a provision to that effect, by sale under power, upon such default as
authorizes a sale. Two years are allo\ved for redemption in
either case. All mortgages are void against creditors or purchasers without notice, un1ess recorded. Homestead realty can
not be mortgaged or otherwise aliened without ~ignature and aseent
of wife, evidenced by acknowledgment, upon private examination
separate and apart from. the husband, and certified. All mortgttges
must be in writing, signed by the mortgagor. Payment of mortgage debt, made before or after maturity of debt, 1evests in the
mortgagor, or his assigns, the title to the real or personal property
mortgaged, if made in the lifetime of the mortgagor; if made afte:r
his death, such payment revests title to personal property in the
personal representatiYe, and title to realty in the heirs, devisees or
legatees of the mortgagor.
Chattel mortgages must be in wntin o-.. When the mortgagor
is sued by the mortgagee for possei-sion of the mortgaged property
be may defend by shov,'ing payment of the debt, or part payment
and a tender of the balance, or may pay it after judgment.
Notes and Bills of Exchange. Promissory notes payable in
money at a bank or private banking house, or a certain place of
payment therein designated, and bills of exchange, are governed
by commercial law and are negotiable instruments. All other
instruments payable in money at a bank or private banking house,
or a certain place of payment therein designated, are governed by
the commercial law as to days of grace, protest and notice. All
bonds, contracts, and writings, for payment of mon ey or any
other thing, or the performance of any act or duty, are a signable
by indorsement so as to authorize an action thereon by each successive indorsee. Acceptances of bills of exchange must be in
writing, but an unconditional written promise to accept a bill before it is drawn is an actual acceptance, aHd any person upon
whom a bill is drawn and to whom the same is delivered for acceptance who refuses to return it within twenty-four hours after
such delivery, or within such other period as the holder may allow
to return the bill accepted or non-accepted, ie deemed to have
accepted it.
Protest. Indorsers of bills of exchange or notes payable in
money at a bauk or private banking house are charged by the general rules of commercial law. To charge the indorser of paper, not
commercial, suit must b e brought against the maker to fir t court.
Damages on l.Jills of exchange, whether foreign or inland, protested
for non-acceptance or non-payment, are five per cent. on the sum
drawn for. But the bolder may recover costs of prote t incurred
previous to and at the time of giving notice of non payment and
legal interest upon the aggregate amount of the principal sum
specified in such bill and of the damage thereon.
Suits . Every action, except upon bill of exchange, negotiable
instruments, etc., as above, founded 0n expre ·s or implied contract
for the payment of money, mu t be brought in the name of the person really interested, whetl1er he have the legal tHle or not. [ ee
Uourts.] Security for costs of suit i required of 1.1on-residents of
the State, and may be given by acknowledgment igned by
security, indorsed on the complaint or writ, approved by the
officer issuing the same; or by deposit of money with Clerk of
Court in which suit is brought, the amount to be determh1ed by
the Court or officer taking the security, and ~ame to be increas d
from time to time as necessary to cover co tt1. Upon failure to
give euch security required by the ourt, upon motion th( refor,
suit dismissed at cost of the attorney directing proce to be ii-sued.
Taxes become delinquent on the 31 t of DeMmber of the vear
for which they were leviNI, and the lands may be iso]d b y ce1:tain
proceedings in the Probate Court commenced in tile month of
March followmg. The purchaser of lands sold for cl liuquent
iaxe receives from the Collector a certificate of pnrchai:-e containing a description of the property, the date and amonnt of
as es ment, taxes, co ts, fees, etc., wbicb after the expiration of
two year from the date of the eale i xchangeable for a deed
from the Probate Judge- which is prima facif' evidence of titl e.
Land o]d for taxes may be redeemed "ithin two year by th e owner, mortgagee or ally pn.,on havir g a beueficin1 intereElt therein. by
depo iting with tile Probate Jncrge of the county in ·which tl1
land were sold, the amount of purchase money, with iutPn·st at
fifteen per cent. per .ammrn ,fand all taxes which h:n e accrued
ungina 1 ram

UNIVERSITY OF WASHINGTON

BANKI NG A D

O~i~IER IAL L

sub equent to the ale, anc1 interest thereon a t eight per cent. per
annum· al o all co t and charge . Whenever land i i:iold for State
or countv taxes, and from any can,e euch sale i invalid to puss
title to 1inrcha er, sale op rat s a trun fer to purcha er of lien of
"'tnt or on nty, or tbe property for payment of taxe for w_hich ~~ld.
,vn1s. All wi\lR of real or pn::;onnl prop rty n111 i:-t be m wntrng
signc<l by the t 'tator in pr •::;encl' of two witue~c:t' ·. Unwritten
\\ill of PL'r~ounl proJPrty Ynlid rrnly ,Yh u th_' prop rt_v c10L' not c~ccccl $500 iu vnlm', n1 d rnnRt be rnn<l dnnng last icku t-<S nt 111'
homr. P rson ' J>re'rnL must bl' called on to ,\-itnesR that it i testator'' will and mu .. t b,' redncrc1 to writing by one of the witnesse
within six c1ayR. M.inor ovl'r eighteen may ma
a will of person_al
property. :N"o will etfr ti v' nu til probated. ~I ay be c n estec.l rn
Probate or Chancery Comt.
1

ARIZO NA.
BANKIN G LAW.
(R •vised by HERNDON & XoRRis, Attorneys at Law, Pre cott.)

The Territorial Auditor is L'x-officio bnnk comptrolle r. EYery
aYino-1'; hank. bunk, nml bnnkiug company incorpon1t ell nuder the
Jaws of th, Territory shall prucur' :t lice11t'e from tbe bank comptroller. At kast 011 ° e in ench year, antl as often :is the bank
comptrolle r may think necet-::;ary, he t-linll. w~thout pr~vi~)IIS 11otice,
require every sndngs bnuk, banl~l'r. or bankE1~ a::-t-ocrnt101~ or corporation to rq)Ort thl'ir condition. clnly venti1 ·d. to l'la1c1 b :1 nk
comptrvlle r. The bHnk comptrolle r, on or b,efore the 30th _c1~y < f
Jmll' in l'nch yet1L makes a rC'port to the (Tovl-'rnor co11tn1umg a
tabnlnred statement nncl i::_ynop ' is of tbe :-<ever1il reports which lrnve
been tiled in his otlicl' since bi1-- Inst report. 1111d he shall also report
any other vrocredi ngs lrnll or clo~w by him_ showing_tl 1e co;;diti_on of
the Sll\ings b 111k orbnnk111g bnsme~s nllcl interests m the Ierntory,
"hich report slrnll be verifie<l b_v bis affidavit
.
'I ne bnnk comptrolle r, or some com pet 'Lt e~pert appomt~d by
him. slrnll ou e in Pnch yenr or orrener, if deemed net,essar!·, ,ntbont
predo11s notice. visit all(l make a t'ul I e~nminati on of e11ch bank and
bankino· in--titntion 1 and inspect. all books, papert'. notes, boncl"',
cvitle1w'es of debt n nd all securities, a.11d a~ce1 tain the conctition
of eYery snch iustitntion and report its condition to th . attomey(Tenein I. Sucl1 bnnk comptrolle r or exp rt n~ ust e:s:_ann_ne _und~r
onth auy of the oflicers, agents, or ernmt, of -:uch lllStltnt1on rn
relation to its ntlair,; nnd such officer. agent or senant mui-t un ._ \Yer
the questions put to him ou oath orb gnilty _o_r ;1 mLde111e :111or.
The bank comptrolle r mu t report m writmcr to t hr attomeycrenernl the in::-oJ\·ency or unsafe condition of 11nr l'nch in ti tution,
~nd upon his ne~lect to do so Rhnll be guiltv of a felony.
No license slrnll b\! granted to an , ~aviug, bank 1mles ' at least
50 per c 'nt. or its loanA shl-ll_l ~e seen red b_y first mortg:1!le or oth r
prior lien upon real estate w1_1hm the Ternl~n·y; and "'uch loan at
the elate wh, n ma<le herentt r not f'XCeedmg 50 per cent. of the
market v11l11e of the secmitv, exceJJt when made for the p11rpo~e of
facilitatin~ the snle or JffOJJ!-'rty o,yned by the orporntion .
And it 8ha11 be uulawful for nny nYing~ or loan ociety or aviugs bank to pnrcha e, in, est: o~· loan _its c~1p_ital, or the mon~y. of
its depositors , or nny part of e11lwr, m mmmg share or mmmg
E>tock. Every such ::,avings bank haJ_l make to the comptrolle_ r not
lrss thnn three 1eports each year, venficd by onth of the presH1ent
or ca hier.
E\'ery 11vin~s bank, banker. or banking corporatio n sb~ll make
to the bnnk comptrolle r not les:s than three report dnnug each
year unc1er ,,ath. ' nch reports lwll show: First. The am_onnt vf
capital ._ t nck arn1 nu111ber of :-_hares;
e, and. Namrs of d1re~tor
and :-;hares held l)y each. Tlill'd. rotal amount actunlly paid 1_11
mOlll'Y by stockholc1 l" and tbe total amount of re L'rYe fund, 1f
any. · Fo·11rtll. The total amount clne to depositors . F~(th. The
tofol amount and clrnrarter of nll lLtbilitie ". CY',1'/h. Tbe Ynlne of
its re·il t'stnt t'. Stre11tl1. 'I'bc a monnt lo'.lllt-"d_ on real e_state.
Eighth. The amonnt innstL'<l in bond ~. deswnatm g the pt1rt1cular
clu· s anc1 nmonnt. 1ViJ1tll. The nrnonnt lomwd on storks nnd
bonds. Tenth. The amount loaned on otller cur i ti s. Elecenth.
'rbe n tun! amount of money on han<1 or deposite<} ,1n lJHY other
bnnk or place. and thP arno1rnt i11 l'ncb place.
'/_ Wl(f~h. Any
prop"rt" helcl or nm· amount or money loueed. depos1 ted mYested,
or placed not otherwL mun rate_<1.
. .
.
Even' bnnk, hank r, or ba11k111g n sncwt1on. <':S:Cep_t ._avrngs
bank<cnrr yil1g on b11sincs under this act. sbnll at all time haYe
on h:1ncl nn nmonnt <'qua\ to at 1 'nst 15 pPr entnm I f the_ aggregate
nmmmt of it::- depm-it ' . and nt any s11m or amounts owmg on account of boiTO Wl'CI money . Pail urt> tn do ._ authorizes the bank
comptroll er rn clerl,n·e sn.i'd bank t0 be insolYent.
'I'hr bnnk cnmptrollP r ~hnll m<1k a gen~rnl report of tbe bn ... inrs
of his offic' to tbe 1l'Qi:--btt1rl' at each ::,~:::sllm.
The bank corn pt rolkr nUL)' issue An bp_cenas for ":itne.:SC' t~ ntteml
and tc~tify b ·for him in any e.xnmi1rn11011 nnthonzed by th1 ' act.
COMMER CIAL LAW.
A cknowle dinnent of instrnmen t ror record may he made
without the 'Territory, but wi.tllin the n!ted tate~ or Territ?ries ,
before Clerk or ome ourt ot Record baY111g a seal, Comm1s. 10ner
of n eds for Arizona, Nota1y Pnhlic: witbont the U~ired tateR,
before a Mini 'ter. Commi1< ion r. or Clrn, ge d'Affaue , Con 111General, Con 111, Vice-Con:s ul, Commerci al Agent, Vice Com1~1 rciul Acrent, D puty_-Cons nl,
r
on n lar Agent of the Umted
tatcs, otary l-'nbllc.
Affld:.-uri s. ,,rhenev r any oath or a:ffidaYit is or may he rrquired or authorized by any ln~v of thi' ~crrjt ry, tbe ~a1~1e may b
tak<•JJ in mn other 'tate. Terntor:. or D1 Rtr1ct of the mted tnt~
l)r,f01 e m1y ,foci!! or ommis8i01 1er of a 'ourt or Record, , 1 nster 111
( ' Jianc · n ·.
otar:v P11blir nnthoriz<'d by th law of such 't atc,
'J' •rritor)'. or Di,tricL to admini t"r nth .

~

-ARIZO A.

Arrest in civil ca e abolished.
Attachm e nt will is ue in th e action upon a contract, expre~s

or implied, for the direct payment of mc;nwy, wbe1P the contract ismade or is payable in thi Territory, and 1s not secured by any mor~gag or lieu upon real or personal property, or any pledge of peronal prop rty, :ind mu t be on bond in amount . qnal to debt
sued for, and affidavit of plaintiff that d fcndant is mdeb~ed t
plaintiff. and the n mou u t of. t~e clemanct; tba t attachm~n t ~s not
1-ought for wrongful or mallc10us purpo~e, and the action 1s n~t
pro ecnted to bind r or delay ~n:, creditor of d~fenda~t .
davi t mnst E-tate fnrrb er tha t debt 1s due. A 110n-re@1dent or fore1,,,n
corporatio n may al o be attnch d upon any indebtedn ess due.
Chattel 1'1ortg-ag es, to be valid a to c~·editors _and a . to purcha ers without notice, must be accomparn ed by nnmedia_te delivery, followed by actnal nnct contmuecl change of _pol'ResE~on of
property, nnles!:'\ tt:ic arne or a true t·opy tht'n·of 1~ ~led _rn th
County Recorder' office of connty wbere property ts 1mnted
and in county of re._ideuce of mortgagor . )lortga2:c ~ anrl cteeds of
trn t :.-hall be forccln._ccl in th District Court unless po,Y r of sale
L gin~11 expressly in the instrnm nt. In sucb ca~c sale 111ay ~e h~d
accordilw to the terms of nch instrnmen t. Judgment creditor m
foreclosn~· e ha , power to redeem in six month~ after ale.

A:~-

Claim a.,..ainst E tates of Decea1oe d Persons. The
executor or administra tor, immediate ly after bis appointme nt._mustcnu~e to b , pnbli--hcd in som, 1 e"·spaper of the ,ounty _a notice to
the Cl'l' •iturs oft he d ced nt requiring nll pel'!3on::: hant,g clntm ~
agnin t dccnl<>nt 10 exhibi1 th Ill, with the nece~s1:1~·y :ouchers. to
the executor or aLlndnh:,tr ntor. nr tbe place a11tl \YJthrn the t1roe
mentioned in the nntit-e. The tiuw exprcs~ed in the notice nrnst 1:e
ten month~ from its fir-:t pnbliC'atio n, w hen thl' cs tat c exceeds m
Yalne $3.000, and f01ir months ,Yhen it is less than that .. nm. EYeIT
claim when prc:--ented to the ndrninil-ltr ntor for allowanc~ nn::::t be
i-npported by the atlidnvit of the clainrnnt. or some one lll h1R behalf. thnt thl' amount is jnstly due that no payments bnYe l:een
made thereon \\·hich are not c1editcd, nml 1lrnt there are 110 off:::et'
to the same to the knowledge of affinnt. lf 1h , claim be !10t due
when prl'scnt<'d. or be cnnt111gen t, the pnrticnln.1 s of encb clann mnst
bes atetl "\fhen the nftidavir il'l made b_v a l er:--011 other t~1a_n the
claimant he mu::;t ' ct forth in tile nffidadt the I enso11s ,Yby 1t 1s _not
made by the claimant. The oath may be taken b• fore any oiticer
authori;;i;ed to admini ter oath'
Corporat io11s. -Any nu_mber or 11ersnns ma)' assoc~a t e themselYe together and become mcorporat ell for the transaction of _any
business nnd ._hall have powe1: ~1.) To lrnYP perpetual successl()n .
(~-) To sue nrnl be sn 'd by the corporate name. (3. ) To baY~ a
commons 1:11 nnc1 alkr tbe sanw at pleasure. (4.) To render themtere8t of 8tockholde rs trnn " frrnble n11d prescribe tbe mode of making s11ch tnrnR'er8. (3.) To exempt the pri nit property of members
from the Ji bilitY for rorporate debts. (6.) 'fo make contracts,
acqnire and tnrnsler propt'rty. (,.) To cstahlish _by-la,~· ~, to make
rnks and rccrnlntion s for the mm1agrme nt of th Jr affau . Before
comrneuc in; any bu sine :- : < except that of their own organizati on?
they mn-:t ,id opt articles of incorporat ion " ·hich ._ hall be sign d find
11cknowkd gecl bv them, nnd. be re orded in the office of tbe oun ty
Recorder of th County where the principal place of bu ..:ine~ i to
be. Th nrt1cle ot incorpornt ion must contain: (1.) 'l'b name of
corporntor ' . the name of corporatio n. and its principa! plac of
transactin g bn~inc::<s. (2. \ The general nature o f the bus mes proposed to be trausnctet1 . t::3.) 1_'l)e amount o f ~api~al_sto ck antbo.nz_ed
and the time ' when and cond1t1011~ upon \\·Juell 1t 1s to be pmd m.
(4.) The time of the commence ment and terrninat ion of the corp_oration. (6.) B,, what oiticer.., or persons the affairs of the corporatio n
are to be comlncted , and the I im Rat whicl1 they- are to be elt ted.
(6.) The highest arnon11t of indeb:ec1n es ' or liability to " ·hi h_ the
corporatioi i. is at m1y time to subject itself. ,,.) \Yh ether pnn1t
propert)' is to be exempt from corporate debts. Unles ? exempted
tockholde1 s I re liahk for th e df'bt~ of the corporatio n m the proportion ,Yhich t h eir .. tock benrs to the \\·hole capitul tock ';['he.
must also pnbli ' h for nt len~ t ' i:s: days in som uew,;paper pubhsh d
in tlw connty wh ere the principal bn 'iness is 1 cated, or w_ork'
estnhli ' bed, if there b, 01w, if not then in some ne\\·Rpaper hanng a
ge11eral circulation in said county . a copy of t h artic:leR of incorpora1ioo. Tbe corporatio n rnny comm nee bni-ineu, HR soon a.:: the
11rticks arc tiled for record in the oitice of tbe County Rer·order.
orporn ti011s for tlle constrnc1 ion of an)' work of internal irnproYement mav be formed to endure for fifty ycn1 s; tho"c formed for
other pm:, Ot-CS slrnll not exc ed twenty-fiy e year~ in duration: l~ut
in eirher case they nrny be reneweu from time to time for n p nod
not greater tt an wn :lt first Pl'rmil'lsihl e wh e•, three-four tus of th
Yotes, ast at uny regular election for that purpose shall be in favor
of 1:<uch renew11l. 'l'ransf 'r of tock: shall not be Yalid except a between the parties tlwrcto un til regularly en· red npon the books of
the company. Ct1rporatio ns slrnll c ease to 'xist by 11011-u~er of its
franchise for fl.ye ycnr at any one time.
Corpora tiou (Foreign). 4.\ny ornpany incorporatC 'd under
th la" of any otber State or Tnritory. for any ellterprise, bnsine"',
pnrsuit, or occupation propoE'ed to be canied on, o,· the principal
office or place of buE"incR~ is propOSL'd to b<-' loca·cd \\·ithin this T erritorv. Rhall make and tile CL'rtified an 1 duly auth, nti ared copies of
their ar, iclcR of incorporat ion wi th th e Sec1 etary of thi Territor)'
nnd the oun ·· v Recorder of t lll' Conntv in whi ch i t s husines or
µri11cipal oitic i:-- located. It ::--lrnll be th ·autv of any a~ ochtion.
compa11y, or corporatio n orgal'.i;;i;ed or incorpnra• cd under ti e ]av, i:i
of any other R· ate or T erritory, or foreign country, for the µnrpost s
of ngn2:in~· in 01· c:1rryi110· on any enterprise . busin ~1:<. pm"uit, c r
occupati n, or acquii in_g. bolclin!:!, or nispo:::ing of any pro1)ertv
within tbi::, T erri ton, to file\\ ir lt the Rccretnry oft hi8 Tei riton mid
the Connr), H,1 corrl<:r o1 tlle Count)' in whic·b· su b enterp1i-e,"1nH•i1H.' , ~, pur--nit, (Ir oc upntion i:- prop secl to be 11 ,cnted, or i, located,
th lawful appoint rnent of an n2/·11t. npon wbom all 1101 ices and
proccsA-'s, incl11ding t·nice of snmmons. may lw ' en·ed. an d ,Yhn1
._o ,cn·ect shall be deem cl t11ken and held to be a lawful per~nnal
srrdce on ·uch a~"" iation, c mpany, or corµorntio n for nll p111posr whnt,oe, l'r.
o corpnrn tion nch ns is nwntionC'Cl in ec, ion
1 of thi. chapter slrn11 transact any bnsinP::-s whn1soeYP r in tliit- 'Ier1 it ory uotil and un le,s it ~ball ha.Ye fin,t fih•tl its ar1 icle' < f in cot•
porntion and appointme nt of an a g<:-nt n requi1 c<.l in tb two pn'Cl'cling i:iecti on s, and \' ry act clone by it plior to tlw filing thl'ret,f
shnll he utt rly YOid 'l'he ap1 ointmeut of ._ urh ag nt lrnll h' l'mb()(1iu1 in n rl'solutionciJr~~Yniaql~h'l<1 t y ts11ch < ompnny, nnd t-hnll \l"
0

4

UNIVERSITY OF WASHINGTON

570
igned by the Pn ~ dent, Mnnao-er, or Secre· an- thereo f. All "ucb
agent~ 1:,hall be bona fide re""idents of the coun.ty in which their appointme nts hall be filed, a nd the full n ame and re idenc of each
agent shall be tated in the r e olntion appointi ng him.
n ays o f Grace . Thre day" of grace ,_,ball be allmYed on all bill
of excbang e or promis~o ry, as igna ble, or negoti!:l ble by law.
D epositio n . Depositi on of ·witnesse s may be taken in the following ca e : (1.) When the wit1Jes i ~ a female. (2) When by
reason of age, infirmity , ._ickne s, or official duty it is probable that
the \fitne will be unable to attend court. (:3. ) ,Yhen the witne
re ide with out the Territory or C,nmty in which the nit is pending,
or more than fifty miles from the place of trial. (..J.) "Then the witne,;"
ha left, or i about to leaYe, 1he Territo1y or Cou 11ty in ,\·hich the
suit i pending, and ffill 11ot probably be pre"ent ar tbe trial. (5.)
When tbe party de,::ires 10 p rpetnate tbe testimon y of the \\'itnes".
Either n:my wishillg to take the depositio n shall file " ·ith the Clerk
or Justice of the Peac , a the case may be, a notice of hi , inten t ion
to apply for a commis :on to take tbe answer of the witne"' to interrogaro rie auached to uch notice. The notice shall state the
name and re idence of the "itness, (Ir tLe 11lace " ·here he i to be
found, and the title of the suit: and a copy thereof, and of the attached interroga tories. shall be serYed upon the ad ver e par1y, or his
attorney , fiv days before the issuance of the commiss ion. ,Yhcre
the ,Ytitness re ' i 1e in the Couuty, the notice :1lone shall be giYen
without the interroga tories, and witness may be examine d orally.
The commiss ion shall be addresse d tot Lie followin g officers. either
of whom may execute and retnrn t he same: (1.) If tbe ,,·itness be
al!eged to reside or be ,Yithiu the Territory , to any C.lerk of the Di tnctCou rt, or imy Notary Public of the proper County. (:l.) If the
wimei:;i b e alleged to reside or be "'ithout tbe Territory , and within
the United States, to the Clerk of a Conrt of Record having a seal,
any Notary Public, or any Cornmis loner or Deeds duly appoin1e d
under the laws of this Territory . within some othe r Stat e or I erri tory.
(3.) Ir the \\'itness be alleged to reside or be " ·irhont 1be G'nited
State", to any Notary Public, 0r any l\linistcr , Commisi- lioner. or
Charge d'Affaire s of the United States, resident in ancl accredite d
to the con,11ry wllere the depo ition may be tc1ken. or any ConsnlGeneral. Con u], Vice Consul. Commer cial Agent. Yice-Cttr :.1mercia l
resiAgeut, Deputy Cnnsul, or Consular .Agent of the United States
1
dent in such country. Officer receiving such commis ion sha 1 have
power to subpama 1he ,dtnes to appear before him and auswer interrogato rieR at a time and place named, imd if the witness fails to
appear or refuses to answer such ofticer. uch officer shall bnYe vower
to fine and imprison him in like manuer as District Courts are empowered to do in like cases. 'l' he officer hall proceed to take 1be
an wer of the witness in \\'riting. and the ame shall be signed and
sworn to by the wituest:;. 'l'he officer shall certify that the ans,Yers of
the witness were signed. and sworn to before him, and shall seal them
up in an envelope , together with the commiss ion and interroga tories
and. cros interroga torie , if any, aud shall write his name ncros ' the
seal and indorse on the envelope the names of the pi-mies to the
snit, and of the witnes es, and shall direct the package to the Clerk
of tLe Court or Justice of thP Peace, as the cnse may be. 'l'be officer taking uch depositio n :--hall ha Ye authority to summon and wear
an iuterpre er, if necessary . Depositi ons may be retnmed to the
Court either by mail or by hancl. If sent by mail, th., Po trnaster or
hi deputy shall iuclorse thereon that he receiYed them from the
hands of the officer before whom they were triken. \nwneve r one
par, y may file interroga tories the opposite party may file cross interrogatorie s at any time before the commiss ion it:;snes, and " ·hen cro1interroga torie lrnxe been filed aucl answered , either party has a
right to use the depo ition on the trial.
Exemp tiu n !-', Every head of a family is entitled to hom estead
not exceedin g $4,000 in valne and $1,000 worth of personal property, to be selected. by himself.
Ho li day . L egal bolic1ay1:< are Jannary 1, February 22, ,1nl} 4.
Thanksg iving, May 30, Decem he r 271, every ::,nnday, and general
Territori al election day, or any ~pecial t'lectiou day that may he
.called by the Governo r. Any promisso ry note. hank cherk. bill of
exchang e, acceptan ce, or other 1wgotiab le instrnme1 1t, made payable
at any future perio<l. wb1<'h fall~ due on any of thes e day~ mention ed
shall bl· con:,;;ider, ·d due a11d collectib le 011 tbt-' clay followin g; and if
January l, Febnrnry :2~, July 4, Dt'C<·mber 25, or 1\i ay 30 sb~ll fall
upon ~un<lay, tbeu tbe l\louday fotlowiu g 1:,llall be consider ed
a legal holiday.
Insolve nt and .~ Si !ll llH'll Law !'i , A generRl a shrnrnen t by
in olveut debtor mu t be recorded , bave annexed an i11\'l'11tory .
under oath. of all creditors , their resi d ence, sum and consider ation
due each, how evidence d, with statemen t o f debtors' e11tirt' ei-tate,
giving val11c-s. Tn.:olyen t may make astiignrne u t i- for beuefit of such
creditor!'< only a1:,1 will accept their pr-o rata in diElrha rgt' of all lia bility. Any creditor ll:1ving rvai-011 to believe tbut such debtor has
conceale d bis property , mny have him 1-11mmo11ed belore Di~trict or
County Jurlge, and exn111ii,e<l under oa1h. etc. Any attempte d
preferenc e of one or rnorv nt->clitors 1-hall be cleernecl lrnudule ut
and without effect. Conce1-1l111e11t hy ctebtor of hi1:1 1>roµcrty from
a signee, 11r tran ier of property pr vioni:: to and in ronternp lntion
of a ignment, with intent to defraud his creditor ' , is mad' a
felony.
Interes t . Legal, 7 per cent. and by contract any rate rnuy
o usury lawi-- in the Territory . All notes in writing,
be fixed.
made and igned by any per on. whereby be hall promise to pay to
any other per on . or to his order, or to the order or any other µt'r on,
or unto bear I", any um of m011ey therein mention d, 1-hall l.Je due
and payable as therein expr<·s ed, and hall have the same effect
and be neo-otiab le in like mai1ner a, inlnnd bill~ of exchang e, according to~ the cm,toms of merchan ts. (Inland Rnd foreign bill
governed hy mercanti le law.) The payt'('l-1 ancl indor ee of every
such note payable to them or their order, and tbe boldeI" of eY ry
such note vayable to bearer, may maintain actioni' fo1 the sum of
money thertin m mioned against th" mak •rFl and indnrF rt=: of
the same r pectivtjly , ill like manner a in ca e, of inlirnd hill '
of excbano- e and not othl'rwi:,;;e. To charge a p r1-ou within tbi
Territor y;, 'an acceptor on n bill of' exchang e, hi. accepta1, ce mu ,'t
be in writing, signed by himiself or hi8 lawful agent. Grace on
all bills. Damag s for prote ted bill.\ JO p 'r cent.
Jucl~m e n ts . Jndgme nt of all conrt become a lien on all
real property of the j11<1gment debtor when an nh~tract of the ame
i filed in the office of the County Recorde r or the ounty where
the real e tate i situate.
1

Licen f>~. Commer cial t raveler a re reqnirect by · tat u te to
tak e o u t a license, b u t thi s legi- lation has b et:n declared illegal by
the courts and i s not enforced .
Liens . A ll pers on s w h o may l abor or furnish m ateria l in the
con t ruction or r epa i ring of any building , super tructure, or other
impro vement b a ll h ave a lien on the sam e, an d on the l ot of land
,\·heron th e ._ame is ituate and connec1e d therewit h. To fix and
i:;, ecu r e the lien, t he pt· r son perform ing la bor or fnrni bing material
mu t, within n inety days af1 er the completi on of such la b or or the
fu rn ishing o f material s, filt-> his co11tract in the office of the ounty
Recorde r where the p r opert, i 'irnate. lf t he contract be verbal,
a duplicat e copy of the bill of parti cu lars shonld be made under
oath. and on e delive1 ed to t he Recorde r a n d filed for record and
the other furnished the party owing tbe debt or his agrnt. Such
liens are to o,· forecloFe d hy suit within six months after filing the
same in the Recorde r' of1ice.
Li mit a t i ou . Actions for the rrco ~ery of real estate mnst be
comn,en ced in five_years. Other action must he brougbt as follows:
Witb in on e year: ( 1) Actions fu r injuries r1one tu the person of
anothe r ; (2) maliciou prol'-ecnt ion, 1al::-e impri ' onrnent, iujnries to
characte r or reputatio n b y libel er slauder: tB1 damag, ·s for i-erluction or breach of promi::ie of marrfage ; (-!) injuries to pen-on of
:mother \\'here death emiued f1 om such 1njurie~. ,Yi thin two
_years: (1) 'l're IHli:31-; (2) action for , rovrr and conYer~i on; (3) claim
and delivery of pen-onal property : (4) action . . npon j nclgnwnt s and
decreel" of com ts ,dthout t11e Tt'rrit<•ry , ancl npon rns1rnme nts in
writrng exec11te<l \\"ilhout the Territo y \Yithin thn e yenrs: (1)
Actions for debt when, the indebtedn vsi5 is nnt eYidence d J,y contrad in ·w1i1ing; (;?) actions upon swted or openaC'c ount8. ·w ithin
four ) ears: (l) Action for the pellalty or for <11rnrngcs on the
penal clum;e of a bond to cu1n-ey 1eal l'State; (-2) 11ctions by one
partner against a t:opartne r for set1lemv ut of the partners hip
account, or upon mutuc1l and c1ur1 ·nt accounte- co11cerni ng the trade
of mercband L:-t: between rne1C'hant and merdian t. tlleir Jaetors or
agente, and tbe cause of action t>hal1 be con:::iden d at:- baYing
accrued ou a ce1-sa1 ion of the clt a]ings in" lnch they\\ ere mtt're:--ted
togetber. vV11hin five yen·s: Actions for de tit \.,·here 1he ill(1e1Jtec1ne::s i ' evidence d hy or founded upon any contract in \Hding e:s.ecutE:d within this Territory .
R igh ts o f :Mar r i e d P erson s . All lH'(lJH rty, both real a n d
personal , of the husband owned or cluimcd by him bef01 e urnrriage
1
and that acquired afterw ard bv gift, devise, o , dei:3ceut, as a so the
separate
hL
be
Rlrnll
same,
the
of
profirs
and
increase, rents , issuee,
property , and all property , both real nud p cr!-'Onal. or 1he wifr
ovrned or cluimcd tiy her before rnariia~e a11d that acqnired aftcr" ·ard by gift, devife, or det<cent, as also the in~rea e, rentt:;. 1se-11 et:;,
and profit!:! of tbe sc1me, i::;ball be her sepm·ate properly The enrnin!! alld 1:1ccnmu lations of the " '' fe and ber minor children in her
cnstociy \\'hile t>hc lws lived or may live separ111e and apnrt from her
hnsband , shnll ,ilso be the separate property of the wife. All
property acqni1ed by either busb,md or \dfe during the marriage ,
except that wllich is acqn1Hcl by gift, revise, or clesc<:nt, or
earned by the wife and her rni11or cluldren \\"bile ~be l!a1:< lin•d or
may live s eparut,, aud apart lrom IJer lrnsb,rnd . Rlrnll be dt'emed the
common proprr1y of the husband nnd wife, aml durmgth e co, erture
nrny be disposed of by the hn band only. l\lanied women If 1he
age of twenty-o ne ye ,, rs aml up\,·nrd1- slrnll b ·1Ye the wbole aml exclusive control of their su1 •arnte IH"0I ,erty, aud the s ,1me shall 11ot h e
liable for the debts, obligatio ns, or c11ga~·eme11ts or the htit:-bnml,
and may he contructe d, s · lcl, tran:--ferretl, rnort2.·agt-'d, conn·y cd,
devised, or bequeath ed by them iu tbe snmt' rnmrner and with lit-e
effect a if tbt-'y were 1iot mariie(t. l\larrit>d women of the n~e of
t\\"enty-o ne yeurEi mid 111)\1 ardl'i ::-bull litne the same lt'gul ri g ht~ n...
men of tlie nge of t\\'e1ity-011e year1- all(l upwards . except tbc I ight
of suffrage and of holding office. a11d excep1. the right to mnke rnn tracts h111dirnr the comn ,on prnµe1 ty of the bu bnncl and" ife: and
shall be subjPct to tbe ~11rne lcgnl lialJilitie s aA men of tbe age of
twenty-o ne years and upward::,, but 110 part of this Rvction • h11ll he
so coustnlt" d u to prohibiL women from Yotmg 11t ~cllool ckctio11
or holcli11g oftit'e as l"Cb(lol trnstecR HR 110w proYid, d by lll\\". 'I he
district conn shall haYe po" er to bear arnl d, termine uitt- for
tbe clisf'lolution of 11HllTiage. wlwre tbe cm1i::t·r:- alleged therefor i-:hnll
he nat11ral or incnrnbl e illlpoten cy of t he body :n the tllnc of 1·11tering into 1be muninge contract , or any otber inqwdin wut tbat
renders ucll coutract \"Oid, and sb,ill baye power arn1 authority to
decr~e the mani,1ge to b e 111111 and voill.
W i ll s . EYery person aget1 twenty-o m' yenn, or u1rnnro, or who
may be or may 11aye been lawfully rnurri1:<l., being of ~ouml mrnd,
shall haYe power to make a ia ' twill and H' · tamrnt. \\'ilb m n~t he
in writing (though a typc"Tit tcn will be nndoub kdly, nlid ), t--i!!;Ill'd
by the t.c~tator, or by ome om• for him, in hi 1 H'i'\t'nce nn1l hy
~1ie direction , aml must be attest<:d by two or more credihlc• "i t11e, ~t-.
nlJoyc the age of fourteen year ' , in the presence• of each other and
the tc ta tor. \\Then the will is wholly written by the te:c-tator, no
Tn11cnpnt ivc will · nrny lie llHHk vi. lwn
witr,es"l' S arc nc•cef'l ary.
property willed doe not excePd in value fifty do Inn,, unless it be
proved by three credibl' "itnct-:-;e s that the tt'stntor cnllcc1 on ome
1wrson to take notice a cl lJL'nr 1e tirnony that ~neh iH his will, und
that tbc tt'stimon y, or the substauc e thereof. wa:,; comniitl l'd to wri ting within t-:ix clayR after the making of such \\'ill; in t:;llCh case th'
amount wilktl b not limited.

ARKA NSAS .

(Hedi' ' cl b) C. B. :\l oonE, A ttorney at Law, Little Rock.)
There are uo constitut ional or .tatntory provh,io n ~ specially relating to bank ·. Tiley are incorpo rated under tl general law, provided for nll incorpor ated compani es. by fi.lii1g 1uticle of incorpor atio n in the oflice of the .., crernry of tate. 'rbere i no svstem of
otlicial •x 11 minntion , and no reporr arc made, except tatement required to be made tor.fgff\Mtf9orfrr the pnrpo e of taxation .

UNIVERSITY OF WASHINGTON

B NKING A D

OniIMER IAL LAW -ARKA

CUM~lERCI L LAW.
A<"knowl dgm nt of deed within the 'tate may be taken
before the npreme ourt, the Circuit ourt, or either of the JudRtber of, or th Cl rk of any court of record, or any Justice of toe
Peace or No tary Public. Anywhere el'e within the United tates,
or their Territorie ' , before any Federal, tate or Territorial ourt
having a al, or the "'le rk of any ncb onrt, :rotary Public, Mayor
of any city or town . or hi , f officer of any city or town having a
Beal, or a ommis ion er appointed l1y the ov rnor of thi
tate.
Ont of th United tate , before any ourt baving a 'eal, any Mayor
or chief offi r of any city or town having a eal, or any officer ot
any tor ign country, authorized by tbe l'lw' of' ucb country to take
probate of conveyanc of real estate of hi , own cou ntry, havmg an
official
al, or before tbe Clerk of any conrt of record of tbe
Indian ~onntry, embrucino- the fiv e civiliz d t ribe .
A signnlents and Insolvencv . A 'sisrnment for tbe benefit of c'i·editor may be made witb or without pre ference , with
the c -c ' ption that 11 prl'fcrcnces are allowed among reditor of
insoll'ent col'porations , exc"pt f r wnges and salaries of laborer , an l
emnloyes . A ' ignee mu t g ive bond in donhle the amount of
property a.sig1ied, and mu, t F>e1l within 120 dayi:-, at auction, all
the property as igned to bim for the payment of debts. Proof
of fraud on th part of H'signor is sufficient to inYalidate the a ignment, wheth r the A sign e knew of it or not.
Attachm nt. Plaintitriu civil action, ari ing on contract, may
at or after cornmenrrm ent tbereof haYe attachment agaim:t property of defendant wber ' ' aid defendant i1:- non-re'ident of the tate
or 11 foreign orporntion, or l.rns heen ab ent ionr months from the
tnte. or bas depnrted trorn it with intent to defr,-ind his crrditors,
or ha" 1 ft th' county or hi' r eR idence to aYoid sen·ice of a snmmons, l'l' on eals hiinself so that a snmmon can not be ened
upon him. or ha ' transferrrd, ' Old, onveyed or r mov a bi ' property out of tbe State with fruudulent intent. or is ahont to sell. remove or dispo'e of the snme with such frandnl ent intent. not
leaving enongh to µay all bis d. : > bts. Undf'r H writ o1 att:1 bment
debts fine tbe defendant may h e gnrnishf' d. Plaintiff 11111st give
bond with ' nreties. col1Clitionecl to pa.yall d11rnngeF> rl fl'nctimt may
n tain if the order of attacbml'nt i ' wrong fully obtained.
Corpora t i011s nre organized under a general incorporatio n
law. 8tockbolders are liable only for the amount of th ir tock.
Corporations for mannfacturi n g or hnsiness pnrpo es may be
formed by any number of per ons not lei- " than three, by en ter ing into articles of nsia;ociation for that purpose. 'J'be article' of
a sociation. togetb r with a certificate. ~worn to by the Director~,
and eibowing compliance with tbe articles, are to be filed with
the Secretary of State and "'ith the Clerk of th e County in which
the corporation ii:- to bave its place of hn iness . The cnpital tock
bas to he divided into i;:;bare~ of $2f> each, and the number of
shares is fixed in the articles of a ' $OCiation, bnt mav be increased
at a meeting of the st ockbolclers pecially call ed for that purµo e.
Tbe director~ urn t he tbree in nurn ber at least, and cho1=en annually, but a failure to bold the annnal election doe-. n ,lt dissolve
the corpora1ion. The directors elect tb e pre$iden t . wbo mn t be
one of their number, and tbe otber officer . The ecretary and
treasurer m n t re.::ide in the ::-;tate. Curporations mny bold uch
land' a are nece1:3sary for co rporate purposes, and may recei VP
land in payment of debts . 'l'he president and rnrretary are
req nired to fl le in the oflke of tbe Conni y Clerk annn•1l ' tatement--.
bowing the :financial condition of tbe corporation. and ni,on
failure ro do !-'O are liable for all the corporate debt~ . 1f the
directors declare a dividend when the corpuration il'l in..,olvent. or
one which will make it insolvent, they become liable for the debts.
Corporations have the l•Ower to sell tbe tock of ' Ub criber w ho
are in default in the payment of their 1-tock ubscri1,ti1lll ' . The
taxes on tbe tork are a essed a gainst and vai(l by 1he stockholclers. A fee of $25 it-1 to be paid to tbe ecrc::tary of ::3tnt -' for
filing the articles of fl ' ~1 c iation. Railroads are incorporated
under a separate law. Forei~n cor ora.tio11--, before doing bu~iness rn t bis tate. ar ' rcqnir, ct to iii' with the Secretary or ·ra1e a
cert 1fl ca1e under the lrnrnl of tile president and curµo rat L' seal,
appointing an a5;ent ,Yitllm 1 he Sta·e upon wbom i-ervice may b
bad. J 11 ca!E-e If a failure to do :::-o, all th eir contracts u.re vo id a ... to
them. but eufor eable oy the other party.
Court . Tams and Ju, isdictiofl. Circuit onrts \\'itb original
juri diction over all c_ivil ca.1-e~ c xceedin~ $100. e.xcltll1i11g _inrcr ~st ,
are held. twice a yc,n Ill encb county. In Pulaski onnty. 1 1 wl11ch
Little Ho k i i::hnuted, l-nirs may be commenced at any time, and
if sPnice it- btH1 twe111y cl· ys before tbe term adjourn~. dcfen , e
must be filed, or jn(lgrn ·ut b;, l1 fault may be takl'Jt. Justi ces have
original jurisdiction iu matters of cuntrnct nµ to 100, and co1Jc11rrent up to $:300, cxclucl ino- intl're::-t. 'iYlwre there are t wo or more
dcfcudnnt~ liYincr in diffe1 nt conn! ies. sni t rnn \' be broiwht before
a tTll · tice ~f th ·""Peace in t be connty in whi cl1 nny one of tbe defendant::- n' ' id ' , and snmrn011 " is rn cl to the othl'l' co1mties fo r the
oth r def ' ndant or defend•11lf . . . Conrt8 f Common Pleas are
authoriz.ed hv the co ns titution . aud are e;;t1:1bli.-lwd in a few
conntie8, wit11 :-:perial ly defin a j nri~cliction in matters or contract,
etc., varying from '500 to 1,000.
Days of Grace. The rem edy on bill-: of exchange. foreign
and inland , and on prnmi ory note . i ' governed by_ tbe rules of
the law merchant a to rlay of grace, prote_,t, and noti ce.
Deposition . Depo ition may b u ed on the trial of a'l issue
in any a tion where the witne~ d oe, not re"-id in tbe county where
the action is p nding, or i ab ent from tt1e State,_or re~ide.8 more
than tb irty miles from the place where the cou rt it~ m wln ch the
action i~ 1ienclin!l, and may be tak n de I!( 11 esse, or ~1pon reasonable nntice to th • adver1<e party, or upon rnterrogaton l'l irnd commi ~ion. ReaBomtt)le uot ce i ' on dny for each thirty miles of
trnv ]. and one dliY for preparation. where the dhitan c<-' ie1 one
hundred mi leR or Jes . and t\\'O ctny when it it'l mor "'. Wh r the
di tance excet•d~ fifty mil' , and tbe n uul m od e of travel for the
whol , or p 1rt of' th di~tanc i~ bv. stea mb.oat. railwa.v, or otber
public conveyancP, thf' tune onl~nanly reqmred hy such .n~ode ~f
travel with the day of p repan1tlon ball be eemed utti 1ent m
the n~ti e. Wh 're more than three clay ' notice ha ' been giYen to
tak , a d('po ition out of the tate, the party may. by notice to
advn e p arty or bi attorn y. erved in on day after service of
the fir t noti ', req11ir t h• dl po ition to be taken upon interro0

1

J

A .

571

!.!;Utu , ic: . \V here a deµ osit10n b taken upou interrogatorie i5,
n ith 'r the party nor his agent or attorney shall be present. unl~ss
both partie are pre ent or represented, or unles tb.e oppoP1te
party, or bi ao-ent or attorney. ha been seasonably notified of the
time and place of t be examination . or the party attending bas b en
110tified by the act,,er e party to a1tell d. T he .court ha power to
order that deposition taken in another county m the tate E'hall be
taken on interroo-atori e . The certificate of t be officer muH tate
the time and place of takin~ the deposition; tba t th "it ne':' ,rns
duly sworn b efore he aave nis testimony, and that hi te t1mony
wa ' written and r ead to and ub ~cribed by him, iu the pre ence
of the officel· : and al o state by whom i t wa written. and which of
the parties. in person, or by age11t or attorney. _-was present at the
examination of the witneFs. Wh en thedepo8it1o n ar completed.
th ey E'hall be sealed up by the ofticer. an<l direc ed t o the clerk of
the court in wbi h the action i pendin!!, with an indor~ement
thereon. showing tberu to be ct po ition'1, a n d the l"tyl e of the c5: e,
and either delivered or mailed to the clerk by th officer tak111~
them; except that depo ition" tak n out of the Stat.e . ealed ana
directed as above, may be delivered to the party takrng the a~e,
lli ag nt or attorney, to be by him delivered, ucb per ' on ~o de~1vering them taking an oath that they have not been l pened b ~ b1m,
or other person to bi knowledge. The statement of the w1tne s
m nst b e writtl n in the pre ence of the officer taking it either by
tb e witne or the officer. D epositions may b taken in tbe date
before any j ndge. or clerk of record, or j nt-tic of tbe peace, mayC?r
of a city, or notary public. Depo1:-itions may be taken out of th1
tate before a cornmis-: ioner appoiD ted by the Governor thereof. a
judge of a court, a justice of the peace mayor of. a _city, _notary
pnbli c, or any other pers, ,n empowered by a cornm1 ' 10n directed
to him, by con ent or the par , ies or by order of tb e court. Where
a depo ' ition i..; taken out of tb e tate before an officer bavino- no
seal, lli-< official character should be ccr titie _1 by a clerk of a cour t
of record of the county.

Exemption ~. Home t ad of married per on or head oi a family
in conn try not exceeding 16U acre . with improYemen ts. not to exceed $2,500, but in no ca 'e can the horne ' teacl be reduced below 0
acre~. without regarrl tn value . In any town. city or Yillnge. h meRtead of one acre with improvemen t , of total valne of 2.500. not
reducible below one fourth of an acre without regard to value.
Peri>onal prop rty of married per~on or bend of a family. $500 beides wearin a apparel; unmarried, o!· not bead of n l"nmily. $200
and w<:aring- ~1pparel. ~o con veyance. mort o-age or other iD!-'trurnent afl'ecting home t<'ad of a married man (except for taxe'-, laborers' and mechanic~• lieu) ji-; valid nnlei:-s tbe wife juius in, an d
acknowledge s l'lame. Deb tor ma\ ell'ct and claim his homestead,
before or after :::-ale on execution, whenev r snit i~ brought for po session. lf be neglect to claim it, bis wife may do so.
Execution. , nre returnabl e ~ixty dnys from date from the ircuit Court, and thirty tlar from Ju ' tice·~ ourt. Wbere execution
from Circuit ourt has not been tayed, sales are mi-1de on a credit
of three month on bond nncl secnritv, said boud baYino- the force
of a judgnwnt if forfeited. Exect1tion may be i:-rayed for six
months by d Jenclaut giving bond with ecurity for iudgme1,t. interest, and costs. wh ich bond has tb force and effe t of a jlldgrnent. Saleti nuder Ju tice of Peace execution nre ior cat:h iu hand..
Int r est. L egal rate i
ix per cent., hut contracts may be
made for any rate not exceeding t en per cent. Interest begin to
run on an open acconnt from the time payment is unreasonabl y
withheld. Jndgment ~ bear tbe same interest a
ontract ned on,
if in ' ucb in~trnment tbe word "until paid' arfl nsed concerning
the paym ent o1 intere t. .But if the words p r annum al ne are
n eel, theu, regnrdl e, s of the rate stipulated, the judgment vrnuld
draw six per cent. Usury forfeits principal and interest.
Judgment ~ and cl cree of ircnit Court are lien on real e tate
of deiendant within the county in which the onrt i held and
on personal prop erty from the time execution i' received by the
'beriff. ,Judgm ent- of Justice" of the P ace become a lien on real
e tate hy tiling a tran cript with the l rk of th Court and are a
lien on perF>oual property from the time execntion i received by
tbe constable. Ex cutions may be issued on jndo-men t until it is
hnrred by the ' r~1tute ot limitations. Judgment are rendered at
fil" t term of a court of record if no defense is made. Executions
can not issu e on Just ic ·' judgment after a lapse of fiye years. If the
judgment is ove rt 11 dollars, exclusive of costs, plaintiff mny, within
five j enrs file tran~cript of jud2:meut in tbe Circait I rk' - office,
and it then has the force and effect of a Circnit Court j ndgmeut.
Limitation s. Accounts, three years; not ~, fhe y ars; jndgment', ten year ; sealed instruments l-'X cuted prior to .\lurch ~~th,
1 9,t nyear ;execnteduf1 er1l.latda1e the years. Awritteuaclrnowledgme nt of inclebtedneF>s and µromise tu pay, or a part payment. re Yi \'es the debt. Li mitation8 of action~ l'or the r ecovery of
real estate,:-- 'Ven Jl'at". Usual 1saving clnu;:; _.. in favor of infants, marri ' d wonwu. and in ·ane p er~onF>, but not a to non -residents.
uits
to fnrec lo~e mprt!!a~e" or tru" t deedR are barred u oles l)rought within the period of limitution fixed by lnw f,,r ~uit 011 th e debt or liability for the 8ecurity of "bich the , are given. A payment mane
on th ' de ht before it i:-- hnned. will not r evhe it, nor extend period
of limitntiou, on to afl'"ct rights ot'third partie . unl ss rnortgaf! . trui-:te , or benl.'ficiary prior to expiration of limi tatiun. undor es
memorandum and date of ~ucb I ayment on margin of the record
ofth murt a nge or ti·n t dt>ed; where the debt would b barred in
le ~s than on' year from l\larch 25th, 18 9. mortgagee is al lowed
one year from that date to bring au action to enforce his li-'n.
1\Iarriecl Women. Married "·omen l.lave tb ame absolnte and
unqualified right in property of eYery deRcription, when acquired,
a, f, mme ole, and the same is not liable for d.eht or contracte of
the hu band. To entitle a married woman to ber right as to personal prop erty, he mu t can .e u b separate property to b recorded in b r name in th e county of h Jr re.. , idence
h ma carry
on busine.::i:: on h r ole and , eparate a count. and _,be nm~; sue or
be Fned alone 011 account of ber s parflt property, bnt<ine ' S. or
rvi es; and be may contract and bind ber ·elf in r e, p ct to nch
eparate property or bn;;in o , and no i;:;nch contract hall be binding on her h u -hand, or r nd r him or hi propert in any way liahl tb refor.
be may com- y 11ro1)erty by ng Dt clnl? nppo nted,
h) pow r of attorn y. 111 nll actions wlH're a married woman is a
party- :xc pt a to ~uQ\lig1f..'llltlN:cil¢1 property or bn1-,iu s -her hu 7

UNIVERSITY OF WASHINGTON

5 ....I~')

BA ... KI GA ,_ D

OJI.)I ERCIA L LA"\

band mu t be joined with her in the 1mit. Widow take dower in
one-thir d of all lands of \\·hich the hn band was eized of an estarn
of inherita nce during marriag e unle"s legally relinqu i hed; al o
an ab olute one-thi rd of all per onalty. Where there are no children he c1:1-~e~ one-h alf of realty in fee simple when tbe estate i
a new ~cqm 1t10n, and one-hal f of the per onal e3tate abrnlnt ely,
a:- agarn t collater al heir .. ; but as aa-ainst crediror R she take oneand one-tbi1 d of the personthird of the real estate in fee "imp
alty ab _olutely. But if th e real estate i ancestr al, she takes lire
e tale m one-hal f as aa-ain .. t collater al heir and on e-third as
again t c1 editors.
[~ -0TE.- Our "' upreme Court has decided that a "·ife can not form
a bnsine.: s partner hip w th her husban d. Nor can sbe release
dower in favor of her bu ban<'l. And husban d and wife are incapable of contrac ting with each other.]
.3-~ort gages are ackno,Yledged same as deeds, and are not liens
until filed for record, though good hetween the parties . May be
foreclo 'ec~ by compla int in equity. :Mortga ges for real estate to be
recorde d m the connty or countie s wh ere the lands lie. Chattel
mortga ges must be acknow ledged as other mort o-ages. May be
filed and not recorde d at. option of mortgaa -ee an~ are liens from
time of filing for one year. If the rnorto-ao-or ~f perrnna l prop1·r ty
d
o-e must be recordt:! ,
b
is a non-res ident of tbe State, chattel morta-aa
is
roperty
1
the
which
in
county
the
in
ed,"
_record
not
and
o_r "filed
ked
mm
\\~ben
cl.
l'Xecnte
8
i
ltuatecl at the time the mortga ge
''filed' ' by the Recorde r, the mortga ge i1- a lien from date of filing.
Trust deede must be acknow ledged and filed same as mortgag es.
Before s~le under 1:1ortga ges, the propert y must be apprais ed, and
mu t bnng two-th1 rcls of the apprais ed value, or it is reserve d
from sale t,velve monthe , if real estate, 1-rncl sixty clays if persona l
propert y. At second offering it is sold for what it wiJl bring. The
mortga~ ~r is no_t perm_itted to waive his right of apprais ement or
reden pt1on. It 1" a _TI1JRdemeanor, or punisha ble hy fine, to sell or
remove heyoud the hrnits of the conn ty p e rsonal propert y on which
1!10rtgage rest . :\(01 tgagp given on a crop to be planted creates 110
lren, unles the crop is planted wiibin twelve m onths afLer execution of the mortga ge.
~ote ~ and Bills of Excha nge. Comme rcial paper may be
defined rn general termR as that species of contrac ts used in the
transact ~on of b usines~ as a represe ntative of value, consisti ng
of prom1s sorv not es, bills of exc hange and checks etc. There is
no la_w requi~in g it to_ be paid at a bank, or any other fixed place.
Foreign and mland bills of exchan ge are governe d by mercan tile
law as to d~Y"' of grace,_proLes t and notice. All indori:::eri;, or assignors of. any mstrnflle1:it m w~iting assigna ble by law, which by its
terms 1s payable 'withou t discoun t or defalcat ion," may be notified
of non-pay ment or protest of such instrnm ent and are equally
liable with the m~ker, 0?ligee or payee, and may be sued tor the
same at the same time \'nth the maker, obligee or payee thereof,
or may be med separat ely. The payer and drawer of notes and bills
of exchan ge for any "paten t right'' or '' patent ri a-b t territor v"
may make all defens es a g-ainst assignee . indon5e r. h<Mer, or p"urchaser of such notes, draft, or bill of exchana -e. that could have
been mad~ agai n st original payee or dra,-.,.ee, ~vbethe r such note,
draft, or bill , ,f excha_n ge be assigne d or transfrr red before maturit y
holiday s
?r n~t. Sunday ._ Chn i:::tmas and July 4th are the only legal
m this State_. Bills of exchan ge, notes, etc., falling clue on eith er
of these holiday s are payable on the next day pre ceding, and may
be noted and proteste d on such ne:2:t prec_e d ing day; bnt notice and
protest the next day after the holiday is valid and effectua l.

le,

S!-1it ~n the Circuit Court is comme nced by filing written complamt sign ed by the party or his attorne y, verified by affidavi t of
~he party, but sue~ verifica tion is not require d where the compla int
1s founded on a bill. note, or other written oblio-at ion. The first
term is trial term where the summo ns bas been served within the
county withi_n wbich th~ ae;tion is brough t, or in ad joining county
ten days before the begmnm g of term-tw enty davs elsewh ere in
the State, or sixty days outside the State.
Taxes must be paid netween the 1st Monday in J anuary
the
apd the tqth day of April in each year. 1f not paid within and
added
is
penalty
cent.
per
time reqmre d hy law hventy-: five
]ands are advertiB ed for twu weeks ancl sold . Lands may b~ redeemed by the owner- or agent or other person !'or the owner within two years , by ~aymen t of purchas e money. penalty , and
co t , an~ ten per cent. rnteres t per annum . and by insane persons 1
per.son m. co~fl.n~ ment, and minors, within two years after expi
ration of. d1 abilitie s. Sale convey s absolut e title, subject to such
redemp t10n.
Wills. E-very pPrrnn 0Ycr twenty- one years olcl may devise
realty and persona lty, and a_ll pe1"0l1 ' over eighteen .may bequea th
good and chattel by la ' twill and te ·tament . Every will rn ust be
execute d a~ follow" : (1.) It nrn t be f-nb "'cribed bv the tc tator at
the end of tl_w ~ill, orb)' some pcr ' on for him at :his requeE"t. (2.)
. nch nh~cn1it101~ shal~ be made hy the tc,:tator in th pre"'en ce of
C'acb of tllt· attt-stm g witne@se, , or shall be arknow ledged by him to
hav · be •n H> matle to each of the atte ' tina- witn ' Se'. (3. ) At the
time of 1-it~ch ubi:.-crihiog or acknow ledgm~ nt the tc tator Rha11 declare tbc_• mstrnm ent 1-io i:,ulJ crilJed to be hiR last will a nd te~tame nt.
(4.) T~c·n· -._ball b at Jen ..,~ two at!C'Sting \\'itnc f'CR , each of whom
Jrn11 11.!ll hi name a:-, a w1tiw, Har the c11cl of tbe will a t the reqnest
of_ th• t<-:stator. (''>.) ~'~here the entire body and i-ignatn re of the
will ar~· m tbe handw1 :nmg or the te tator it may be establi heel hy
th· ummpca chal>lc• cndenc p of at il•aiH thrc•, di. inten•i-itc_•cl \\'itn s:-;c•s
to the haiH~\\Titini.; an(l 'i" natme of t lw testator withou t i::nlJ ,crihing_ witr~e 'I-'- · ; lrnt no, uch will sludl lw pleackcl in bar of one ubuncurw tiv • will s ma.\' he_• made_• during 11:Jst
:-cnbed m clue form.
by t\\ o witne 'Her-:, and arc not gooc1 where
proved
lit•
11ln ·i-. , ancl m ni,-it
tl_1c ·'-t~t<:' beqneat h!'tl exceNh- the hnncln· d clollarH. A copy of ,l forthe
eign w1_ll may he acl~it((•cl to])roha tc iu thi :-\latt>if it appears by
b,
to
a1-1
cl
11t
•t
ex
so
·
wa
it
that
~tatl'
anotlwr
lll
probatt>
copy ol the
a v,tlid will of la11d-.; in thi.· • tatc_• bv the lawR thereof. \Yill an~
proved and recorclt-d in the office of the_• 'lt-rk of the Pro hate onrt
of tlJe county in ,rhith tl1e te Lator rv:--ickcl Ht the time of hh; de 1th.
If he bad no k:110,rn plac • of re idencc in thi8 tall', and land i ' devhc_•d, then in th county where the land or the <rreat ~r part thereof
lit·"· If no land i deYi:--ecl then in the conntv " ·here h • die d o;
hat in which his •-.tate, or the greater pan Then.'<>f, hall lie, or" 11'ere
lw1 c_• may hJ any tleht or demand owing to him.

:'1

ALIFO l:L l A

CAL IFOR NIA.

(P rep ared aucl R evi ed by DORN ... - DoRN, .Attorne y
elor at Law, ~an Francis co.)

and Coun-

The State con~ titnt ion provide s that the legLlat nrc shall h:we n
power to pa "s any act grnntin g any ct nr er for banking pnrpo-.c s,
but corpora tions or u" ociation s may b ' formed for 'ttch µurposc ..
under genera l lmYs.
Pri vate corpora tion may be formed for any pnrpo ,_ e for which
individ unl n1c.w la\\·fnllv a sociate themsel Yes.
Every corpori1 tion clofn!! a bankin g bnsine" s in this ~tate mn"t
k eep in its office, in a plr1ce accessib le to the r-torkho lder~. ckpositors, and creditor s, a book cootain ing a list c,f all tb stnckho hlers
in s u ch corpora tion. anrl ihe nnmber of shares of i:-tock held hy
each, and en ry such corpoin ti on rnnst keep po~tell in it,_ ofticP. in a
conspic uous place, accessib le to the public general ly, a notice,
signed by the preside nt and secretar y, showin g: (I.) 'l'he nam e,- ot:
the directo r' of snch corpora tion . ( 2. ) rrhe mun bt r and vulue o1
shares of stock held by each director .
Every corpora tion and all and every per .. on do'ng a bnnkin g 1rn 'iness t,,hall semi-an nually, in January m1cl July. p11bli1:,h, in nt least
one newspa per pnblislw d in the cotm ty in \\'hich i1-1 :-i t nnted the principal oflice of' such corpora tion or in whi ch r:-aid pm son or perBon
may TfSide, a ,- worn stateme nt. Vl:'ri1ied, of the :1mo11nt of tbe cnpital actuall,v JJaid iu; l)J oviclffl that nothing ~hnll be lleemed capital
actually paid in except money bona jide pa · d into the tn'11sur y of
such bank. Said stn 1 ernenr must also be filNl for re conl in the
recorder 't5 office of sahl eounty. .Every bank :-hall, in nclditio n. in
Jaunary a11d July, publish and record a like S\\'Oru tatemeu t of ibe
actual conditio n and value of its asl:'.ets a ncl liabiliti e and w1 ere
situater l.
Tr e director s of every snch corpora tion makm ~ fals e stateme nt
as above, shall be liable general ly and sewrnll y to any per1-on thl'reafter dealing with such corpora tion. \Yllere any or uch banking
rorpora iions shall be foreig-n the .stateme nt N n\Jo\·e provide d for
shall be verified by the flgf'nt or manage r of the busines::; of snch
corpora tion, residen t within thi ~tare. No corpora tion nnd no
person or µersons who fail to comp ly wi t h the pruYi~ionFi of this
law shall mainta in or prosecu te any action or proceed ing in any of
the courts of this State, until they r-hall lrnYe first duly filed the
state ments above provicl, d for, and in all 01hcr ret-pl ct complie d
with the prodsio n , f tbe law.
N o corpora tion can nse tbe name or transac t tbe busines s of a
sa.vin gs l.>ank, or bank, or banking cor p oration. withou t first procuring fror.1 the bankin g commis sioner,- a licen e for one year from it
date. It is the duty of the banking commiesio11e1 to persona lly
makeaf nll examir ,ation of each bank, or similar institut ion, for tbe
pnrpose of asce rta inin g its condit on and sol\'en cy; and if tbey
find that suc h in titnti, n is violat ing its charter or i ' concl,,c ting
busines s in an un safe manner , they ~ha1l commu nicate with th~
attorney -genera l, \\'ho bail immed iately comme1~ce ..,n it to enjoin
amt prohibi t it from transac ting any furth er b u m es .
There is no limitati on upon t he right to maintai n an action for
the recov<'ry of money or o the1 propert y deposit ed with any bank,
banker, trui- t compan y, or savin~s and loan sociC'ty.
For liability of stoc:kho 1clcrs, etc., see corpOJ ations.
c oir:ME R IAL LAW.

Action s (See Attacllr nent and Arrest.)
All civil actions, except ca es of ,Yhich the Suprem e Court ha ~
o ri ginal jurisdic tion, are comme nced by filir g in the oftic of the
county clerk a compla int, upon whi ch a snmmo n s must, wi thin one
yea1·, be issued by the clerk . A co py of the summo n and cornpiaint mnst be erved upon each defenda nt If tbe defenda nt i,
serYed in the county where tbe a ction b, hrono-h t, be ha t n clays
within wilich to pl ead to t h e compl» int; if ervecl on t of the county
and within the State, he has thirty days.
In all actions in rem,, and i n all actions where the cl fcndaut is
a foreign corpora tion hadng no mauagin o- 01· bnsine~ ' ngent,
cashier , or secretar y within t he tatr, or in a ction which relate to,
or th e subject of which is real or p er. onal propert y iu this State, in
whicha person d e fendan tbnsor c laim'al i<'nor inter ,tactua l or
conting1·11t. or in which the reli-rf clemand ecl co n si t ' wholly or in
part in excludi ng nch per on fr< rn any intere "t therein, tbt tkfenclants ma y b e serYed by publica tion o f th _, ummon ~, in ca , tbey reside
out of tbe ~tnte or can not be fonrnl therein. The summo n~ mw,t
be puuli hPd ar le"st once a week for two months in a newspa per
of the countv b efore the ervice i ' comple te.
Ackno wledg ments . ( ee Con veyances.)
Admin istrati on of Decede nt:-,' E!-tat . Lett r1- teRtnm entary are granted by t_he, npe~ior Comt after a\\ il1 ,~ prohatt•d,
to tlw ex 'Cntor nmne<l m 111 will. H e must C'Xecn1 his trn~t n
prnvicl cl in th' \Yill uncler th<-- snpc•rvh :ion of the Ct nit. Il e mut-t
flip honcl~, unk-ss clis1>ensecl ,\'ith by\\ ill.
Let terr-: of' admil1i ~1 rntion an• i~HnC'd, in rt ' e~ of p r-:ons dyin,r
intl':--tate hy the :--ame coni-t in tile fl1llowi11 g ordc•r: 1. rl'o smvi\'il 1g
hut-l>aoll or wi fl'. or some µ eison uamecl bv either. ~- 'l'hP children. :3. 'l'h' fath er or mother . •1. '1'he · hrnth 'l'R. 5 ~i 'tcr~.
G. Grnrnk hihlr •n. , ~c•:xt of kili. '. T he pnblit admini strator.
9. Crc<lit"rH. If any per~o,1 e nti1lec_1 to admi11i ·trntion is ,l minor
or a,1 _in compet l'nt perso n. ll'tter" rn111-t h, gra ted to hi , or her
guanlm u or nny otlH•r p1•rson e11 titlt•d to ldtcrs of 1Hlmi11L'tration in
th· d_iscr ·tion of the court. Admini "trntor ' are rrqnire d to gi\'e
Eecnnty .
Affida vit s tak n in an v other 1-.: tnte to be nsrcl in thiR tate
may be tak n before a commi ' ~io, t·r 1-1ppoinkd by the goYern or of
thi..:i ~tat· to take afliclaYits H11C1 tl<'pO ' it ion ~ in s11rh other Rtute or
before any nota•·y vnblic in any other :-\tat ', or be fore any jnd<Y~ or
C'lerk of a co urt of re ·onl haYi ng n . eal. An aftidiw it tak n °in a
foreign count ry to be m-ed in thii-; i-1: 1:1te muy be taken lJ ~fore an
cmha . _' adlil', rniniOcigineofromh. YiCl'-C'Ol. . . 111," 01' con i-11 lnr agent

UNIVERSITY OF WASHINGTON

B

E:I G

D

of the uit cl 'tat'~, or before a judge o f a omt o f record hasing
•1, 'al in t-n •b foreign country.
If tali:: 'n before th jndg, of a onrt
of another ~tut or in a for icrn ountry th' g •twin 'Ue~s of the
~i<Y ntnrc or Lb' j Lulgc, tb.e exi ' t nee of tbe ·otut nod the foct thnt
' ttl'b. j ude;e i1' a member th 'reof mu t b, •rtifi d b ' the 1 rk
of the conrt, nuder tbe -1 'al ther or.
.,\1lidn.xit , to b, u~etl in thi-3 ::-it 1te muv he also taken befor a
notary public nml nil otber ,11lh:ers nntllo1·iz ,d to ndmini tcr ontb '
bci112: or re ' itliiw in tbi ' ~tnte.
Alien - ba\'e th' · nme right a citize ns to take holtl and cli 'po'c of prop ·rty.
Appeals. The rwht or appeal exi ' t~ from any juclgment or final
order, after jmlgment 111nd, by the 'nperior Co11rt to the ""npreme
Uonrt. \Vrit · of ini un tion redew, hab •as corpn:5, and maudate,
ar, i ' ned by th e cotnt s of re cord ot the ~late. The app~nl mn:st b e
taken within a. ear after j 11cl 0 ·m 'Ut, if th, aµp ' al i ' takl' ll 1ipun the
jntlo·ment roll ,lll<l from the jud g ment lf upon a bill of exveprions,
urn ·t b, tnk. 'u
thin sixty <foy::; nfl 'r fiual j nclgmeot. H upon a
· tntemeut upou motion Jor a n•w trial. \\'itl1iu t1ixty days aft r th'
order <Tmnting or rer usi1w a new trinl: and the nppe ·tl i;; from snch
ord ' l', ~wtl may b' from ll1 j uc!gm ·o t at tlle same t 1me.
An nppeal may be tak 'n from the j ndgment of n j ~lice's or police
court to the Superior Court of the cuu uty witllin thirty duys after
the remlit ou or tb, jndgm nt, and i ' taken by tilin_g a notice w1tb
the jnd o-e aud servin~ th· same on the nd ver~' party. lf the appeal
i , npon qu e~tions of lc:1.w nl,on ', H8Tatem 11t of the cn ·_e mn::;t be ~led
within teu day::; and tbereait r settletl. If the appeal 1s on qnest10ni,
of fact or 011 que 1ion~ of both law and fHct nu · taternent is nece:5nry, bnt ttle nctiou i ' tried anew m tlw . . nperior ou1t.
Arrest,. In an action for tb 'rccoYery oi' money upon a contrnct,
cxpre--s or impli 'd, wl1 •11 1he <.1,r >ndant i ' abon1 tu deµart from the
Stat, with the 111tent to <l ,fraud hi::; cretlitor , he may be arrested:
also iu an action fin· n tine or p 'll dty, or for money or other property
,,mlJezz1e1l or frnmllll •ntly rni:5nppli<:d by a public 1Jflicer, otti~ er of
a orporation. or nn attorney factor bruk 'r, age_nt, (!r cl ·rk m _tbe
conrse of bi · 'il1:ployrn 'nt, or by a.uy per ' on 111 a tiductttl')' rnpnc1ty;
lso iu ca-:" of 111i::;conduct, m•lTlect in oiti • e. or nny profe,1:-ionill
employment or wilful violation ot' duty; al::;u in act1ou to re ornr
the po::; es:-;1011 )f pL•r...:onnl property where it lrns bt' ' n concealed or
removL•d or d1:5µ0::;ed of lo pr ' ve11t it::; bein~ fuuntl; al ·o in en es
where the defrnrlu11t lH1 , been guilty of a frnnd in coutracti11g i.he
debt or obltuation for will 'll action fs brougl1t; or in cuucenling or
d1 -posincr ofµruµerty; al ·o wllL·n l1, lttl::; re ,uO\'t::cl or di::;p -. ed or hi
property or is abont 1o do ::;o wit_ll iu teo~ to defraud er ·dit_ors. Tl1e
order of arre · t is oHH1e by th J11dg' of the conrt when 1t app ear
tbat a can ' ' 'Xi::l s tllerdor. bY nttit.laYit of plaintiff or some other
pen-on. 'l'h, j11do- urn;;t 1L qn1rc a \\"I itte,1 nnd •r1nldng. wi th ' uflident nret ie:::- in a. s um not le ':5 than $500, to tbe e:ffoct tbat
plaintiff wilt pay all C01't' aucl damagt-s i r tb' nrre~t be \\Ttrngful.
Per ' uu · may'be atTl' ·ted nl::so in µrue 'Cding ' a, for omemp_t to
enforce ci vil remedies. Adrnini::;trnto s, exe •11tor~, and guarLIHms
or the e ' tates of i11inor ' may b , required to gi vt:: a strict account of
property or wo.ney in th ir hantl ·, held b th·~ in _that cnpa 1ty, ·
and in ca.::e ol refusal ma y bd arrested and 1mµn 'oued w11ere
property or muney hn ' b ' en emb z:ded or frnudnl 'ntly conYerLed
by them.
.
.
.
Assign1nents for ~he Benefit of Cr~d1tors. An m:5olve;1t
debtor may in good fauh execute an us 1gnm nt of property m
trnst for the ' a ti-faction o f hi, creditor'. ·w ithin twl nty day
therenft r th as io-nor mn s: t mak: and file w ith the
n nty record1;r
a full and true in v1::n rory, t-hO\\"iug all tile reditor::; of tbe n-;:-:ig1 or,
with cll·t11111 pnrticnlar::, reo·arclrn~ thvir laim::3, and all of bis estate
.and property. \YittJin forty t111ys aft ' r the cla e of tlie tran fer tbe
a , io-nee mu ' t gtrn n bond, to be fixed and approved by t h judge of
the tinperior Court or th e county in wbicb. tlw inYentory i ' tileJ, and
thereupon proceed to ndrnini ·te r bis trn -- t. Th' a::; ' io-nor i:-- not di ' chni cred from the µuym 'Ill of hi· d ebt ~ (>X ' pr by the ag re 'tnent
-01 hi~ creditor'. Pr ferences mad ' to c:reditor · ,·itiHt-' ' th' a:::,::3 ignment. ( ..,ee In 'olvency.)
Attach men ts may be i ' sned at the time of i:5:5uing- the - ummons,
-0r at any time thereafter. All property not exeU1pt from ·xeculion
rnny be attached in an action u 1>011 a contract. l'X1i r ss or imvlied,
for the dirccr paym nt of mon ' Y, where the contrnct i::, made_ or
payable in tl1is - - rate and is nut t:.secured by an' mort~age or lien
upon rea,I or µe1"01u-Ll proper ty; ,)r if nri~inally sec11red, tile secuiity
b ecome ' Yaluele ' :5 wi thout a •,)' act of µlaiut1tl. Al1-o in an action
upon u co u trncL. expr 'S ' or impli('d. again · t ,t non-re:,:ident
'l'he
attachment i;-; i-- -ued upun fili1io- nn undertaking. in a 'nm not to
exceed the amount of the claim aud not le~ ' than ~00, to pay all
damaae ' in a::; ' no j11tl 1 rme11t 1::; obt~1inl'c.l . 01· the i::-:::::11tmc ' of the
.nttacl~llll' nt w,1s \\TOniiJnl. 'l'bere m 1s t be an affidavit by or ou
bebnlf of the plnintiff, ._ Llo,Yillg the nmo 1rnt l1efeudant i- int1 r!bted
to plaintiff over null above all h~gal :5etoffs aud 011nterc)nims, am!
that the contract i - one upon whit.;h atta hment ,u1 1s:5ne, and
that there i · uo ~L'Cll • itY held, or 1f held it Lia become worthies
withont fllult of tlw µiai11titf, an l that tbe attacbm nr ii:: llOt
ono·ht or acuon prosec1u ed to hinder, d ,Jay, or defraud any reditor of d .:- J' ' ntlant. Tb is showilw m nst be m11de befor · an attachment
can is · ie. 'l'hc nttac111ncnt m1.1,y be di;;charged by th' defendant by
~xecnting nu nndertakino·, with ' tueti r ,:;, to th effe,·t tba~ in ca::;e
plainti1I re ·o\·ers jnd_gml'ut, that tlw pr_op~' r ty ~1tts.cb cl ½-111 le redelivered to thd :5hend, or that the plinntttf w11l pay the value of
he property released.
Bill ' and ote -. ~'~ goti able 111 truments . ~\. negotiabl 'instmment is a written pr.imbe or re<1u , ·L for ttle paynwnt of a certain
um of money to ord r or bean'r. I t mn1-t be mad' pa _\ abl' in
money only. and " ·1th mt any comlition not
rtain o f f11lfillm 'lH.
The p e rson to wnom it i ' mad' pnyabl mu~t he asc ·rtaiuable 11 t
the time rbe in trnrnent i' m nd ; it may 0 ·ive the payL'e nn o,,tion
between Lh' pn,y1u nt of tl1 snm 'p'c ified and t,ll p •t· ormanc-' of
any orlt 'r n,('r, but us to the Jatt r th iwtrum nt is not within the
provbions of this title. It m ay be with o r witbout date, ,rnd wi th
or without tb , d ' i<Ynution of rh ' time or pince or payment. I t
may ·ontain n, ple<lge of coll 11 t1-m1l s cnrity, wi th authority to di -po._e
tiler or. A nc~otinbl~ i11 ' trnmen t mu ' t not contain uny 01her contrnct than a · nbo,· pecifi d.
Bills of exchange, µrornis ·o ry note , bank no e,,, heck::3. hood~,
ancl c '1'tificate ' of depo ' it are ue<Totiabl in -trnm nt .
An dat may be in el't ,c1 hy tbe maker of a negotiable in tru ·
rne11t, wh<.'tht>r pa-.t, pre~ent, or foturc; and the in trnmcnt i:-- not

,n

5i3

0.JL)IER I L LA \V -CALIFOR I

invalitlatecl by bi d ~at h or iu apaciry at the time of the nominal
tirn .
Day:-1 of rrrnce ar, not allo\\·ed.
Acceptau es lllll l:'t b' iu w ritino- by the drawee o~· . by a_n
acceptor for honor, and may be made by t e ac epto r wntmg h1 ._
namJ n ros:5 the fn , or the bill with or without oth er word,_,
Th accc:-ptanc of a bill of exchauge b): _a ~eparat in"trume~t
bind · the a ceptor to one who, up< •ll the faith there f, ha the bill
for v11lue o r oth r aoocl con ·ideration.
The hold r o f a bill o f excbnn~Ye, if entitied to an a cceptance
thereof may treat the bill as cl i · bullored if tbe c.lru we r'fuse to
w rit , 1:1 '-i·o::;: it..; face nn un quali1kd acceptnnc .
An m1conclitioual pr1,mise in \ r iling to ace pt a bill of exch ange
i, a ufiicieut acceµtanc th ereof in fayor of eYery i)ersou wb o .
upon th , faith tber of ha ' t aken the bill for rnlne or o:her g , od
·o 11 ~itlerau on
The prote ' t of a n o tary under hi ' band and oflicia 1 seal, i ' p,ima
faci e eYid •uce of the fil ts contain d th rein.
A bill of excbun~e if acceµt 'cl with the consent of the O\\ ner by
a p er::;on other tbau the tlrawee, or an a ceptor for honor~ becom~s,
in effect the promisso1y note of :5uch pere-;on, and all J.m or parne
tbere to are exonerate<!.
If a pwmissory note. payabl , on demand orat ight, without interest, is not cluly pr ' S utec1 for payment \\·ithin .ix months frOJ?l ir
dat e, tbe imlor~ers thereof are exonerated, nnle::: ' such pr ':5entauon 1s
excused.
3

Bills of Lading. A carri ' r mu ,_ t 3nb._ cribe and cleliYer to the
consicrnor, on demand, HllY rea1-onnble numb r of bilJs of lading of
tbe i:;am, tenor.
bill of lading is fln in1-trn 111 ent in writing signed
by a arri ' r. or hi$ agJnt, de,...cri .. ing the frei_g ht so a to identify it.
stating the mune of the cunsiu-nor, the term o f tlle contrnct for ca r riage, aud agreeing r dir~cting thar the freigh~ ,be d ' livered to the
or<ler o r as::-h1;ns of a spenfie<l p ' rson at a spl!c:1tied pluce.
Bills, f ladinu- are neo-otiabl '. ancl all the ti 1le to the freigb.t ,Yhich
tlw fi.r8t holderlrnd \\·llen he receiYed it pa--s s to every subs quent
indorsee thereof in ~ood faith, and for value in th orclinnry course
of bn ine~s \\'ith a liKe effect and i u l ikl· rnann r as in tbe cas of
:t bill or es:change. W'hen a bill f la rliuo- it- made to·· b arer. ,. tb
"imple 1rnu::;fer tller.of by deli,·ery convey ' the same title HS an
indorsement.
A currier is exon rat •d from Jiabili y by deli\" ry of th freig h t
in goocl fnith to an) holder of a bill of Jading ther e for, p1-.,perly
indorbed or made iu fa\'Or of th bearer.
\Vheu n arrier bas g iven a bill o f l:lding b may r quire a "nrr mler or a reasouable iudemnity against claim th reon before
delivering the fr iaht.
Chatt l lUortgages may b e made upon lo omotiYes, ngine ' , and other stock of a rnilrond; steamboat rnacbinery: the
machinery u~ed by mnchini:-ts, foundry 11,en, and mechanics; steam
t ngin sand boil r " : miuin!.! 11111 •IJinery; prin tin g pres ' e"' and material: profc:::,::;ional libraries: inst rn11i e nt::; of sun cyor-, phy -ician ".
or dentist'; upllol;;tvry and Jurniture nsed in hotels and Jod~ing
hou:-: 'S: uil paintings, pict11 re\ and works of nrt; al: growi ng ro µs,
inclndin~ grapes aud fruit; ve::; el or m ore t llan five tons burden;
instrument negati vt-e- furniture and fixtur • of a photograph gallery: the machinery, a~ks, pip ' S, tubes, nnd utensils u sed in t he
manufacture or ::3to1age of wine, frni l-brandy, frni t-...,yrnp::; or ugnr:
11le-o w in ' , fruit-brandy frnit-:::-yrup, r sugar, with the cooperage
in wh1rll tbe same i
ntainecl: piano and o rgans: iron and st el
sc1f ' "4; nettt ca tile, horses, mul , ·wine aud sht ep and the in rea"
t li · reol'. The morto-uge lllll:-'t lie acknowlcdgetl or proved ae- in c ti ,_ '
ot" real prop ·rty. and m11::;t b1· r, corded. 1here mt11:,t be au aflidaYit, attach ·d 10 the mort 0 ·age b)· all parti s, that it i' made in guod
fHith and with no ioteutivn to hilHi...r. delav or defrand cr cditore-.
It i n 'CCS ' a ry tu foreclose the mortgage, u~ ·iu caEe of real estat
u10rtga!!;t'S in case of default.
Claims Again ' t E tate of Deceased Persons. I::1 m diately upon th appoint ment or au executor or admini 'tr ator be
mu t publish in um, ne wspaper of the county-if there be one. if
not then in ~ome u ew~paper de ' o-nated by ti conrt- a notic to the
er >clitor of tlrn decedent, ret1niring all p<'r 011' haYino- clai ms
Hgaiust tbe e~tnt ro xlnbit tb m. wi t h tlle n cessary Yoncber', to
the l'Xl'Cnt or or administrnt or at the place of bi, r ·idenc or bu~iues~. to b' ~pecified in the 1111ti t'. ._ uch no tic mu r be publi 'hed
as ol'reu 11,_ t be court ::;hall direct, bn t not le than on , a w eek for
four mouth ' . 'l'be ti m e c xpr •~sed in rbe notice mu st be t~LJ month
nfrer it~ 1irst publication
~11 the c~tate exceed in Yalu, the um
of 10.00U, and four month ,-vlwn it does uot.
All chum , ari::;ino- npou c ,ntract " · hether the same b due or not
du or contiugent, 1n11st be p re · 111ed \\·itbin the time specifi din
th 11otic , aud auy claim not so pr sent di~ bn rr cl f r y r, prol'ided
that wlten it i' made to appear by the afti ltn-it of tbe laiman t to
the "a1 i-.faction of tbe cmut, that tbe cluinrnnt had no noti e a s µrovided . by r eai-;o u of b iug ont of the tate. it may be pr ~euted at
any time before a decree or dL..triburion i' e nt n·d. Ev ry claim
mns.t b sup ported by nfti<iavit, ' howing th qt the amount is j 11 tly
due and rhat no payments have be1~n mad " ·hich are not redited
and t ha t tbere ar no off::;ets t o the same, but if th claim be nut
dnc wh n present d, or be ontingent, th parti ulars of u ch claim
mn - t be stared.
1,h, x ecnto r or ad.mini trato r may, in addi ti on t o the affidavit
r"quire ~ati 'factory v oucher ' o r vroofs to b produced in support
of the claim.
Ev ry claim prop rly prese utrd for allow,mc mu t h indor ed
~Y the ex cutor ?r admini trat r, ~huwin g it allowanc or rejec1011, If al Jowed lt mn ' t b e pre ' ented t th jnclge of the Superior
onrt for ht · ap pro ·11-1l, and b must iudor e upon it hi· allowance
or rrj ctiou. E~'e ry cl~im
allow d aud npprov d, or a copy
t11er of, 11111st. w1thrn thirty day thereaft r. be til d with the court
,111d be ranked among the aclrnowledaed d btR of th e e ~tate to b
paid in clue coure of a tmiuistration. Wheo, how Yer. a ciaim i
rejec t ed. l'ither by the ex c n tor or admini 'trator or the judap 1 th
hold r mu ' t brino- ug in t he appropriat court th reon ~vi thin
thre months alter tb date of its rejection, if it b, tb.en due or
within two months after it b come due, otherwise the claim' i
for ver barred.
Judgment r ndcr d ·1gai11._t the deredent in hi lifetime, or after
bi dee a"e. on verdi t urior to his deceat-t>, mu t b, pr ented a in
any oth 'r c_lai~1. _1To laim can be allo•vcd wllicb is barred by the
tatute of l m1tnt1o'l Original from
3

' "Ll

UNIVERSITY OF WASHINGTON

57-1

BA .. KI JG AND CO~L'\IERCIA L LA WS-C LIFOR IA.

Claim ao-ain t the e~t at e ilre paid in the foll owing orier: (1.)
:Fu11eral expenst s. (2.) T h e expen e of last sickc:e s. (:3.) DebL::i
ha Ying preference by the 11.tws uf the United tates. l 1.) J udgments rendered again t the deced ent in ht~ li fet ime and mortgag
in. the ordtr o1 their date. (5.) All other demand agaimt the
estate.
Collateral. ( ee P ledge.)
Conveyances . An e,_,tate in real property, other than an estate
at wm, or for a t rm not exceedi n~ one year, cau be tran ferrecl
only by operatioa t flaw, or by an in trument in writing, sub cr ibed
by the pttrty di~po ing of the eam e, o r by bi agent thereunto
authorized by writing.
A fee i mple title i presumed to be intended to pas by a grant
of real property, nnles it appear from tr1e g ran t that a les8er
e tate wa intended.
The proof or ackno wledgment of an instrument m ay be m ade in
this 'tu.te within the city, county, or district for which the offic er
wa elected or appointed, before either: (1) A j ndge or clerk of a
co urt of record; or (:2) a coun ty recorde r: or (8) a court co mmit:1sioner; or (4) a notary pub:ic; or (:'J) a justice of the pea('e.
If taken without thi State, hu t within the United Statf:'s, and
within tbejuri d 1c 1ion of the officer, be fore eitht·r: (1) A justict',
judge, or clerk of any court of record of the United tates; or <:2>
aju tice, judge. or clerk of any cou r t of record of any State; o r Ui)
a c immi sioner appomted by t he gnvernor uf t hi s State for that
purpose; or (4) a no tary public; or (5) any 01her officer of 1he St., 1e
where the acknowledgment is JUade, authorized by its laws t o tak e
·
such proof or acknovvledgment .
Ackno wl edgments may be taken withont tb e United Statel" ,
before either: (1) A minister, CO ll1misE ionl'r, or charge d'affai res
of the Ui ited States, resident and accredited in the country wh ere
the pro f or acknowledgment is made; or (2) a consul, vkecon~ul, or consular a~ent ,,f the United :States, resid en t in the
country where the proof or acknow ledgment is made; or ( 3) a
judf!e of a court of record of the c~:rn1;1try where. the proo f (,r
acknowledgment is m ade; or (4 ) comm1ss1oners ap,,umted for such
purposes by t he governor of the State, pursuant to special statutes;
or (5J a notary public.
Officers takiug and certifying ac knowlectgm ents or proof of
in8trnments for reco1 d mu st a n tlll'nticate their certificates by affixing thereto t beir signature, follo wed by the name of their office;
also their seal uf office, if by the laws 01 the ~t ate or country where
the 'acknow ledgment or prouf is taken, or by authority of which
they are act ing, they are reqnired to have official seals.
If acknowledged before a jnetice of the pl·ace, to be u sed in any
other cou utry t han the one in wh ich the justice resides, 1t must be
accompanied by a certificate of the clerk of the co unty showing that
at that time tht-> justice w as authorized to take the !'lame, and th a t
the clerk is acquainted wi t h his handwriting, and that t he signature
is genuine.
An officer taking proof of the execution of any in 8trument must
in bis certificate indorsed t hereon or atta c bed t heret o, ~et forth a ll
the matters r equired by Jaw 1 o be done or known by him, or provt·d
before bim on the proceeding, together wi th t be nam es of the
witnesses examined befor e him, tbe1r places of residence respectively
and the ubstance ortheir te:stimony.
Every conveyance of real propert.y, acknowledged or proved and
cer1ified and recorded as µr e~cribed by law, from the time it is fil ed
with the recorder for record , is cnnstructive notice of the contents
thereof to snbsequent purchai- ers and mortgagees. And eve1 y
conveyance of real property oth er than a lease for a term 11ot
exceeding one year i s void as against any sub ·· qnent purchaser or
mortgagee of th ... 13ame property, or any par t thereof, in good faith
and tor a valuable con~ideration , whose conveyance is .first duly
recorded. And the ter m ·'conveyance" as herein nsed e m bra es
every i n8trument in writing by which any e~tate or interest in re:Il
property is created, aliened, mortgaged , or 1n cnmbered, or by
which the title to any real pr -perty may be affected, except will"' .
Where a per~on purports by proper in-t~·ument to_grant real_property in fee ~implf', and subsequently acqmrei:; any t it le or claim of
titl e thereto the same passes by operation of law to t he grantee or
hi successJrEl . aud a fee simple title is presumed to be inte nded to
pass by a grant o f real. property, unle s it appe·1 rs from the grant
that a le 8er e tate wa::: mteuded.
In truments entitled t o be recorded mu t be recorded by th e
countv recorder of the county in which the real property affected
there by is situated.
Corporations. Private corporations m ay be formed by 1he
voluntary a · ociation of any fi ve or more persons, in the manner
pre cribed by etatute. A majority of ucb pereons mnt:it be re 8itate. Private corporation may b e form ed fur
dent of t hi
individual!:! may lawiully ae ociate themwhich
for
e
any purpo
.
.
selves.
Before the ecretary of tate 1 sue to any ra1lroad, wagon-road,
or telegraph orporation a certiftc~te ?f t h~ filing o_f a r~i cle8 ot
incorporation there mu t be filed 10 his office an aftida\l t of the
pre ident, c~etary, or t re a nrer named in the ar ticle", that t he
required amount o f the capital etock thereo f has been a.ctnalJy ~n bscribed, and 10 per cen_t. the reof actually paid t o a trea urer for the
benefit of the corporation.
Upon fili n g the articles of incorporation in th e office of the
county clerk of the county in which the principal busi_ne R of the
company i to be tran ac ted, and a copy th ereof. certified Dy tbe
county clerk, wi th the ' ecret~r:y- of ta_te, and t~e affidav it above
menti ned where nch affidant 1s reqmred, th e t:-ecretary of tate
mu ti u • to the corporation over the great Bf'al ot the State acertifl.c•1te that a copy of the article containing t h e reqnired tatement
of tc1 c t ha been fi led in ~i offic~, an d thereupon the per ons
igning the articles, an d then a, so c1ate and suc~e 8ors, ba_ll be a
b ody politi and corporate by t he name "tated m the cert1.ficate,
it i in the artic)es of in_cc:>rand for a t erm of fifty year , un!e
poration otherwi e rated, or m the code oth erwise specrn1ly
.
.
.
.
provided.
A copy of any articles of mcorporat10n :fi.l d m pur uance of t h1
chapter and c rtified by the S cretary of tate , must b receiv ed
in all the court , and other places a prima facie vidence of t be
fact the rein tated.
Liability of Stockholdel'S. Each stockholder of a corpora t ion
i innivirl uaily and per on ally liabl for such proportion of its
debt nnd liab ;l 1ti a the amou nt of tock or h·1re, o wn d by him

b ear to the whol~ of t he &nb ' cribed capital stock or h a1 e of the
corporation, and for a like }Jroportion only of each debt or claim
again t the corporation. Any creditor or th e corporation may instirockhulders for the
tute joint or several action against any of it
proportion o1 his claim, payab e by ea ch , and in uch action the
court mus t ascertain the proµortion of the claim or cl bt for which
each defendant i liable, and a e-ventl j ud o-meot mus t be rendered
against each in conlormit y therewith.
If any stockbolde1 pays bis µ1 opor tion of any debt dne from the
corporation incurred while be was . uch sto khold r, he is relieved
from any further pert-unal liab ility fo r euch del>t; and if a n action
ha been b rou ght again st him upou Eucb clebt, it l all be dLmi ed
as to him upon bis p ay ing the co:l tS, or ' ucb vr oportion thereof
as may be p , operly chargeu bl e airnin8t him.
The liability of eaeh stockholder i determined by the amount
oft-tock or t-hn re own ed by him at the tim the debt or liability
was incurred . and such ia.bility i ' not rel a d by any subsequent
transfer of tock. Th e term" tockbolcl r, 'a n eel iu thi!:! ection,
shall apply n0t only to such per on H ' appear by the book of the
corµoration to be uch, but also to every equitable owner of tock,.
although the ame appear on the books in tue name of another, and
a lso to every µersvu who bas advanced the in~;allment" or purcbaee
money of i:-tock in the name of a minor, so long as the latter remain
a winor; anrl a.l""o t.o every guardian or other tru tee who voluntarily
invests a uy tru~t fu nds in the stock.
'l'rn t fund in the ha ud::i oJ a g uardiau or trustee ball not be
liable under the prov1~ions of tllii:; section by rea on of any uch
investme1Jt, nor shall the pL·r on for whose benefit the inv tment is
made tJe responsible in re pect to the stock. until he b ecomes competent and able to ('Ootrol t:!:ie same; hut the re pon:-:i bility of the
guardian or trnstee making the investm n t sball continue until
that period.
Stock hel d as collateral se curity, or by a t ru stee, or in any other
reµre sentative capacity, does not make t he bolder thereof a tockholder within the m ean in g of this section , except in tb e ca e abov
mtmtioned, so as t o charge him with any proportion of the debts or
liabilities of the corporation; but the pledgor, or per:-on, or es tate
represented is to be deemed the i-tockh, ,ld er as respects such liabilit y . In corporations having no capital stock. each member i
indiv idually a n d personally liable 1 or bis proportion of its debts and
liabilitie8, and similar uctions m ay be brought agai1~ t him, either
alone or jointly with other member8, to enforce su ch liabil ities a
by this section may be l)ronght a!lainst one or more tockholder ,
and simi ar iudgments m11y be rendered.
The liabili ty of each stockholder or a corporation formed under
the la " ·s of any other State or Territory of the United tat es, or of
any foreign cou ntry, and doing llnr-iness within this State, hall be
the same as t he liability of a ~tockholder of a corporation created
unde r the con stitution and laws of thi State.
Costs. Non -resident plaint iff may be required to give securit:-y
for costs.
In general, costs are allo wed as of course to the preYailing party
Courts, Jurisdiction, etc. Justice courts ha-ve civil juris
dict ion: 1. In actions a rising on contract for the recovery o,
money only, if the sum claime:1, excl nd,· of interest, does not
amount to $:300, and the jurisdiction of aj n:-tice of the peace in all
cases wbere mon ey judgment is recovt·rable is lim ited to 300.
2. In action fur dama!!eS for injury to tbe person , or for taking~
detainiub, or injurin g p 1.' rsonal property, or for injury to real
propert y, where no issL-1.e is raised by th e ventied ant:iwer or defendant
involving the tit le to or poeses~ion 0f the same, if 1he damage
claim ed do not amount to $300 dollare. 3. In action to recover the
possession of 11ersonal property, if the val u e of uch pro perty doe
not amo unt to $300. 4. In act io11s for a .fine, pen alty, or forfcitnr
not amoun t ing to $:30U given by tat nte, or the ordi nance of an
incorporated city or town , where no issue is rai ed by tbe arn~wer
involving t he legality of any tax, impost, a se menr, to ll , or municipal fin e! . 5. In actions uµon bonds 11r uudertakings condi tioned
for the payment or money, if th e um claimed does not amount to
$300, though t he pennlty may ex 1 eed that um. 6. T o take and
enter judgment for the recovery of m on y on tlte conf , ion of a
defendant, when the a moun t confessed, exrln ive of intere1--t. does.
not amount to $:300. 7. Al::io conc urrent j urLdiction with the
Superior courtl" , within their re ped ive to wn hips
In action s of forcible entry and detainer. wher e the rental rnlue of
the property euterecl upon or unlawf11IJy det ain ed doe~ uot xceed
$25 per month , uLd the whole amouut 0f damage claimed do not
exceed $200.
Also in actions to en force and foreclo se li e n on personal property, where neither the amount of the lien n or the , alue of th
property amounts to $300.
Superior Court. The jnriediction of t h e Superior ourt i of
two kind E-: 1. Original. 2. Appella1e. 'rhe upel'ior omt has
origin al juri"diction in all ca e in equity; in a ll civ il ac tion in
whi ch the subjt ct of litigati o n Is not capabl e of pecuniary estimation; in all case at law which involve the title or po " F ion of
real property , or th e legality or any 1ax, etc., and in all other c11ses
in wh ich tbe demand, exclu:-ive of interest or th vain of the
prop rty in controv ersy, a mount to $ 300; of actions of for ible
ent ry a n d detainer. ot proceeding in in olvency; of action 11 to
prevent or abate a nui ance; ot all matter of probate, of divorce
and for annullment of marriag e; and of all such p cial ca es and
proceeding a ar e not other wi se provided for.
Th ey al o have power to is ue writs of ma,,darnu certiorari, prohibition. quo war1'anto. and of habea corpu", on petition by or on
b ehal f of any per on in actual cu tody in th ir re p ectiv e countiP .
Injunctions and writ!:! of probibitiou may be i ued and rved
on legal holid ay and n on-judicial days.
upreme Court. Ha original and appPllate juri diction. In
tbe exer i e of orj ginal juri!:ldiction it hall have pow er to is ue
writ of mandalnu , ce1'tiorari, prohibition. and hab a cO?'pus: it
sh all also have pow r to i · u all other writ necessary anct proper
to the compl ete xerci e of its appellate juri diction.
Th e court of t he tate are pr esumed to be always open for the
tran action of buEiine s.
The up re me Court holds six fie sions annnallv. At acram• nto,
in May and ov mb r: at ' an Franci co, in J.-i'nu ary and July· at
'
L Angeles, in April and Octoher.
owed
Day of Grace •...Qrig~f)_abff~ffi<e are not all

UNIVERSITY OF WASHINGTON

BANE~l G
Depo itions.

Th

a po,ition

of a wi tn

D
nt

575

O~IMER 'L\.L L ,Y -CALIFOR 'I
f thi.,

't11te

ma b, tnken upon a corn mi fioa i, 11 d from the conrt under tl1

al of the ourt, upon an ord r o f the conrr. or a j ndcre or ju 'tice
th 1:eof, on thr aµplieatioa of ei1h'r party, npon 1h'e day .. ' p r Yio 11
notice to th other. If th
onrt be a jn tice· court th commi~ion hall hav' attached to it a
rtiflcate und r ea! by the ountv
cl rl- of ai_d 1_1 nn~ y to the eff ct hat the p r on L ui11g the sa111·e
wa an aelmg J nst1ce f the peace at the d·1te of th
ommi, iun.
If i ucd t an y µla within t h Cnitc-'d tatt:'", it may b direc1ecl
to a P. r,on agr_ d. upon by the parti , or i' they do not agrev,
to any Jmlrrc or JL1St1ce f th p ac or commi ~ion r -elec1ed hv
the cnurt, r jndg , or jnstic i sning it. If i-: ' U d to any conntr·y
out of th Uuited 'tar t:i, it may b> l1r ctec.1 t a mini t r. ambassad or, con ul, vie - on 'nl , or cornrnlar ag nt of the Unit d Stntes in
such country, or to any per on agre d upon by the parties.
Th tc timony f a witnc.. , out of thi ~ rate ma:, b" taken 1w
d position in nn n tion, at nny tim af t< r the t3enice of' th -..:t1mmo11"'
o_r rhe app nran . of the d f ncla.ot_: in a special proc ding, at uny
time aft r a qne tum of fact ha ansen tb r in .
Depo ition must be taken in the forn, of qne tion and answer,
and the wo1 d of rb e w 1tnc ' , must b writ ten down unle"' th e
partie agre to a differ nt mod .
D epoeWon in this lat . 'l'hc> testimony of a witn ~s in thi ,
tat urny b taken by deposition in u.n uction at mw tiUJe
after tb rrvi eo f th ' nmmon o r the appeara11ce of tbe defenda11r
andina p cialproc dingafteraquestiouoffa ctha ari : ntbereiu'
in certain enumerattd cases.

Depo~itions for ?tee out of th ~tate. Any party to an action
or special proceeding in 1:1, court or before fl ju aae of a sis1 t-1·
tare, may obLain th t Himony of a witn s::, r e iding in tbis Statl',
to be u ed in nch a tion o r pro
ding, in tb ca . ., mentiouetl
followino-:
If a convniR~ion to take s n ch te"' timony bn heen is ,,ea from the
conrt, or a jud 0 ·e thereof, b 10 which suchacti nn or proceeding i-pending, on producing the commission to a jnd_ge of the upedor
Court wittl u.n aflid,l\'it 'i=tlisfa rorv 10 him of the materialit 1 of the
te timony, he may i sne a t->ubpoeirn, to the witness, r quirino- hi111
to appear and testify before tbe commie ion r namc•d 111 tht commission, flt a p citied time and place.
If a comm, ' sion ha~ not be n i-sned nnd it app a r to ajndgc of
the Sup rior Cour t, or a ju,tice o f the peace, by affidavit atii:;factory
to him: (1.) 'I'har. th, testimony c,f tbe witne,-s is mat rial to either
party. :2. l That a commil" siou to take t etimony pf -nch witne:-s
ba not been ii-: ned. (3.) That. according to the law of th
tate
wher tb nction or p cial proceeding is p nding, tbe deµo it on
of a witnes ' tn,k en uilCI ~r sn b circumstance , and bcJ'or<j such judge
or jt1 tice will be re ei v din an u tion or proceeding, h mnst i::,:1511
hi subpoena r qnirin g the witne ~o app ar and te tify before llim
at a pecified ti m e and place.
Upon tbe appearnn e of the witne . the judge or jn tice mn t
can Ee bi tettimony to b taken in writing and mu<.:t certif y a 11d
transm It tbc sam to tb cou rt or judge before whom tbe net ion or
proce ding is pending in such mann r a 1he law of that S eate
require .
P erp tuation of T 8timony. The t ::,:timony of a witne~ ' may
be tnken nnd µ rp tuated in tbe following manner. 'I'be app1icant mu t produc,· to a jndge of tb :--up rior onrt a petition \ ' 1 rifi t by the outh of I he appl icant, tu ting: t 1.) That the applicant
exp cts to be a party to an action in a onrt of tbis tHate, aud
in sucb case the names of tbe persons whom he expect will b~
ad ver::,: partie ; or (2. ) That tb e proof of ome fact is nee ~::,:ary
to perfect th title to property in which be is int er sted or to
establish marriaa , rlefc nr, beir hip, or any orher ma1t r which
may hereafter becom • material to est a blisb, tbongh no uit may at tbe
time b anti ipated, or if anti ipated, h may not know the partie
to uch ·nit; and (3.) Tbe name o f the w ita s to be e:s:aw iued,
hi place of r siclenc , and a general outlin of t he facts e:s:pe ted
to b prov d. Tbejud(Ye to whom ,-u b petition is pre ented must
make an order allowing the examination , and d 'i!rnating th officer
before whom the am must be cal-en . and prescribiug a notice to
be given, whi ch notice. H th parties exp tant are- known and
reside iu thi ' d a te, mn t b personally served , and if nnknO\rn,
such noti e mu t b
erved on th lerk o f th county whe, r the
property to be affected by .. nch vicl nee i ituated,
th jndg;e
making th order r' id , as may be directed by him and by
publicat.ion thereof iu om n w paper, to b designated by the
judg , for the same period r quir d for the publication of nmnwns.
The jndae mnst also de ignate in his order th
1 rk of the county
to whom the d eposition mn t be retnrned wh en taken .
'rhe person appointed b y th e judge to take the depositi, ,n i
authorized, if a resident of this tate, on receiving a copy of the
order of the judge, a d of the notice pre cribed in the la~t sec1ion,
with proof of it p rsonal serYice or publication; or it a re ident
without th State, on receiving the commi sion m entioned in the
next s ct ion with proof of like~ ervice of publication of the no tice;
to take the depoEit ion of the wi tn es named in the or der o f the
judge. or in tbe commission or if more than one wi 1ne
is thu
named, of such of them a appear befor him, at the tjme de i anat d, and the taking of the ame may he continued from time to
time,
The examination mu t be by question and answer, and if t h e
te timony is to be taken in a nother tate, it m ust be taken upon a
commission t o be i ~u ed bv the jndge allowing the examina1 ion,
under th8 s al of the court of which he i jndge, and upo n interrogatori , to be ettled in the ame manner as in tb e ca e of depo
ition t k n under commis ion in pendina actions . unle
the
partie exp ctant, if known, otherwise agr e . lf sucb. partie:- are
unknown. notic of the ettlemen t o f the interrogatories hall be
pnbli h ct in ome new paper for such time as th judge ball de ignate. Th d po~ition whe n completed, must be cru·efully read
to and sub cribed by tbe w tnes , then ce rtifi d by th officer or
per on tak ing th same and then shall b seal td up and delh'ered
or transmitted to the clerk of th coun ty d ignat d in the order of
the judge allowin~ tb enimination who hall file the same wben
recei vecI. Th e juaae allowing th exam ination shall file with the
clerk the ord r for the examination, tb petition o n which the
a.me wa grnnt cl, with p roof of ,·r Yice of the orclt>r and noti c·.
The commi;;; inc r will then attach th comrni i n, in terroµ-atori , croR -i11 t rrogatorie , and x h1bitR to the d position , iuclo e
the ame in a tr ng env lope, and dir ct snme t the cl rk of th

or

uperior ourt wh ere the can e i to be trierl. H e w ill aJ-:o indorse
the title of the cause aero s th fa e of the enYelop .
The packag . thu "' indorsed and direct d m:iy be em by mail.
Des ce nt an<t 1 >istr ibutlon. Prop rty, both real and per onal~
of an iutt' tat Jlll"S
to bi::,: heir"' . A surviving w ife ucceed t->
the ouc-half of th co m mnuity property, i. e , all propert ' acqnirerl by bn h a 11d o r ,y ,f dur\ng tile 11 1a rrin ae , w_hi h do~~ not
includ pr_op rty acquired ~y ~1tt1er bnsoand or wife by git_r. bequest clens or de:-;cent which 1s eparat prop rty . Dower m e re ' t do snot e.:s:1. t
The pnrnte estate i dh1 tribnted as f1 1IO\YS:
If th dee d nt leave a E1urviYi110- husband or ,nfe and only one
ch ild or tbe lawfol isr-ue o t on <.:b l Id, in equal bar to the su n ·iviag h;kba,1,d or wif and child or ·ssue o f sncb child. lf a eurviving
hu~bancl or \\'ife and more 1 b an one child, or one hild liYi ng and
the la,, fol bsue of one or mo re oeceas d children. o • e-tbird to tbe surYiving llu ' band or wife, and the r ~n11:iinder in qua] shares to the children and to the la wful i ' Sue of any d eceased child by right of r pre::,:entation. But if tll r b no cb1ld living rbe r emainder goes to ~ll
the lineal de"' cendants, and if tbey are in the dl m degr e of kmdred t o the decedent they share equally. othe rwi se by rieht of representation. If th decedent leave ' no ~nrYiviog hu band or wife,
the whole tate goe, to the issue-the is ue ot chil dren ta kin a by
right of representation.
If there L no i sue the e,- tate goes one-half to the surviving hu sband or wife and tb oth r half to the fath er and muth er in equal
sharr ._ , or, if on be dead, to the survivor; if there be no father or
mother. then their on•·-b alf g e~ in equ al sha res to the hr ·thc·rs
a nd si_,ten; or to their r pre entatiYes. If there is no i sne, or husband or wife, the e ' t,• te goe to the father and moth r. or th stuvivor, or, if both bed Hd, then in qua! F-bares to th brother' and
sister!', and to the tiildren of any d cea~ed L,rother or si ster by right
of representation.
If tbe clecedeut lea,· a survi dn o- bu band or wife and neither
i :me, fa ther, motber brother, nor si ::-ter , th " ·bole ebtate g oe to
the su rYidng husband or wife.
If the 11ecedent 1 ave 11eitb ·r is-:ue, husband wif . father,
11101her, brother, nor ::,ister, the cstu t must g o to then x t of kin in
eqnal degree.
'l'he e are tbe principa'i provision of the law o f succe ' ion,
Tenancy by tb courte~y i not known to our law. If th person
dies testate, all pro p rt.y paeses a directed by the " ·ill .
Distress for Rent i nnt kn \Yl1. but j ndgm nt for r en t and
damacre for unlawful detainer may b had, and property not
exempt from execution may b e leyied upon to sati fy t he judgment.
Divorce. A vincu lo matrimonii may b decreed by th
uperior
Court for adultery, extreme cruelty, \\·illful de ertion, willful
neglect, habitual i11rempernnce, or c, nriction of f I ny. A marring may be annulled: l. If the pa rty F- eeking the a nn u]lmen t
was 1111der the age of legal con-- nt. aud the m arria ae wa co11tracted without tb e consen t of pare111 s or guardian· 2. If the
former husband or wife of either pnrty w a"' living and such
marriage wa in force: :3. If either party \\'1:1 " of na ound mit d;
4. If tbe con eut o f eith r par y was ob tained by fraud: fl. lf
con ent wa obtainect hy force: 6. If either party w 'l.S phv8ically
incapable of entering t h marriage tate.
·
Dower. No es rate i allow d tbe bn"'band a tenan t by courte y
upon the death of his wife, nor L any e tate in dower allotted to
the wife upon t h e death of her husband.
E tates of Deceai;.e d P e rson . ( ee Descent and Distribution, Claim Against Esta! ~-)
Ev i<lenc . Parties to all a tion s or pro edings may te tify on
their own behalf, ex ep t in ca e against executors or adrni niHrator for claims of m oney demand against the estate which fl ru e
befo re th death of tbe party. A ht1sband can not be examined for
or aaainst th wife w it hout h r con ent. ~or tb wif for or
again"'t th husband with o ut hits cons nt. Thi doei-: not apply in
action of one against 1be otb r nor to a criminal action for a ctime
committed by one aaain-:t the other.
Execnti~ns ma iF- ue _immediately upon the ntry o f j u dgment.
o n~ht of ta y e.s:1 t e:s:ct>pt by rrler o f t he conrt in its
di er tion when appeal" are abo u t to be taken or new trial appli ed
for.
A right of redemption exist in case~ of ._ale of real e~tute npon
ex cution, and the defendant may rede m within six m nth by
payment of the am o nnt of judament and inte re~t at 2 p r cent per
month. A, top rsonal property, no right uf redemption e.:s:i,-t- .
Exemptions. The follo w ina prop 1ty is e.:s:ernpt from :s:ecution. Chair", taole , df'sks an<l book . t o the value of $200.
2. N ee srnry bou ehold, table and kitch n furnit ur e belongino- to
th jndgm nt d btor, in lndino- on F wing machin , ._,tove . i:toYep ipes_ and fnrnitur '. w a~·ing apparel b d~ bedding and b ed!- teads .
hangmg p1 tures, 011 pamtrng and dra,Yrng drn wn or paintrd by
an y member of the family and famil v porh·ait , and their necessary
fram ~ . provisions actually provided fo r in dividual or family use
sufficient for tb r , months, and thre cow and th ir s uck in g
ca lv s. four hog with 1heir st1 king pigs, and food fo r uch cows
and boas fo r on month.
3. The farming ut ensils or implement ?f husbandry, also two
oxen or two horse , or t wo mul e , and th 1r harnes ; on cart or
wa aon , and food for uch o en , bor e , or mul
for one month•
also all St> d, o-rain. or veg tablt'S, artually provided, re erved o r 0 ~
haud for t h pnrpo e of plant iae- or eowmg at any time within 1he
en~uing ix months not ex ce diog in Yal11e t h e sum of 2 o. and
ev nty-fi v b_ee hi\·~s, and one. hor e and v bicle b longing to auy
per on wh o 1s maimed or c nppJ d, and t h e a m e i necessary
in his b u "'ine .
4. Th tools or irnpl men t of a m echanic or artisan neces ary to
carry on his trad : tbe notar ial seal, r cord ~. and o:ffl. e furni tur of
a notary pnblic· the instrum at _, and check of a nro-eon physic_ian ~n· yo~·, or den ti. t, n e~t s a~·y to t b ex rci
f t heir prof _
10n, w ith their p rofes, 10nal llbrarie and nee ssary offic fnroiture·
the professional libraries of attorneys, judg "' · mini t rs of th aos:
pel, ditors, chool-t a cher , and rnusi -t •acb r and thei r n ies"a ry office furniture; also th musical in-.:trum nts of mu ic-teachrs a ctually us d by th m in g ivina in truction : and all th e
ind x , ab tract , book , papers, man_,, and offic fnrniture of a
sear her of re corr Dffi1~ffl§ffr8~ ns din bi ._ profe"' i n,
1

UNIVERSITY OF WASHINGTON

76

BANKI XG AND 00.JilHE RCIAL LA.W -CALIF ORNIA .

5. The cabin or dwelli11g of a rniun 1wt exceedina in ya,Jue tb
um of "'500; aho hi ' lnices, pipe . hoe:e wind la :-, d e rnck, cars
pnmw, to?l., impleme_n t .. , aud apµlia~ces _nt•Ce" ary for currying
o n any mmmg op eration" . not exceeclrng 111 value the aggregate
Bum of $500: and two horse8, mule:::, or oxen . wi th their barnes",
.a n~ food fur same for. one month, wb. n ue_ce~ ary t o be med in any
whim, wmdlass, dernck. car pump, or ho1strno- gear, and al:-o bis
mining claim, actually \\·orked by him, not ex;eed ing m value t he
sum of $1,000.
6. Tvro horses, two ox<'n, or two mul es, and their barne s. and
one ca rt or wagon, one dru.y or truck, one c11upe, oue bal'k or carriage for one or two hor~e . by the u1:3e of \\'hich a cartman, truckman, huckster, p eddler, hackman, team- t er, or other laborer habituftlly earn his living, anct one horse with Yehicle anrl harnes~, or other
equipmen t u ed by a phy ician, s1 1rg on, constttble, or minis ter of
the go,-pel in the legitima e practice of Iii:- profession or business
'
"·ith food for uch oxen . horse , or mules for one month.
7. One :fi hing-l>oat 1111d net not exceed in!.',· 1,he total n1lne $500,
the property of any :fi herman by the lawful u e of which he earns
tt ltvelihood.
. Ponltry, not exceeding in valne $25.
9. The earnings of the judgment debtor for his personal ·enices
rendered at any time within thirty day next prPcccling the levy of ex€cution or attachmen t, where it appeu.•·s by tile dehtor'8 affidavit or
thcrwise, tb.tt such earnings are neceseary for the Ul'.'lC of his fami I y re,-iding in this f-tate, supported in whol e or iu part by bi~ labor;
but where debts are incurred by any snch person, or 1)is wife or
family for rhe co111mon necessarie s of life, the one-half of uch
-earniugs above mentione l are ney, rtbele,s subject to execution,
garnie-hm ent, or attachmen t to satit--fy debts so incurred.
10. The share::; held by a member of a homestead aseociation to
be iucorporm ed, not exce·ecting in value $1:000, if the p erson holding
the shares i not the owner of a bonH·stead under the laws of this
tate. All the nantical instrnrn1·11ts and wt·al'ing-a pparel of any
master, offi 'er, or Reaman of any steamer or other Yest:'el.
11. All moneys, benefits, privileges, or immnnitie s accruing or
in any manner grow ing out o1 any life insurance on the life of the
debtor, if the annual premiums pnid do not exceed$50 0.
12. All fire engine~. hooks and ladders. wir b. the carts, trucks,
earriages, ho'-'e, buckets, implemen ts, and app1u11tus thereunto
appertaini ng: and all forniture anrl uniform,; of any tire company or
departmen t organized under any law of this State.
13 . .\ll arms, uniforms, and accout re111ent~ 1equired by law to
be kept by a n y person, and also one gun to l>e selected by the
~ebtor.
14. All court housee, jails, and towu, county, and State bnildings; all public buildings, ~round:-, places, e1 c. No artic le, how,eyer, or species of property mention ed in this section, is exempt
lfrom execution iss1wd npon a j 11dgment recovered for its price or
upon a judgment of forecloenr e of a mortgage thereon.
False Pretense s. (See Actions and Arrest .)
Forn1s of Acknow ledgmen t, etc . (See Oom•eyances.)
Fraud. (See Actions, Arrest, etc.)
Garnish ment. Upon receiving in formation in ,,Ti ting from
the plaintiff or his attorney that any person bas in his pos::, ess 1on,
,or under bis control any credits or other pnsonal property belonging to the defendant or is owing anv debt to the defendant, th e
~h riff must 1:=nve upon sncb per,..:on a copy of the writ and a 11otice
that such credits, or other pro1wrty or debt~, as the case may be,
are attached in pursuance of' 11c11 writ. All persons having any
uch property at the time of serYing of snch writ, nnl· ss it i delh·ered up or transfened or paid to th e sheriff, shall he liable to the
amount of uch credits. property, or clebts, until tbe attachmen t be
discharged . or any judgment by him rt ·covcred be satisfied.
The garni~hee may be rited to appear before the court or j ud ~e
·
and. be examined on oath respecting :-uch property.
Holidays are every Stmday, the 1st day of Januarv, tbe
'2~d day of February, the 30th day of May, the 4th day of Juiy, the
·9t h day pf ep tember, the lsr. Monday in October, the ~5th day of
De cember, every day on which an election i~ held througho 1t the
'tate, and everv day appointed by the Pre ident of the United
rate or by the Governor for a pn blic fa:-t, thank giv ing, or holiday.
If 1he 1st day of January, the 22d day of F ebrnar:v the 30th day
of ::\Iav, the 4th day of July, the \-ltb day of September . or the 25th
<lay of Uecemb r fall upon a Sunday, the Monday followi g i, a
holiday.
Homeste ad. The homestead consists of the dwelliug house in
which the claimant resides, a11d the land on which the same is
situated.
If the claimant be married . the home tead may be selected from
the communit y property, or the e parate property of thebn~ban d,
-0r ,,itb the con l·Dt of the wife from her Elt'parate property. When
the claimant i ' not marned, but is the bead of a family the hometead may be St·l c1cd from any of hi or her property.
The llomrf-tcad ran not be Heleclcd from the eeparate property of
the wife \\"ithont her con eut. ~hown by her making or joinina in
mah.ing th• declaratio n of home tead.
'l'he hom ' t ,ad it. exempt from xec ution or forced sale, f xcept
in nth-faction or j11dgm 'lit' obtained: 1. Bdore the declaratio n
of l1omestead wai:; filed for record, and which con titute li en
upon the premise . :2. On d ht1:s ecurecl by mechanic' s. contractor'8, :ulJ-contra rtor's, arti an· , architect' , builder ·, laborer's of
c,· 'l'j clae , material men' or vendor's lieu upon the premi et:1. :1.
ecured by mortgage - on the premi c , ·xecntcd and
011 del>t
acknm, led~ecl by the hu ,·baud and wife or by an unmarried claimut. 4. On debt ·ecured by mortgag(; on thr premi es, execnted
ancl recorclccl b •fore tll dcclarat:o n of home tend wa filecl for
rccorcl.
'l'lle home ' tead of a marri, d pr 011 ran not be ronveyed or inthe in trum •nt hy wbi hit, i c mveyed or incum cum berea unl
berecl i xecnted and acknowled ged by both hu ba □ d Hnd wif .
IIom read may be~ >lectecl aud claimed: 1. If not ex:ce edi □ !!
5,000 in va ue by any head of a family; 2. If not exceeding $1,000
i11 valu by another pc, ri n .
The phra e •l heacl , ,fa family,'' a here u ed include within it
meaning: 1. The hn band. where the ciaimant i , a married person.
. En'ry per on who ha re iding on bi. premi c' with him orb r
and nod r his or her c •re and maintenan ce, either his or h r minor
,child or minor grand-chil d, or the minor child of hi or her
decea,ed wife or bu band; a minor brother or ister, or minor child
0

o f n dece11 t-d brother or Ri~t er; a fotlier, mother, grnudfat lier, 01
grandmoth er : the father. mother. grand atber, or o-raudmoth ei of a
deceased h u -band or \ 1fe; au unmarri ct si ' t r or any other of the
relatfr s mentioned in tbi section who bave attained the ag of
m ajority und are unable to take rare of or upport thernsclve,:,i .
Inso ,vent Law s. An m olveut debtor owing debts exceeding
in amo unt the Stlm of 300, may apply by p etition to tbe ., uperio1
Co u , t of the county in \\'hich be hc1s re::3iaed for ix month8 next
precl'ding tlie :filing of bis petition. to be di:-cbarged from bi8 debts
blld liabilities. Iu hi uetitiou he . Ji;-111 s t, forth his place of re idence, nis iuabi!i1y to µ,q all his debts in fnll, hi ' willingnes to
·urr<-'ndt>r ail his e tate and t:ffect~ tor the be1 1e:fit of hL creditors,
and bis desire 10 obtain a diEcharge from hi debt and linbilttie~,
and sball ann x thereto a ia:chednle and inventory and valuation. in
complianc e wi, h the proYisiow of this act. 'fhe filing of uch
petition shnll be an act of in~olYency, and thereup on "' nch petitioner ball be aclj udg, rl au insolv\·nt debtor.
An adjL1dicati ou of io >lvency rnay be mnde on th~ p, tition of
tnte, whose debt"' or tlefive or more creditor._, resident of thi
mands accrut-cl in t bis State, ancl amount in the nggrcgatL' to not
than $500 dollars; provided, tbut said creditors, or either of
le
1hem, or 011 the pet.iti· 11 of five o r more cre<.liturs of the partnershi p,
iu the manner provided.
The provh:ion:-: berein apply to corporatio n~, and in tl.te manner
provjded, the like p oceediugs .. hall be bac1 and taken, a are provided in the case of debtors. \Yheue ver any corporatio n i declar d
in ' olvent all its property and asset s11 all be ll1stribnted to the
credit ors; but no di charge shall be granted t,> any corporatio n.
At any time after the expiration of three month~ from t he adjudication of in solvency, the debtor muy apply to the court for a di ·charge from his clebte, acd th•· co11rr hall therenpon onlcr notice to
he giyen to all c1 edito rs who have proved their debts to appear 011 a
clay appointed for tbat purpo::;e, and show cause why a c1iRcbar 0 ·e
r-lwuld not be g1 anted to tbe debtur.
A cli::::char~e, duly gnmted nn,ier this act, shall, \,·ith the exception,.. me1Jtioned bereiu . rdeai,e tht-> deb tor from all claims, debts,
liabilit ieR demands, I'd forth in hi, schedule, or which ·were or
lldght 11aYe been, p1oyed agai11st his estate in insolvency .
P cnd i □ g proceeduu s by or ag;ain t anv pereon, co-partner ship, or
c,,rporatio n, 110 Hntute of limitation of this tate shall nm against
n claim which in its namre is proYable againt-t the e tate of the
debtor.
lnstallm ent LPases. A lease of personal property may be
made for a stipulated r ent accompa111ed by 1:1n agreement to make
title when a e-1ven sum is paid; but great caution must be nsed in
preparing such a lease.
Interest. Uulel"s there is a contract fixin g a different rate,
interest is payab' e on all mo n eyo at the rate of 7 per cent. per
annum af1er they become due on an io trnrnent in writing. 11nd on
moneys lent or due on any 1::·ettlernent of accounts from the day on
which the balance i- a1ccertained. A judgment. bears 'i' per cent. per
annum after rendition.
Parties may agree in writing npon any rate of interei;:t, and nBy
agree that if tile interest is not punctnally paid that it shall become
a part of the principal aud bear the ~arne rate.
Judgmen ts (see .A..f'tions) are liPns upou real estate of judgment debtors for two yeari-<, situated. in the co rr ntv whE:re the judgment is entered, or in th e county wbere a tra11script of the original
docket, certified by tlle clerk', may be filed with the recorder. A
judgment is not a lien upon personal property, but f-uch property
may be seized by execntion thereou. A judgment may be revived.
but. ie1 barrl'd by th e statnte of limitation within fiye year~, unle i:i
revi\'ed for that time. lt is revived by an action npou the jndgmetJt.
Leases of Persona l Property . (S ee Installmen t Leasec .)
Liens. (See Jl1echanic's Liens, Judgment8 , crnd E.recution s.)
Licenses Comm ercial traveleri:; haviri g their places of bn ine~s ont of tlJe St ate may be required to t1:1kc out a licen e, but this
is regulated by the different conuties of the State.
Limitati on of Actions. ( ee Judgment s.) If real e tak i
held adve rsely for five years, such adverse pos e sion ripen~ into
title, except against in f ants and persons under disability. Actions
upon judgments must be comm enced witbi11 five year . Action upon
contract in ·writing made within the tatc, within four year , ifmnde
out of the State, then wit bin two ycarl:3. Buok accouut~ or obligutLm , n ot in writi11g, two \ ears. Actions against officers in oflic c1l
capacity to recoYer property wro11gfnlly taken nrnia:t l><' commL'llC •d.
wi1hin six months. 'fhe ia:tatnte does not rnn dnring tlie time a
debtor is ab,ent from the tatc wh re the debt is contra ted or
pnyable in this State.
Limited or p ecial P::.rtner ship . may b, formed b~· two
or more p er ons for the transactio n of nny buein "R, except bunking or in uran ce. It may con ,j t of one or m r' per ' On called
general partners, and oue or more call cl sp' ·i11l partners. A certificate must be signeu, sho wing nature of bu.::ine 13, which are general and which are l)ecial partners, the arnount of ·upital tock
ea ch husconnib nted. 'l'be certificate muRt be' acknowled ged, a in
the ca e of deerl; mu t b filed in Ol( rk'8 ofiicP, and recorded iu
County Recorder's oflice. An aftidavit mu, t b · filed in snrne oflice
,-v ith original certificate, tttting the nm contribute d. rl'he certificate nrnst b e publish 'd in a new pap r once a week for four w ks.
'l'be genera l partners are liable aR nch. Th e contributi on of a
])"Ci11l partner i liable, bnt not oth rwi e nnl s be ha willfully
committed som e act in violation of the provisions named, or interfered with the bu inee of the firm. in which cases, and ome
other . h' may b, h ld as a genern l partner.
larded Wom en . A mani d woman may become a olc trader
uperior Court of the county in which he
by tbe judgn,cnt of th
ha resided for ix: month next prececlin2: the appli ation. The
hu ' ban cl of th ole t rader is not liable for ..any debt contracted by
h r in the co urs' of her, olc trader' bu-:in s unle s contracLed upon
hi written consent. .All property own c1 by a married woman
before her nui.rrino- and that afLcrward ncqnired by gift, b eqne t,
11 prop erty acquired
dcvi: , or d' cent, i her separate property.
by either bu ' band or wife aft r marriage, xcept in the manner
~bove specified, i communit y pr per1y. But when ver any prop rty
1 conveyed to a married woman by an in trunu•nt in writing the
pre umption i that the titl i thereby vested in her ash r eparnk
property. A marri (!)rijilmP.ftomay conyey witbont consent of her
0

UNIVERSITY OF WASHINGTON

BA KI G AND COl\LMERCIAL LAWS-COLO RADO.
husband, and i not liable for th d bt of h r hu band, but is liable
rontract d befor or after ber mal'l iao-e. ;::-h
may ontract as a f 111111e sole o as to bind her eparate p1 operty.
either hn ·baud nor wife ha nny int re tin the property of tb
other. Th' wife may mak n will of h 'r l'parate property. The
earning of th wir . nrc not liable for the debt of h r hu band.
'l'he cµarate proµerty of the husband i not liabl for the debt or
tbc wife contract d b for marriage. If t he hn buncl fail to make
pro,ision for the npport of the wife, a per on furnishing h r with
nece ' ary article for her upport may !·ecover the value from the
bu band. l\fani d women may hold and tran fer stock in corporation without the on ent of th hu band.
J.\,lechanics' Lien . :Mechanics material men, arti ans, architects, and labor r p rforming h1bor upon or furni 8hing mat rial to
be U' cl in the construction, alteration , or repair of any building,
wharf, bridge, or flnmc, railroad, or other trncture, ha Ye a lien upon
the proper1y; al ' O npon the land upon which the improvement or
structure is con8tru tecl. The lien date" from th e commencement
of th improvement or labor, or the date of the commencement to
furni h mftterials, and i o-ood against mortgage or incumbrance
subsequently attachin<:r. Claimant must fil e wiib the r corder a claim
etting forth the amount and nature of bis lien; original contractors
mu t file lien within i ty day , anrl any other person within thirty
clay , an r completion of building, tructu re, tc.
Moi.·tgag·e . ( ee Chattel J1Iortgages.) Any interest in real
property which is capable of being 1ransferred may be mortgaged.
A mortgage can be created, renew d, or extended only by writing
ex cuted with the fo,rnali~ie required in the case of a grant of real
proµerty. Every transfer of an interest in real property other than
in trn t made only a the . . ecurity for the performance of any act is
to b deemed a mortgage, and tbe fact that the tran fer wa made
subject to defearnnce on a condition may, for the purpose of bowing uch transfer to be a mortgaae, be proved (except as against a
subs quent purchaser or encumbrancer for value and without
notice) although the fact does not appear by the terms of the
in trument. A mortgage i a lien upon everything that pa.c13e by a
grant of the property. A mortgage does not eutitl the mortgagee
to the possession of the property. A mortgage doe n ot bind the
mortgagor per onally to perform the act for the performance of
which it is a -ecurity, u nles there i an e:s:pre s covenant therein
to that effect. The assignment of a debt ecured by a mortgage
carries with it the security. When a mortgage is sati fled or the
mortgage inclebtedne s paid, the mortgagee must satisfy the rnortgag of record under penalty. A morto-agee m ay for clo e the right
of redemption of the mortgagor. A power of sale may, however, be
conferr d by a mortgagee or any oth er person, to be tjxerci ed after
a breach of the obligation for which the m ortgage is a security.
Partnerships csee Limited 01' Special P artnerships) may be
formed for the transaction of any lawful bu ine s by two or more
per on , and the partner hip property, also the property of m embers
of the firm, is liable for all debts contracted by the firm in their
business.
Pledge i a d posit of personal property by way of ecurity for
the performance of any act. Delivery of the thing pledged is es ential to the validity of the bailment. Where t h e debtor bas obtained
credit or an exten, ion of tim e by a fraudulent mi represen tation of
the value of t h property pledged by or for him, the credit or may
demand a furth er pledge to correspond with the value repre ented;
and in default t h ereof may recover bis debt immediately, though it
be not actually due. When the p rformance of the act for which
the pled~e is given is due in whole or in part the pledo-ee may
collect w nat is du to him by the sale of th property pledged. But
before the property can be old the p] edgee must demand performance 1hereof from the debtor, if h e can be found, and m ust give
actual notice to the pl dgor of the time and place at which the
property pltdged will be old, at such a r easonable time before t he
sale as will enable the pledgor to att n d, but notice of the sale may
be waived by th pl dgor at a11y time. The sale must be by public
auction and must be for th highe t obtainable price. Aft r the
sale the pledgee may deduct from the proceed the amount due and
th nece sary e. pen e of sal and collection, and must pay the surplu to the pledgor. The p1edgee or a pledge-holder can not
purchase the property pledged except by de aling direct with the
pleclgor.
A pledgec can not ell any evidence of debt (collateral ) pledged to
him except the obligations of .2 :overnments, ...tates,or corporations;
but he may collect tbe ame when dll e. In all cases, instead of sellino- property pledged the pl dge may foreclo e the right of r dernption by a judicial ale under the direction of a com pet nt court, and
in that case may be authorized by the court to purchase at the sale.
Protest. ( ee Bills and Note• . )
Redemption. (
E :recution, Judgment, and Taxe .)
Replev in. Personal property may be replevied by the owner or
other per on entitled to the po"
ion thereof by bringing uit
ther for and e:s:ecuting a bond in double the value of the property.
The defeudant may retain the property by giving lik ecurity.
Statute of Frauds. A will mu t be in writing, xcept a nuncupative will. (~ ee lJ"ill<'-) No e tate in land will pas other t han
leases not to xc ed one year, unles in writing. An agreement not
to be performed within a year from makin s it mu t be in writing;
al o a promise to answer for the debt, de rault, or miscarriage of
anorher; al o agr ement made in con ideration of marriage other
than a mutual promise to marry.
n agr ement for the sale or
good and chattels or thing in action at a price not le than 200,
unles the buyer accept blld receive part of the ame or any part of
the purcbas money. No evidence i admi sible to barge a pe1"on
upon repre.,entation a to the credit of another unl s the r <" preentation be in writing.
Stay of Ex cution. ( ee Execution.)
upplementary t'roceediogs. When an execution i return ed 1m:::utL,rt d, the j ndgment red1tor may btain an ord r
reqniring tl1e jndgm ot debtor to appear and a □ werconcerningh is
property before the jndg or r fere appointed by him: al o, in ca e
after the i uing of an xccntion, upon proof by :fiidavit that the
judgment d l>tor ha property which he nnju tly r fn e to apply
toward 1be ati faction of th jndgm nt, the judge may make the
or<ler, and in t •ad ther<>of, if 1t app ar that the debtor i abont to
ab-,cond, be may, by order of the jndg , be arr t d and required
IJY him to give ecurity for the judgment, or that he will att nd
for b t· own cl bt

37

577

from time to time durino- th pendency of the proceeding , and
tha t h will not in th em ~nti me di pose of any portion of his property, and in dcfau1t of security he may be committ d to pri on.
Taxf's ,
11 real e:-tate may be old for taxe with right of redemµt10n within one year, except city ta:x s governed by city charter as to time or redemption.
Te tirnony. ( ee Evidence.)
Trust De e ds m ay be u ed in,:tead of mortgages, but are not
often used exc pt with .c ome avings and loan banks or societies.
Wills. Every i;er~on ov r the age of eiahteen years, of sound
mind, may, by last will, dispo ' e of all his e tate, real and peronal.
A married woman may dispo e of all her eeparate estate by wm
" 'ithout the consent of her bu band, and may alt r or rev ke the
will in like mann r a if she \\'er single. Her will must be execut cl and proved in like manner a other wills.
Every will other than a nuncupative wil1 must be in writing and
every will other than an olograpbic will and a nuncupative will,
mu t be executed and atte ted as follow :
1. It must be sub cribed at the end thereof by th testator himself, or some person in bis pr ence, and by bi direction must
sub cribe his name thereto. 2. The sub cription must be made in
th pre ence of the atte.,ting witne e , or acknowl dged by the
testator to them to have been made by hi m or by his authority.
3 . The testator must, at the time of sub cribing or ackno,vledging t he
same, declare to the attesting witnes es that the in trument is his
wi11; and. 4. There must be t,,,o attesting witnesse , each of whom
m11. t ign bi name as a witnes at the end of the will, at the test~
tor reque t, and in bis pre ence.
An olographic will i one that j entirely written. dated, and
signed by the hand of the testator hims lf. It i subject to n o
other form, and mny be made in or out of this tate, and need not
be witne - eel.
A w1tne to a will ..,bould alway write bis name and residence.
All devises or gift to a subscribing, itne are void unless there
are two other comp tent 1rnb cribin g witn
es.
No will made out of this tate i ' valid as a will in this Stat
nnles., executed according to the provi ions of the code.

COLORADO.

BANKING LAW.
(Revised by

CHARLES

M.

0.AJ \IPBELL,

Atty. at Law, Denver.)

State Banks. The constitution says: H The General Assembly
shall provide by general laws for the organization of corporations. ' 1
The General Assembly has pa sed a law providing that any number
of persons, not less than three, may as ociate to establi h a bank of
discount and depo it, the capital tock must not be less than
$30,000; fifty per cent. to be paid in before the opening of the
bank, and a certificate to that effect under the oath of the president
and cashier, to be filed in the office of the Secretary of State
and in the office of the Recorder of Deeds in t he county wher~
such bank is located; and no bank to continue to transact
business beyond the pen od of one year unless the capital
stock shall haTe been fnlly paid up in cash and a like certificate
filed as before stated. Share-holders in bank , savings banks trust
d_eposit and ecurity associations shall be held ind1v1dually r~spons1 ble for debts, contracts, and engagements of said association in
double. the amount of the par value of t he stock owned by them
re pect1vely. If any banker, bank officer, oremployedoing business
in thi State shall receive money or property after he shall have had
knowledge of the in olvency of said bank, s uch banker or banking
institution shall be d eemed guilty of larceny, and on conviction
puni hed by imprisoument in the penitentiary for n'ot less than on~
year nor more than ten years. Evidence at the trial of the failure
of any such banker or banking in titution, within thirty days after
the reception of the deposit or creation of uch indebtedness shall
be primafacie evidence of knowledge on the part of the p~rsons
charged, that said bank or banking institution was insolvent at the
time of the reception of such deposit or the creation of such indebtedness.
No corporation organized under the law of this State and doing
a bankin~ bu iness in this State shall loan its money or the money
depo itea with it to any indiTidual, corporation, firm or company
directly or indirectly, or permit any individual, corporation firm o;
company to become indebted to it in a sum exceeding twenty-five
per cent. of its capital stock actu~iJly_ I?aid in, or permit a line of
loans to any greater amount to any mdiv1dual, corp or ation firm or
company, nor shall an y such corporation loan to any o'fficer or
dir ctor of the same, or receive or hold the name of any officer or
director of the same as principal or surety, or en dorser upon paper
for an amount greater than ninety per cent. of the capital stock of
such corporation actually paid in and owned by uch director or
officer, un~ess such b orrower depo it with such corporation collateral ecunty or exec~te a deed ?f tr!)st or mortgage upon real or
personal property, which at the time 1s a ses ed or assessable for
taxable purpo es at a valuation ten per cent. in excess of such loan
No president, director, manager, cashier, or other officer ao-ent
or . emplo,ye of any bank or ban~no- institution, organi~el' and
domg bus1?ess under UJ?.Y law of this State, shall receive or assent to
~he recept10n of d eposits, or create or a sent to the creation of any
rndebtedue s by such bank or banking in titution after he shall
have bad knowledge of the fact that it is insolvent or in failing circurnstan~es.. _Every person v_iolating the provisions of this section
shall be md1v1dually respon 1ble for uch deposits so received and
such indebtedness so contracted.
Sav ings Ball;ks.
avings ~an~s hall have a capital of not less
than $25 000 wh1~h hall be paid m ca h. The board of directors
or tru tees may mve_ t O?~:half of the depo its made with them
upon per onal secuntj)1Q91111:al Dlmlllrl or stook of this State or of
0

UNIVERSITY OF WASHINGTON

57

BANE ING A.ND COnIMERCIAL L ,V -COLO RADO .

the United tate , or in the bond of any county, tate or school
district of this State, legally uuthoriz ed to issue snch bonds or loan
the um upon bonds Recured by mortgag e upon unincum be1ed real
estate worth at least double the amount loaned.

COMME RCIAL LAW.
Acknow ledgme nts. ,Yhen executed within this State, before
any Judge of any court ot record, before the Clerk of any such
court of record, or the Deputy of any such Clerk, such Judge, Clerk
or Deputy Clerk, certifyin g such acknowl edgment under the seal of
such court; before the Clerk and Recorde r of any county, or hie
Deputy, such Clerk or Deputy Clerk certifyjn g the same under the
seal of such county; before any Notary Public, he certifyin g the
same under his notarial seal; or before any Justice of the Peace
within his county; pl'ovided , that if such deed, bond or agreeme nt
be for the conveyan ce of land situate beyond the county of such
Justice of the Peace, there shall be affixed to his certHicate of such
acknowl edgment a certificat e ot the County Clerk and Recorde r of
the proper county, under hi:5 hand and seal of said county, to the
official capacity of such Justice of the Peace, and that the signature
to such certificat e of acknowl edgment is the true signatur e of such
Justice. ·when executed out of this State and within the United
States, or any Territory thereof, before the Secretar y of any such
State or Territory , he certifyin g such acknowl edgment under the
the seal of such t:,tate or Territory ; before the Clerk of any court of
record of such State or Territory or of the United States within such
State or Territory , having a seal, such Clerk certifyin g the acknowledgment under the seal of such court; before any Notary Public of
such State or Territory , he certifyin g the same under his notarial
seal; before any Commis sioner of Deeds for any such foreign State
or Territory appointe d under the laws of this State, he certifyin g
such acknowl edgment under his haod and official seal; before any
other officer authoriz ed by the laws of any such State or Territory to
take and certify such acknowle dgme1,t; provided , there shall be
affixed to the certificat e of such officer, other than those above
enumera ted, a certificat e by the Clerk of some court of record o1
the county, city or district wherein such officer resides, under the
seal of such Court, that the person certifyin g such acknowl edgment
is the officer he assumes to be; that he has the authority , by the
laws of such State or Territory , to take and certify such acknowl edgment , and that the signatur e of such officer to the certifica te of
acknowl edgment is the true signatur e of such officer. When
executed out of the United States before any Court of Record of
any foreign Republic , Kingdom , Empire, State, PrincipaU ty, or
Province having a seal, the acknowl edgment bemg certified by the
Judge or Justice of snch Court to have been made before such
Court, and such certificat e to be attested by the seal of such Court,
before the Mayor or other chief officer of any city or town, having
a seal, such Mayor, or other chief officer, certifyin g such acknowl edgment executed under such seal before any Consul or Consuls of
the United States within_ sucb. foreign country, he certifyin g the
same under the seal of his Consulat e. Deeds to State lands need
not be acknowl edged.
Assignm ents. A general assignm ent may be made for benefit
of creditors . Deed of assignm ent to be recorded where assignor
resides. Deed of non-resi dent to be recorded where principa l business is carried on. Assignor to attach inventor y under oath, giving
name of creditors and the amount of their respectiv e demands .
Deed for benefit of all creditors , whose consent will be presume d.
Assignee must file bond, inventor y, and valuatio n in District
Court of the county where deed is recorded . Notice of assignment to be publishe d. Notice to be mailed to creditors to
present claim under oath within three months. Claim filed within
the first three months to have priority over those filed thereafte r,
unless creditor can show notice not received. When real estate is
assigned , notice filed with Recorde r shall be construc tive notice to
purchase r or incnmbr ancer. At expiratio n of three months assignee shall file with Clerk of either court, a full list of creditors , as
well as statemen t of money received and disburse d. Exceptio n to
claim mav be filed before dividend declared. No exceptio n to claim
ti.led. Court will order assignee from time to time to make equal
dividend s among creditors . Assignee always subject to order o!
Court, who may remove for cause, and fill vacancy. Assignee to
have full power of assignor . Court may compel appearan ce of
debtor or wife to answer under oath as TO amount and situation
of e tate. Majority of creditors may appoint au attorney to represent estate before Court; Court may allow compens ation to attorney.
After assignme nt, if so agreed by all parties, proceedi ngs before
Court may be ·waived by fili11g ag;reement with Clerk. Assignee
not to be di charged until final report filed; ten days' notice to be
given creditors before hearing; said tru t to be closed within one
year from filing, unless cause shown to extend time. Property
exempt from executio n. shall not make deed of assignm ent invalid
which except same. Uupaid wage of servants , laborers and employes, earned duriug six months precedin g the date of assignment, not to exceed fifty dollars, and taxes assessed by laws of the
State and of the United States. shall be preferred , and paid prior to
dividend to creditors . Creditor may maintain an action on bond
of a ignee for damages sustaine d by reason of as ignee's failure
to act.
.'\.ttach ments, In actions on contract s,expres s orimplie d, the
plaintiff , at the time of is uiug summon s, or at any time afterwar d
before jndgmen t, may have the property of the defendan t not
ecurity for any judgmen t
exempt from executio n attached a
that may be rendered in ncb action, upon filing with the lerk
of the Court the affidavit and bond herein describe d, unless tbe
defenda nt shall give good and sufficien t security to secure the
payment of such judgmen t. The bond nrn ·t be signed by sufficien t
suretie to be approved by the lerk of the Court (generall y two
tate are required ), and be in a sum not less
freeholde r in thi
than double the 11.monnt claimed by plaintiff; the conditio n of
the bond being that the plaintiff will pay all co ·ls that may be
awarded to defendan t 1:1.nd an damageR he may su tain by reason
of the attachm ent, if the Court shall finally decide the plaintiff
was not entitled to the attachme nt. 'l'be affidavit shall be
made by the plaintiff, his a!rnnt or attorney , or ome credible
person for him, and shall set forth, in addition to the fact that
defendan t is indebted to plaintiff in a certain ·um, stated, a

near as may be, upon contract, expres or implied, one of the
followin g grounds of attachme nt: (1) That defendan t i not a re ident of this t,tate; (2) that defendan t is a foreign corporat ion;
(3) that defendan t is a corporat ion who e chief office or place
o! busiues ie out of this State; (4) that the defendan t conceals
himself or stands in defiance of an officer, o that proces of law
can not be served upon him, or that the defendant. ha for more
tban four mouths been absent from the State, or that for such
length of time his whereab outs have been unknown , and that the
indebted ness mention ed in the affidavit ha' been due during all
said period; (5) that the defendan t is about to remove hi property
or effects, or a material part thereof, out of this State, with intent
to deJraud, or hinder or delay his creditor , or some one or more of
them; (6) that the defenda nt has fraudule ntly conveyed or transferred, or assigned his property or effects, so as to hinder or delay
his creditors , or some one or more of them; (7) tbat the defendan t
has fraud:ile ntly conceale d or removed , or disposed of his property
or effects so as to hinder or delay hi creditors , or some one or more
of them; (8) that the defenda nt i about to fraudule ntly convey or
transfer, or assign his property or effect . so as to hil1der or delay
his creditors , or iaome one or more of them· (9) that the defendan t
is about to fraudule ntly conceal or remove, or di pose of his prop
erty or effects, so as to hinder or delay his creditors ; or tllat such
debtor has departed or is about to depart from this State, with the
intention of having his effect8 removed from this State; (10) that
the defendan t has failed or refused to pay tbe pnce or value of any
article or thing delivered to him, which be should haye paid for
upon the delivery thereof; (11) that the defendan t ha fa,1 led or
refused to pay the price or value of any work or labor done or performed, or for any service rendered by the plaintiff, at the instance
of the defendan t, and which should have been paid at the completion of such work or when services were fully rendered ; (1:!) that
the defendan t fraudule ntly contracte d the debt, or frandule ntly
incurred the liability respectin g which the suit is brought, or bv
false represen tations or false pretense:3 or by any fraudule nt conduct, procured money or property of the plaintiff ; (13) that the
action is brought upon an overdue promisso ry uote, bill of excha11ge and other wntten instrume nt for the direct and unconditional payment of money only and upon an overdue book account.
Garnishe e proct ss will issue in aid of attachme nt when pro µerty
of the debtor is found in the possessio n of thi.rd persons. \Vrits of
attachme nt may i~sue upon debts or liabilitie s not yet due, if the
affidavit of attachme nt states any of the grounds aforesaid , except
the first, second and third. Where it appears necessar y by affidavit
filed, the writ may be executed on Sunday. The defendan t may
have the attached property released, by executin g an un(iertaking to the plaintiff with at least two sureties, residents and
freeholde rs, or househol ders in this State. conditio ned upon the
return of the property or its v1:tlne on demand if the attachmen t be uot dissolved. In all cases of attachme nt any person other than the defendan t, claiming any of the property attached
or any interest therein, may intervene without giving bail, but the
property shall not thereby be released: and the Court shall, upon
due notice, try the rights of such interven ors. Shares of stock of
a corporat ion can be attached .
Corpor ations. Corporatiorn; organize d under the laws of this
State may be dissolved by a two-thir ds vote of the en tire tock of
the corporat ion, before the expiratio n of the t 1 m fixed in the
arti~les of incorpo_ration, and such d~s olution shall not take place
uot1l the debts owrng by the corporat ion shall have been fully paid.
No foreign corporat ion domg bu iness in this tate shall be permitted to effect a reconstru ction by liquidati on or otherwis e nor
s~~ll Ruch re~onstr uction or liqnidati<?n take effect at-\ ngai11t't' any
c1t1zen of this State, unless all the rights, hare and inten st of
any citizen of this State shall have been, or shall be protecte d and
the stock interests of a citizen of this State shaJl have bc~n or
shall be fully recogniz ed, and in i.ts original condition , without
diminuti on in number, amount, or face valne.
of
0
Trust compani es may be organize d to act. as the :fiscal no-ent
as
act
to
ion;
corporat
or
politic,
body
lity,
municipa
State,
any
~ru~t~e under any mor_tgag,e. deed of tru t or bond i ' ued by any
md1v1dual or corµorat10n; LO act nuder an order of appointm ent of
any court of Tecord as gnardiau , receiver or trustee of the e tate of
any minor; to take. accept, and execute any and all legal trn ts
duties and powers in reg1:1rd_ to th~ managem eut of property , reai
and personal ; to purchase , mvest 111 and seJl :::,tocks, bills of exchange, notee-., bonds, mortgag es. and other securitie s; to accept
the appointm ent of executor or trutitee under a la twill and testament, or administ rator with or without the will anuexed of the
estate of any person; to act as conserva tor of committ ee of the
estate of lunatics, idiots, per on of unsound mind, or hnbitunl
drunkard s; to be appointe d guardian of infant ' in all ca ' es where
~n _appli~ation ehall be ~nade to any conrt of this ' tate. having
Jnr1sd1ct10n for the appomt ent of a gnan1ian of any infant the
amount of the income of whose estate ball exceecl th, um of $100
per annum; to have and posse. the power to make in urancc for
the fidelity of persons holding places of re pon ibility and trn t
and to receive upon deposit for safe keeping. money, plate, stock:
bonds, and valnable property of every kind, but no compnny shall
b_e incorpor ated f~r any of the pnrpot'cs enumera ted or possess the
rights and franch1 ' CS grani.ed, unless thP capital stock hall be at
least $2fi0,000 for itie of the fi1"t-cln s, ancl $50.000 in itie of
the second-c lass, in cash, and hall not proceed to do business
until the entire capital stock has been paid in ca h .
i\l nnicipal corporat ions !lre _ubject to garnishm nt upon write
of atrachm cnt and execut1011 m the same manner as private corporntiou s and individn nl .
Con1m ercial Pa.per. The law merchan t prevail o-enerally in
Cotoru~o. ~1_1 prorni' ·ory notes, bonds, due bill , and giber in 'tru~ents rn wntmg made by any person, whereby such person promise and agree to pay any sum of money or article of per onal
property , or any sum of money on personal property , or acknowl edges any um of money or artic1e of personal prop rty to be due to
any otl?-er person or person~, consLitu tes '' ommerci al Paper," as
recogrnz ed by the General r.atutes of Colorado . Suchin truments
of writing last mentione d, hall be taken to be due and payable to
the per on or person to whom the said note, bond bill or other
!nstrume nt in writing is made; any such note, bond, 'bill or other
m trument made payable by any person or per ons, shall be a ' Signable by endor ement thereon under the hand of such person and
of his assignee , in (tln-~inml.fnmamner as bills of exchang e are, ~o as
0

UNIVERSITY OF WASHINGTON

B NKI G

D COnI:OIER IAL LAW -COLO RADO .

b1olntely- to transfer and ve t the property thereof in each and
every as 1gnee succes fully. Comm ercial paper need not be paid
at a bank or any fixed place in the tate; it i , however, cu tomary
to make payable at ome bank or place of bu ines . The bank do
not pay unles per onally reqne ted so to do. Holder of omrnerci al
Pa~er must exhaust remedy against maker before proceedi ng
agamst endors r.
In ca es where any of the above-m entioned
instrume nts of writing are for the payment or delivery of persooal
propertJ'." ?ther than money, and no particula r place be specified in
such wntmg for the payment or d livery ther0of it hall be lawful
for the maker of any uch instrume nt of writiDo- to tender or cause
to be tendered , on t~e day II?entioned in such in~trum ent, the personnl prop rty therem mention cl, at the place where the oblio-ee or
payee or any uch instrnme nt re ided at the time of the exeiutio n
thereof. In ca e tbe personal property is too ponderou s to be
moved, or the obligec or payee have, at the time of the executio n of
such in trnment of >vriting, n_o place of residenc e in the County
where the maker re ides, then 1t sball be lawful to tender uch personal property at the place where the maker resided at the time of
the executio n t hereof.
Courts. United States Circuit and District Courts, Di trict of
Colorado . Terms: At Denver, first Tuesday in May and Novem~er; at Puebl~, fir t Tuesday in April; at Del Norte, fir ' t Tuesday
m August. Snpreme Court of Colorado con ist of one Chief
Jasti~e and _two As ociate Jnstic s; has appellate jurisdict ion only,
save rn a, few matters, sucu tts habeas corpn , mandam us, etc.
Tern~s: At Denver, second :Monday in "eptemb er, second :Monday _m January, second 1\Ionday in April. Court of Appeals
con ISt of three Judges, nppellate jurisdict ion only the same
a the npreme Court. Di trict omts ha.Ye creneral' and orio-~na) j\ui_sdict ion bo~h in law and equity, and have appellate
3m·1sd1ct10n m certam cases from the County Conrts and Ju -tice
of the Peace; al o jurisdict ion in criminal cases-in capital
case exclusiv e . From one to three r gular terms are held in
each of the several countie in each year. County Courts haye
exclusiv e probate jurisdict ion and concurre nt jurisdict ion with
the Di 'trict._ Courts in civil cases where the debt, damages , claim
or amount m controve r~y doe not exce d two thousand dollar .
They also have original jurisdict ion in ca es of mi demeano r
m1d are empowe red to try such cases upon informat ion by the
Distri_ct A!torney . Terms: In Arapnho e and some few other
counties ,. s1~ terms are held yearly; in the remainin g counties ,
four. Cnmmn l Courts: In Pueblo and Lake counties Criminal
Courts have juri diction concurre nt with the Di trict Courts
in all criminal cases not capital. Terms: Four term in each
of Eluid counties are held yearly. Be ide the foreo-oino- courts
of record, there are Ju tices of the Peace in the s~ver~l counties having ciTil juri diction where the amount involved does not
e~c~ed three hundrerl dollars, besides certain criminal jurisd1ct1on.
Court of Record may enforce decrees in action
brought for the enforcem ent of an express, implied or resulting
trnst, or the removal of cloud from title, or for the specific
performa nce; the establi hment of laws to destroy d ed. conveyance or instrume nt in writing, or proof of any conveyance dl'ed or instrume nt in writing, not properly proved or acknowled ged, or any proceedi ng in rem,, or affc-cting only specific
property . If defendan t not found within the juri diction of the
court, and construc tive i;;ervice alone i had, tbe court mav appoint
a trn tee to act for defendan t, whose acts if Iawfnlly done under
said decree shall be as effectual as if done by defendan t.
Deposi tions. The depo ition of a witne8s out of the State ball
be taken upon commiss ion issued by the Clerk of the Court under
seal of the court where the suit is pending, on the applicati on of
either party, on five day 'previou s notice to the other, " ·hich notice
shall be accompa nied hy a copy of the interroga tories to be attached
to the cc:inuni ·. ion. It hall be issued to a per on agreed upon by
the parties, or 1f tbey do not ao-ree, to any Judge or Ju tice of the
P~ac~ selected ~Y the officer granting the commi sion, or to a Comm1ss1011er appomte d by tbe Governo r of the State to take affidavits
and depo itions in other States and Territori es, or to a Notary
Public. The adverse party may file and have attached to the commission such cro s-interro gatories as he may de ire. P arties may
agree by written stipulati on to take the depositio n orally. The
comm is ion authoriz es the Commis sioner to admini ter oaths·
instructi ons for the taking of the depositio n are printed on th~
back of the commis ion. Depositi ons of resident witnesse s in
certain ca 'es may be taken either on written interroga tions or
orally.
Exe1np tion . Homeste ad consistin g of house and lo t or lots in
any town or city, or of a farm of any number of acres, so that the
value does not exceed $2,000, when snch home 1eact has been entered
of record as such, and is occupied by a hon eholder the head of a
family. P ersonal property exempt incl ude all wearing apparel of
the debto_r and his family,_ pictures,. school books and library, beds
and be~dm~, toves, c<;>0_krn cr ute11~1ls, and hon ehold furniture , not
exceed111g ;it1100; prov1s10ns for six months. tools, impleme nts, or
stock in trade, up to $200; one cow aml calf, ten heep and necessary food for ix months; working animals, up to $200; the librnry
and impleme nt of a profe ional man up to $300. Persons not
the head of families are entitled to tool , working animals, and
stock in trade, not exc eding $300 in value. There shall be exempt from levy of attachm ent or garni1,hm ent, 50 per cent. of the
wage or earning of any debtor earned during the 30 days next ]1)receding such levy under executio n, attachm ent or garni hmentof the
s~me upon any d_ bt incurred 8;ft r the 2 th day of March, 18 5; provided, at lea t $,30 be exempt mall cases. Al o, tbe earnings ot
any debtor, or the wife who i the head of a family, depende nt in
whole or in part upon such earnilws , not exceedin g $100, earned
during _the thirty days next pr~cedin g the issuing of any writ of
execut10 n. attachm ent or garmsbm ent. Al o all mon Vf!I received
a a pension, wheth r said pensione r hall be the head ~of a family
or not. When the debtor die or absconds and l ave hi family
the money exempte d. the same shall be exempt to his wife and
children . or either of them.
Fraudu lent Convey anc s. Any person or per ons who hall
be a party to anr fraudule nt conveyan ce or ale of any lands, tenement or b red1tame nt , goods or chattels or any rjgbt or intere t
isAuing ont of the same, or who shall conceal, secrete, remove or
dispose of any goodH or chattel , or shall be a party to any bond, .. nit,
jud~m ·nt or <'X ution, contract or conveyan ce had, made or contrived with intent on the part of 6aid parties, in either case, to

deceive and defraud or defeat, hinder or delay the creditor or creditor , of such per on or person afore aid in the collectio n of their
ju t debt , dnmao-e or demand, ucb person or persons shall, on
convictio n of eith r or all of said off en e , be punished by confining
in the ueniteut iary tor a term not exceedin g thr e years.
Hu -band and Wife retain their eparate property , real and periOnal, owned at marriage , or acquired thereafte r by gift, and the
rents. i sues . profit , and proceed ' thereof, and any real , per onal or
mixed prop rty which shall come t o them by de cent, devise or
bequest or the gift of any person except the husband , includin g
pre 'ents from the hn "band-f or their own separate use, and not
liable for their husband debts. They may carry on trade or
business , sue and be sued, contract debts, and execute promisso ry
note , bonds, bills of exchang e and other instrume nts precisely
as if sole, and may conYey real estate without the husband
joining in the deed. A married woman may make a will,
but can not bequeath more than half her property away from
her husband ,Yithout bis consent in writing. Dower is abolished, and the estate of an intestate dl' cends to the survivin g
wife or husband where there are no children . or descenda nts of
children ; in other case ' survivor take one-half ubject to payment
of debts. The hu band can not by will deprive his wife of over
one-half of bi property . A married woman can ue and be sued
the same as if he were sole. In all marriage hereafter contracte d,
the hn band shall be liable for the debts and the liabilitie s of the
wife contracte d before marriage , to the extent of the re1:1l and personal property he may receive with or through her, or derive from
the 8ale or reut of her lands, and 110 further. The expen e" of the
family and the educatio n of the children are chargeab le from the
property of both husband and ,dfe, or either of them, and in 1 elation thereto they may be sued jointly or severally .
Interes t. The legal rate where no agreeme nt is made, i eight
per cent. and the same is allowed on bonds, bill , promis ory notes,
j ndgment s, county, town, and city warrant and other like evidence ' or certificat es of municip al indebted ness; aid ,rnrrants
draw eight per cent. Partie may stipulate for a higher rate. There
are no usury law .
Judgm ent and Execut ion maybe issued from all courts immediatel y on entering judgmen t, nnd btcome a lien at once on all
personal property of defendan t witlJin the county. When i sued
from a court of record, are returnab le in ninety days: from a
Justice's Court, thirty days; and land on which defendan t re ides
must be taken last. Defenda nt or legal re pre entati ve has six
months in which to redeem lands sold under executio n; judgmen t
creditor may redeem after ix and within nine months. Where
executio n is returned unsatisfi ed, judgm ent debtor may he required to answer under oath touching his property , and if it
appear by affidavit that there is danger of hi abscondi ng, he
may be arrested and held to bail. There i no tay of executio n
except by appeal. Where an award ha been made and filed by
the succe fnl party, with the Clerk of the District Court, as a
bu i of a judgmen t. au executio n may be issued for its collectio n.
All and singular th goods, chattels, lands, tenemen t and real
e tnte of every person against wllom any judgmen t hall be obtained
in auy court of record, for any debt, clnmage or co t , ball be
liable to be sold on e.xecution A tran cript of the docket entry of
any judgmen t certified by the Clerk of the Court, may be til d with
the Recorder of any coun ty, and from the time of filing, shall constitute a lien upon all the real property of uch jndgmeu t debtor,
not exempt from executio n in such county, for the period of six
years . Executio n may is ue upon any judgmen t at any time within twenty year from the entry th ereof, but not afterwar ds u11less
revived as provided by law.
'
Judgm ents are liens upon real estate ,-rithin the county as soon
a ab tract thereof are filed of record in the office of the County
R ecorder and not before, and may be extended to other counties
by filing transcrip t. Lien contione s ix year ' from entry of judgment, provided executio n be issued on the judgmen t within one
year. Judgmen ts are lien upon per onal property during tbe lifetime of the executio n from the date when the executio n wa placed
in the hands of th e officer on all property within t he county where
such officer is acting. Judgmen ts may be revived.
Limita tions to Suits. Action of debt founded npon contract
express or implied· upon judgmen ts of court not courts of record·
for arri->ars of rent; of a sumpsit on a ca e found ed on any con~
tract; for wa te and tre pass on land and for replevm. must be
begun within six years after the cau e of action accrues. Actions
against Sheriff and Coroners , for liability incurred by them in
their official capacity , shall be brought within one year after the
cause of action accrue . Bill of relief on the ground of fraud must
be filed within three years after the discover y of the fraud by the
aggrieve d party; in case of a tru t not cognizab le by the Courts of
common law within five years . In action accruing out of the tate
upon contract expres or implied or upon any sealed in trnment
in writing, or judgmen t or decree of any Court, more than six years
before the commen cement of the action, the statute of limitatio ns
may be pleaded in bar of recovery . Per&ons under the age of 21
year·, married women, per on insane, impri oned or ab ent from
the United State . may bring any of the foregoing actions within
the time in this chapter r espectiYely limited after the disabilit y
shall be removed . If any per~on entitled to bring any of the foregoing actions ball die before tbe expiratio n of the time limited
thr,refor, and if the cause of action doe by law urviv . the action
may be commen ced by the executor or ad mini ' trator of the decea ed
person at any time within one year after tbe grant of letters testamentary or of administ ration, and not afterwar ds. if barred by the
provision s of this chapter. Payment by one co-obliga tor will not
take the ca e out of the tatute a to the other .
Mortga ges. '!'here are no statutory provi ion except as to
foreclosu re and redempt ion from sale, the same time beinQ' allowed
for redempt ion as in sales under executio n. Trn t ieeds are
common , and lande or real estat e sold by the trustee under the deed
or trust are not redeema ble.
hattel mortgag e , to b valid as to
third partie , mu t be acknowl edged before some officer authorized to take the acknowl edgrn ent of deed to real estate and
recorded in the Recorde r's office, nnl ss pos e sion of the ch~tt ls
actually pa es; thereupo n 8hRll be good from time record d
until maturity of ~he last install~1 ent of tbe mo!·tgag e iudebted nes , and may be g1v n ffl~S~ ffig two years 1f principa l does
not exceed
if tbe prin ipal is

tfRi~~~?tec3rW¼1§~-ff~fGffl~

BA. KING A D 00:i\IMER IA.L LAWS -CON ECTIC UT .

5 0

more than $2,500, and not more than $20,000, and not more than
ten year if indebted ne s exceeds $20,uOO, notwiths tan ding property mortgag ed or con veyed by deed of tru t remain in the possession of mortgag or . If m ortgage given to secure greater sum than
$2,500, the e shall be recorded in the county wh ere mortgug e is
recorded and worn tatemen t showing (1) mortgag e given m good
faith to ecure payment of sum mention ed therein, (2) how much
ha been paid or remains unpaid. Mort~AR: 8S on live stock to cover
increa e thereafte r born. Where chatte mortgag e does n ot exceed
$300, p ayable in one installm ent, due not more th an eighteen
m onths after, may be extended not exceedin g six months beyond
m aturity, by mortgag ee or assignee filing with the County Clerk of
the county where mortgage is recorded a sworn statemen t showing
(1) amount which remains unpaid, (2) that H is still due; that
mortgag ee or assignee consents to extend mortgag e not to exceed
six months. Thereup on lien extended for period nam ed. If the
mortgag e indebted ness does not exceed $300, and the time for the
maturity of the mortgag e indebted ness does not exceed eix months,
not required to be recorded , but may be :ff.led with County Clerk
and Recorder , and when satisfied same sh all be made to appear
released on the margin of the in strumen t.
1'otes aud Rills of :Exchan ge. Promisso ry notes, due bills,
bonds, and other instrume nts in writing, are negotiab le by indorsement, and if made payable to a person or bearer, do not pass by
delivery only, but must be assigned by indorsem ent, so as absolutely to vest the property in each assignee successively. Assignee
must use due diligence against the maker before he can hold the
assignor liable. All days of grace abolishe d. Paper maturing on
Sunday, Fourth of July, Christma s, or any day ·set apart by the
Presiden t of the United States, or the Governo r, as a day of fasting or thanksgi ving, is deemed to fall due the previous day, and
may be presente d and protested accordin gly. Protest is necessar y
upon foreign bills of exchange , and bills drawn upon any person
or body politic or corporat e out of the State and within the United
States and her territorie s for non-acce ptance or non-paym ent; and
the d, a,vee or endorser thereof, du e notice being given of such nonacceptan ce or non -payment, must pay said bill, with legal interest
thereon from the time such bill ought to have been paid, and ten
per cent. damages in addition , together with the costs and charg;es
of prote8t. A person upon bein~ convicte d of frauduJe ntly givmg
a check or draft on a bauk organize d under the State laws or laws
of t he United State s in which be has not sufficient funds, shall
be guilty of a misdeme anor, punishab le by fine or imprison ment.
· Partne rship. Survivin g partner shall make an inventor y and a
complete list of all the liabilitie s of deceased partner, and have the
estate appraised in like manner as the individu al property of a
deceased penion. Inventor y under oath to be returned to the
County Court, granting administ ration, within sixty days after death
of co-partn er. Persons neglectin g or refusing to make return, shall,
after citation , be liable to attachme nt. Survivin g partner shall have
a right to continue in possessio n of the effects of the partnersh ip,
and pay its debts out of the same. Court may pre-Yent waste by
surviving partner to give security for the faithful settleme nt of the
a:tfairs of the co-partne rship. Limited partners hip may be formed
and provided by statute.
Suits. There is but one form of civil action, commen ced in
courts of r ecord by the filing or a complain t with the Clerk of
the court in which the action is brought ; or by service of
summon s. Complai nt must be fil ed within ten days after
summon s issued or the action may be dismisse d without notice.
Any time within one month after filing the complain t, plaintiff may
have summon s issued. Defenda nt is required to plead, demur or
answer the complain t or stand default within twenty days after
service of summon s, if served in the county, or if served out of
such county or by publicati on, within thirty days. If copy of complaint not served, or if the service be by publicati on, ten days
addition al to the time above mentione d shall be allowed for
appearan ce an d answer. If defendan t is served by publicati on,
1rnrvice shall be deemed complete after expiratio n of ten days from
date of last publicati on, said publicati on having been made at least
once a week for four successiv e weeks. If affidavit stating defendant resides out of the State and gives defendan t's post-office
address, clerk shal l mail defendan t copy of summon s forthwith .
Actions are commen ced in Justice's Courts by summon s stating
amount of demand.
Taxes are a perpetua l lien on real estate until paid. Taxes may
now be paid in two semi-ann ual installme nts; the first half on or
b fore the la t day of January, and the residue on or before the last
day of July of the year followmg the one in which they are assessed .
three
Real esrate sold for taxe may be r deemed a uy time within
year by payment of amount for wh ich it \Vas ~old, v,1 ith interest,
and the penalty as prescribe d by law. All minf s and mining
property of the cla s heretofo re ex.em pted by the onstitnti on of
the tare, hall be a ses ed and taxed, and rhe taxes levied and
enforced by ale of the property taxed in default of payment , as is
provided by law in the case of other cla ses of taxable real
propcrtk .
W ar•~hon ses . Warehou e , granarie s and elevators , maintained for the g 11eral use of the public for torai;e purpose , ball
be deemed public warehou se . Wart"hou e receipts for property
stored iu any public warebou e, shall be tran ' ferable with the
e11dor emcnt of tb party to whose order uch receipt may be
i snt~d, and such ndor ·m ut ·hall be deemed a valid trarn'!f r of
the property repreHentecl by uch receipt, and may be made eitbrr
in blank or to the order of another, and the delivery of the receipt,
o endor--ed, ~ball be a valid delivery of the property mention ed
ther in; provid '<l. ho\\'ev r, that all warehou er 'Ceipts which hall
baYe the ,Yorclt-- "uot 11 '!.!:Otiaule ,, plainly written, priuted or
stamped on the fare tber0uf. t-liall not h 1wgotiab le.
1

CONN E TICU T.
BANKI ~G LAW.
LEAVELA D, Attorney at Law, New
Haven.)
Every bank and tru t company is required to k eep in Hs banking
office gold and ilver coin. bullion, bond , legal tender note of the
United States or ational bank currency to an amount not less

(Revised by L1vr

G TON ,

•

than one-tent h of all its liabilitie s, except its capital stock; but
the bonds of the United tates so included in said reE-erve fund
o trust comshall neYer exceed one-twen tieth of aid liabilitie .
except
dividend
any
declare
shall
on
pany or banking corp orati
fr om its net earnings , after deductin g all lo ses, over-dr~ ft and obligations smipend ed or over-due, or make any 1mm or d1 count on a
pledo-e of its own tock, or e tablish any branch office or agency
tb er;of. or empl oy any agent or person to make loans or di count
o bank or tru t ~omat any other pl ace than its b ankmg hou e.
become ~rn~le
thereby
s~a11
~d.10
pm·ty
any
to
credit
!rive
shall
pany
to it for more than 15 per cent. of 1t capital tock actually paid m,
together with the"' urpln , or di1-count any paper made, accepted o:r
indoreed by its cashier or any of its clerks, or by any partner hip of
which either is a member. No director in any ba11k hall be obligated ro sncb bank to an amounte xceeding 5 per< ent. of the capital
actually paid in and snrpln . combine ~, and no bank hall permit
the director~ to become obligated to 1t to an amount at any one
time exceedin g in the whole the sum of 20 p er cent. on He capital
ashiers of banks
tock actually paid in and snrplns combine d.
and treasurer s of t ru st compani es are required to give not
less than $10,000 bonds. There are two Bank Commis sioners
appointe d by the Governo r of the ~Hate, with the advice and
consen t of the Sen ate, who examine every bank and trust
company semi-ann ually or oftener, with po"·er to examin e witn esses under oath, and who report annually to the legi lature the
condition of all such institutio ns exami ued by them. The cashiers
of all bank1:1 and treasurer s of all t.rnst compani es are required to
sign and deliver to the Bank Commies ioners quarterl y a particula r
statem ent of the condition of their respectiv e institutio ns, exhibitin g
their resource s and liabilitie s and the daily average of specie and of
specie fund s during the three months last preceding, which statemen t
shall be verified by oath, and publish ed in a newspap er in the county
where such bank or trust company is located ; and are also required
on or before the 1st day of April in each year, and oftener if required
by the Bank Commis sioners, to transmit to them a sworn statemen t
ol the conditio n of th eir respectiv e institutio ns, making a balance
sheet showing , among other things , the amount invested in r eal estate, the localitvt hereof, and its cash value, the amount invested in
stocks or bonds~ wit h the numher of shares of said stock and the
par value thereof, the actual cost to the institutio n, the actual market value at the time of said return, the number and amount of
such bonds and their descript ion, and all other investme nts in personal property , specifyin g the value thereof and the original cost,
also the amount of money held in trnst and on deposit on the day
of the retum , the average amount of loans for th e yea r, and the
actual amount of loans on the day of the return, and the ~ec □ rity
held therefor. The treasurer of each savin gs bank ball fi le with
the Bank Commiss ioners a similar annual statemen t on or before
the first day o f October in each year.
Savings banks may invest, n ot exceedin g 20 per centum of
their deposits and surplus, in notes secure d by pledge of dividend paying stocks or interest-bearing bond1'1 a s collatera l security; not
exceedin g twenty-five per centum thereof, in notes i:;ecured by
indorsen :ient, guaranty , or joint and several obligatio n of two or
more parties, residents of this State; and may inve t also in the
purchase of the authoriz ed bonds of the United State ; in the
authoriz ed bonds or interest- beHring obligation of any of the New
England States, or of the States of New York, New Jersey. Pennsylvania , Ohio, Kentuck y. Michigan . Indi an a, Illinoifl, Wiscons in,
lowa, Minneso ta, Missouri. Kansas, N ebraska. Colorado , Delawar e,
Maryl and, Washin gton , Californi a, Oregon, or the District of Columbia; in the authoriz ed bo11ds of any incorp orated city in the
New England StateP , or of the cities of New York, Brookly n,
Albany, Syracuse , UticH Troy, R ochester , and Buffa lo, in the State
of New York; Philadel phia, in th e State of Pennsylv ania; Detroit,
in the State or Michiga n; Clevelan d, Columbu s, Dayton, Clncinnati , and Toledo, in the ~tate of Ohi o; Chicago, in the State of
Illinois; Milwauk ee, in the State of Wiscons in; St. Louis, in the
State of Mi ssouri; Lonisvil le, in the State of Kentuck y; Omalrn,, in
t he State of Nehra~k a; Newark, in the tate of New J ersey· or in
the purchase of the Jegally authoriz ed obligatio ns of counties ,
citie:a, towns. borough s, and school cListricts in this State; or in
the stock of any bank or trust company in this State, or the tock
of any bank in New York City, or Boston, Mass.; or the
authoriz ed bonds of any other incorpor ated city or not less than
20,000 inhabita nts, located in any of 1 he aforesai d States,
as ascertain ed hy the Un ited Statefl or State cen u made next
precedin g such investm ent, who e indebtcd11ess upon it tocks
ancL bondi::, includin g the issue in wbicb. sucb investm ent is made,
and its p roportio n of town and county debts. after d ducting the
amount of caen and negotiab le securitfo in the si11kino- fund
availabl e for the payment of uch inctebted ne s. does not exceed
8 per centum of the valuatio n of property made for tbe a sessment of taxes next precedin ~ uch investme nt; proricled , said city
has not defaulte d payment of any of its debts within fifteen year
next precedin g the purchase of such investme nt; or in the first
mortgag e bonds of any railroad company who1-e road is located
wholly or in part in any of the "tate herein before mention ed,
which bas paid divideud ' or n ot l .. s than 4 per centum per
annum regnlarly on it entir capital stock for a period of not le s
than :five :,ears next previou to the purcha e of the bond : prorid d . said CHpital tock equal 01 exceed in umonnt one-third of
the entire authortz ed i sue of said bond ; or in the consolid ated
bond of any railroad company incorpor ated by thi 'tate und
authoriz ed Lo iR ue 1:mch bonds to retire 1 be entire d bt of said
company ; p1 ·orirled, aid company ha paid dividend a aforesaid :
but this act sball not be held to anthoriz e the purcha e of bonds of
any hon-e. electric, cable, or elevated raUroad. Ail other investm 11ts Rhall be in loan cc nred by mortgag e of unincum ber d real
e tate in 1his tate, worth double the amount of tbe loan ecured
thereon; prol'irled, that the '1afforcl ' avings Bank of the town of
'tafford may loan on laud located in the county of Ilampde n, in
the tate of Massach usett , the Stonin1t on ' aving Bank of tlle
town of Stoningt on may loan on lalld 10 ated iu the county of
Wa biogton, in the tate of Rhode I land, tile Ridgefie ld avings
Banl ot the town of Ridgefie ld may loan on land located in the
ounty of We tche ter, in the St ate of ew York, and the Thompon Saving Bank of the town of Putnam mav loan on land located
in th county of Providen ce, in the 'tate of Rhode I sland.
Inve tments in United tates bond , in bonds of this State, in
th obligatio ns of a~t' of tl;lc town , cities, boroughs , school districts
and counties in thfs IStfifM,tffi111n the bonds of any of the States

UNIVERSITY OF WASHINGTON

BA RI GA D CO~I MERCIAL L W - CO
or cities who e bonds savings banks are now allowed by law to pur-

chase, may !le classed wit~ loan upon r al e late, for the purpose
of determmmg the proport10n of loan required upon such e ·tate.

COMMERCI AL L W.
Acknowled gme nts. Deed o!' land must be in writinO' subscrib d and ealecl by the grantor, atte ted by two witnes ;•, and
acknowl 'dge d by the grantor to be his fre act and deed, if in this
State, before a Judge of a court of record of this State or of the
United States1 Justice of the Peace, Commi sioner of the School
Fund, Comm1 sioner ol the upe1ior ourt, Cl rk of the Superior
Court or Court of Cu_mmon r1eas or Distrtct Court, Notary Public,
Tow? lerk or A s1_stant 'I own Clerk ; 1f in any other 'tate or
Territory of the Umte~ State , before a ommi ioner appointed
by the. Governor of this State and residing therein, or any officer
authonzed to take the acknowl dgment of deeds in such State or
Te~ritory; and if in a foreign _country, before any Consul of the
Umied States or Notary Publlc or Justice of the Peace in such
foreign country.
Assignmen ts and Inso lv ency. Voluntflry assignments in insolvency can be made by any debtor to a trustee of his own selection. subject to the ub titution of another bv the Probate Court 1 if
deemed prop r. A signing debtor mrnst ·1odO'e with Court of
Probate, within :fl.v~ clays after as ignment, a list verified under
oath of hi reditors, with their resid ences and the amounts "ev~rally du them, and a schedule of his property. A creditor
for over $100. having bron~ht suit and finding no property to
attach, 1:1a,y appl y to the Prooate Court for the appointment o1 a
trustee m rnsolv ncy of the debtor' e tate. A h arinO' is had
and, if the p etition is granted, trust e takes all debtor'?s efl:tat~
not exempt; and all incomplete levies or attachment on me ne
proces commenced within sixty day previou are di solved.
Three to six months are allowed to prove claims which are
passed upon by Commis ' ioners appointed for that pt~rpose. The
debtor receives an allowance for his Rupport and that of his family, and if the e tate pays sev~nty per cent. of all claims proved,
he obtains a foll di charge. D ebtors may be arre ted in actions
for fraud or torts, and cun O'ive bail to the officer making the
arre t, for their appearance before the court to which the writ
for arr t i returnnble. A debtor committed to jail on civil proeess can be r elea ed on taking an oath that h e has not any e tate
in po 'CB iou, rev rsion or remainder, of the value of $17 in the
whole, or uflicient to pay the demand for which he is impri oned
except wha t i by law exempt from execution; and that he ha not:
directly or indirectly, dis po ed of, all or any part of his estate;
thereby to secnre the same, or to receive or expect any advantage
therefrom, or to tlefrand his creditors. The debtor will not be
released if hL oath is overcome by r ebutting evidence. All debts
due any laborer or mechanic for p er onal wages for labor performed 'vVithin three months next preceding the a signment art' to
be paid in full to the amount of $100, before the general liabilities
of the debtor are pnid.
A ttach.me nt is served by attaching goods or lands of defendant,
or, if non be found, by attaching the person when liab1 e. Nonre iclent plaintift' mu ' t furni h bond for co t . Goods concealed
in hands of ag nt , or debts due to the defendan t, are reached by
foreign atta hment, which take the place of O"arni hment. No
as ignm nt of future earning will prevent th ir attachment when
~arned nules made to ecure a bo na. tide debt, due at the date
of such as ignnwnt, the amount of wllich hall be -tated therein
a nearly a po ible, nor nnle s the term for which they are
assigned shall be definitely limited in the assignment, nor unles
recorded, before uch r1.ttachmer:.t in the Town Clerk's office in
the town wb re the a siO'nor re ide , or if he reside without, the
State in the town "' here the employer re ides and a copy left with
the employer .
Conji tional Sales. All contracts for the ale of personal
property, condition ed rhat the title thereto hall remain in the
vendor after deli 'rery, shall be in wri ting, describing tho proverty
and all the conditions of nch sale acknowledge rl before some co mpetent authority, and r e ord d in the town lerk office in the
t own wh re th vend reside . All conclitionnl !"ale of per onal
prop rry which hall not be thus execnt d and recorded shall be
h eld to be ab olute sale , ex ce}?t again t the vendor and hi heirs,
and all snch property ' hall be liable to be tak en by atta hment and
execution for the debt- of th e venclee, in the ame manner a any
other property not exempted by law.
o civil action ... ball be obtained upon any aO'reeContracts.
ment whereby to charc:re any xecutor or administrato r, upon a
pecial promise to tlllBWCr damage ou t of his own estate, or ao-ainst
n y per on upon nny ::-pecial promi e, to an wer for the debt,
defaulr, or mit3carriage of another; or up 11 any ag r ement mad
upon consid nvion 'f marriaO'e; or upon any agreement for the rnle
of real f' tat , or any intl're ' t in or concernmO' it, or upon aoy
agr emcnt thaL i no , to be perform d within one year from the
uch agreement, or ome memorandum
making th reof uule
thE-reo f, be mad in writing , and ,_icrned by the party to be charged
there wi th, or hL agent; but t hi ball uot apply to parol agreements
for hiring or 1 a ' ing real e'tate, or any interest th rein, for one year
have been. or
or le ... , in pnr::-uance of which the leased premi
on claiming
per
any
or
ee
les
the
by
upied
oc
shall be, actually
under him, during any part f such term. ~o agre ment for th e
sale of an p rsonal property for fif ty dollars or upwards shall be
good, unle s the buyer shall ac cpt and actually r eceive part of the
prop rty old or O"ive ometbing to bind th bargain, or in part
payment, or unlt·s ome memorandum in writinO' of su h ag;re ment shall be i~ned by the partie to be cbarO"ed there\rith. or th ir
agent . Probate ourt may, concurrently with court of equity,
uthori:;,;e t he exeeu1 or or admini trator to conv y the title f tlie
decea ed in an , r jl tate to any per on entitled to it by virtue of
ny contract of such d eased per on. ,YaO'ering contracts are
void. Money lost in gaming may be r cov r ct in a iYil action if
snit be brought by the party lo ing withiu three months. Pailure
to do o within t hr e month, enable. any other per on to uc for
and recover treble damag s, half for hi R own n 'e and half for the
x cution .
~ounty. All frandul nt conveyan ~ · it~, jndcrm nt
r contract , made or contrived with ;ntent to nrnid any d ebt or

ECTIOUT.

581

duty b lonO'inO' t0 other . hall, n twith tanding any pret oded conideration ther for. be void ai, aO'ainst tho e pet"On only their
heir , e'\:e ntor ', administrato r" or a signs, to " ·horn su h debt or
duty b longs ,
Corp orati on . Joint sto k corporations may he formed by any
three or mor ' persons, who hall a ociate by written article which
hall expres · their agreement to con titute a corporation, the name
by which it shall be known, the purpos for \Yhich it it:1 const ituted,
tu e town in this tate in wbicb it i to b located, th amount of its
capital tock, and the number of share each p e rson i to take,
whi h shar · slrnll each be of the par value of $100 50, or $25 as
may be pre crib ct. Tb name of uch a corpor tion mu t comompany ' or ''Corporatio n''
men e with 'The' a, ,d end with
exi tinO' corporntion in this
any
by
e
u
in
then
not
is
which ntim
mu t not b eith r t rust, in urance buying
tate. Th e bu ' ine
and lling real e ' tate, bankino-, or trading in bond , not , or other
cYidcnce .,f indebtednes~ , or trafficking m letters patent or patent
otice of the fir t meeting may be wafred by all the ubright .
scribers t o the capital t ock. At least :five day ' notice must be
gi,, n of all ubseqnent meetiog . Three or more dir ctor mu t be
elect d at the first m eting (inclurling adjournment ther <?f, who
hall elect the otticer1'. '1'he director hall cause the articles of
as ociation to be publi~hed in a ne\\·spaper, and a certificate etting forth a true copy of 1he nrt;cles of a'sociation and taring that
su h p1 , blication has been made and O'fring t he names nnd residences of t be ub.., ri ber , 1 be amount of capital stock taken b.Y each,
the amount a tually pairl for in ca h and the amount paid fo r in
property mu~t be deposited with the ecr tary of tate and a duplica e ther of in the office of the town clerk of th town where said
ll the cap ital tock mu t be ubscribed
corporation i located.
and at lea t twent,y p r cent. paid for
criber
nb
for by bona fide
uch joint s to k c ,rp oratio n may hold any prop rt y
in a b.
nece ' ary fo r th ir purposes, including r eal c rat nnd patent right .
All officer of rnch a corporation, who ball intentionally fail to
perform aoy or the rlutie ' by la,Y r quired of t b m. hall b join tly
and ' verally liable for all it' debt' contracted durin O' tb p riod or
such failnre. If the director declare or pt1y a dividend, J,nowinO'
that ueb corporation , insolvent, or that such paym e nt will make
it o, they become jointly and everall liabl for its debt at the
t~me <?f nch declaration or payment. The stock of every corpor ation is tr ... nsferable onl y ou it book in a cordance with its
by-laws, aud I he corporation, ha a lien on all th to k of any of its
8_tockholder ' for debt ' due the corporation and may enforce u h
lle n by 1<ale at public anction. Provi ion is made for windinO' up
th e affairs of the corporation and for its di solution by tb 8nperior
Conrt. Three or mor per8ons may as ociate for any lawful purpose, wher no capital tock i ' created and when o associat d and
i1 ' articles of as ociation duly attested ha Ye be n lorlo·ed with the
"ecretury of tate, and the town clerk, uch as ' O iati<tn hall b~ a
body politic_ 1md corporate, and may hold property, the annual income of which ~hall not exceed 5,000. 'rhe name of eYery prin-ite
corporalion must indicate tbat it io a corporation.
Courts . Terms and Jurisdiction . Superior ourt holds on e
term p er year in each county for the trial of civil causes 1 and
hu jnri ' diction in all law and equity ca es xceeding $500.
onrt of Common Pl ea in Hartford, Fairfield, N e w London and
ew Haven countie , ha exclu ive law and equity jurisdiction
aboYe $100 and below $500, and concurrent iuriscliction with the
' uperior C~urt_ ab.ov~ $?00 and up to $1,000, and in Litchfield ounty
ot lee than four term lil
has exclusive Jtuisd1ct1011 up to $1 000.
each year are held in each of the countie named and there are
ity onrt in mR.ny of the citie , and a Di trict 'ourt at Waterbury, with limited civil juri,:;diction. Probate Courts deal with
and J us the settlement of e tate and in olvency proceedinO'S
0
tice of the P eace have ciYil Jurisdiction up to $100. '
Deposition s may be_ taken in a civil action hy a Judge or
Cl.er~ ot auy ourt, Jus~ice of the Peace, otary Public, or omm1ss10ne r oi the :::lupenor ou1 t, when witness lives out of the
tate, or more than twenty mil es from place of tria1, is over i:xty
year ot age and unable to attend the tri nl, is O"Oin_g to sea or out
ot the 8tate, or by age and infu-mity i unab1e '"to travel td court
or i c onfined in jail. Reasonable notice mnst be O'iven to advers~
party. Deponents must be cautioned to peak th whole tr u th
and carefull y examined. They must sub cribe their depo"-itions'
and make oat~ b efore the authority taking th same. D position~
may b~ t~ken m an): other tate or country by a Notary Public,
omp11st"10ner i;ppomted by the ~o-yernor of this tate, or by any
1\Iagistrate havmg p o~ver t~ ~dm1mster oaths, and they m ay al o
b e t~~k('n before a Fo~·eJ<rn Mm1ster .. cretary of Legation, onsu l,
or~ ice-Consul appomt d by th Umted States, i f taken out of the
U!]ikd States .. A Judge of the uperior, ommon Pleas or D istric t Co ur t_ c~n 1ssue a "c_ommis ion" to take the d po ition of a
p erl'o n res1d111g out of th1 ' ta_te, to be used in a cause p ending
befor~ ~uch ourt. The Superior ourt, upon petition, m ay allow
rlep_o ' 1t1ons to be taken to perpetuate t e timon oncerninO' that
which 1;11ay thereafter be the subJect of a nit. The person faking
dep_os1t10n may compel attendance of witnes es by ubpoma and
capia .
. Execut ion s i ue OD: :final judgment, and are returnable within
1xty day . .r o xecut1on issued in an action fonuded on contract merely can_ be levied on the body of the debtor except for
breach of _promi e of marriage, miscondu t or n glect in office
or _professional employment , or breach of tru t. Real estate
levied on . mu t be apprai ed by three indifferent per sons. Stay
of execution o~ly on appeal or in pecial can es at di cretion
of court. Any Judgment debtor, an execution aO'ain t whom hall
ha~e b een return d ul?-sati ~ed in whol or in° part. may be ex~mr nee! on oath touching h1 property and mean of paving such
Judgment, and may be committed for contempt in case of neO'Ject
o~ refus~l to attend, ~r to_ be worn or to answer any question p~t t o
him durmg the exammat10n .
Exe m_ptions . ~ome teacl, to the value of $1 000. if declaration
to hol~ it a suc_h 1s re~orded. Of qie property of any one person, h1 nece ary appai el and beddmO' and hon ehold furniture
nece sary for_ UJ?porting lif ; arms, ~11ilitary eqnipm ut , unit:orm . o_r mu 1cal rn tnunent own ed by any m emb r of the militia
for _military purp~ e _; any pen ion mon ey r c iYed from the
Umted State while rn_ th: hand of the p 'U ioner; implements
of the debtor' _tradr~ h1_ library not ex "eding $500 iu value; one
cow not ex eedmg$foQ ~n vnlne; an, numb ' r or ' h ep not , ceedOng1nal from

UNIVERSITY OF WASHINGTON

5 2

BANKI .,.G AND

OlVLMEROI L L ... W -C0.1: NECTICUT.

ing ten nor exceeding in all 150 in value; two swine and the
pork produced from two wine or two swine and two hundred
pound of pork; poultry not exceeding 25 in value; certain specified family tore ; the hor e of any practicing phy ician or surgeon
of a value not exceeding; $200 and hi saddle, bridle, harn e s and
buggy; one boat u ed m the business of planting or taking oysters
or clam , or shad, with the ails, tackle, riggin~ and implements
u ed in aid busine s not exceeding in value ;n,200; one sewing
machine in u e; one pew in church in use and lots in burying
ground, appropriated by its owner for the burial place of any
person or family: so much of any debt which has accrued by
rea on of the personal servke of the debtor as shall not exceed
$50, including wage due for the personal services of any minor
child, and all benefits allowed by any association of persons in
thi 'tate toward the support of its members, incapacitated by
sickne or infirmity, shall be exempted from foreign attachment
or execution.
Interest. Legal rate, in absence of express agreement, six per
cent.; no more than six per cent. can be recovered in either case
after debt becomes payabl e; no usury laws.
Jud~ments carry six per cent. interest, bt.t are not liens, and
execution may be had at any time during the life of both parties.
Judgment by default may be obtained within the first three days of
term to which suit is brought, unless debtor makes reasonable defense. Certificate of judgment may be recorded by judgment creditor or his assignee in Town Clerk's office, and such judgment from
the time of filing such certificate shall constitute a li en upon the real
estate described in E?uch certificate, and if such lien be placed upon
real estate attached in the suit upon which such judgment was
predicated and within four months after such j ndgment was
rendered, it shall hold from the date of such attachment. Such lien
may be foreclosed or redeemed in the same manner as mortgages
upon the same estate. and may also be foreclosed by decree of sale.
Limitations to Snits. Open accounts and contracts not under
seal, six years; contracts under seal and promissory notes not
negotiable, seYenteen years; executory contracts, not in writing,
to recover unliquidated damages, three years . Usual exceptions in
favor ot married women, minors, lunatics, and those imprisoned.
The time during which the party a~ainst. whom there ma.y be such
cause of action shall be without t.he State, shall be exc1uded from
the computation. Title to real estate by adverse possession may be
gained in fifteen years.
1'1arriecl Women. By a law passed in 1877, neither husband nor
wife shall acquire any interest in the estate of the other by force
of a marriage contracted subseqnent to April 20, 1877, except as
to the share of the Rurvi vor in the property of the other; and in
such a marriage, the separate earnings of the wife sha1l be her
sole property, aud the wife shall have power to make contracts
with third persons, and to convey to them her real or personal
estate in the same manner as if she were unmarried. All her
property shall be liable to be taken for her debts in the same
manner aud to the same extent as if she was uumarried-except
that the property of the husband, when found, shall be first applied
to satisfy liabilities incnrred for the support of the family. On
the death of the husband or wife, the survivor (except where by
a written contrad made before marriage, or after, either party has
received from the other what was intended as a provision in lieu
of the statutory share) shall be entitled to the use for life of onethird in value of all the property, real or personal, owned by the
other at the time of his or her decease, after the payment of all
debts and charges allowed against the estate. The right to such
third can not be defeated by will. Where there is no will the
survivor shall take such third absolutely, and if there are no
children, shall take one-half absolutely. In cases of marriages
contracted prior to April 20, 1877, the husband and wife may enter
into a written contract for the mutual abandonment of all rights of
either in the property of the other under previous statutes, or at
common law, and for the acceptance instead thereof of the rights
given by act of 1877, and when such contract is recorded in the
Probate Court of the district and the Town Clerk's office in the
town where they reside, the provisions of act of 1877 shall apply to
such marriages. In marriages contracted prior to April 20, 1877,
the wife remains under the same disabilities as before the law of
1877 wa pa sed (unless written contract is made and recorded as
above mentioned), that is, her husband must join her in all conveyance of her estate, and a11 action can be sustained against her
only upon 1:1ny causes of action which accrued before her marriage,
for torts committed by her and upon contractR made by her,
upon her per onal credit, and for the benefit of herself, her family
or her joint or separate estate. Contracts which by expre s agreement charge e tate held to her sole and eparate nse may be enforced again t snch estate. Her property is not liable for her
husband's debt , nor can his interest in her estate be taken for
hi debt during the life of the wife or of any child that is the issue
of their marriage, except for debts contracted by him for the support of his \vife and c:uch issue after his acquiring such interest.
Any marded woman may make a will subject to the marital
rights of her hu band. Dower exists only in real e1<tate of which
the hu band was ci7.ed at hi death. The husband acquires
a right to the u ·e of all the land of his wife during her life,
and if be has a cLilcl by her, and urvives her, then during hiFl
own life a tenant hyconrte~y. Pcr1<onal property of any woman
married incc June 22, 1849, and before April 20, 1877. vests
in her hn ban d a tru tee, to u c the income during his life, subject to the duty of expending what may be neces1<ury of uch income for the up port oi hi wife during her life, and of their children
during their minority, and of expending any part of the principal
that may be nece ary for the upport of the wife, or otherwi e
with her written a sent. Upon the death ot the hu band the remainder to be tram,ferred to the wife if living, otherwi 'e as the
wife mny by wil I have directed, or in defanlt of such wil1, to those
entitled by law to uccced to her inte tate e tate. Married woman
may be executrix, trn~tee or guardian without con ent of her hu band, and the hu band is not liable for her acts and default
nnle s Rnch act are by hi expre direction. Any married woman
over the per ' On and. e tate of who e bu band a con ervator has
beei. appointed, while such appointment i nnrevoked, may lea e,
sell, conwy and have and exerci e all rirrhts in and concerning
her estate in the nrne manner as if she were unmarried.

l\lortga~es of real e tate are executed acknowledged and recorded in the ame manner as deed , and are foreclo 'ed by strict
foreclo ure or by a decree of ale. The equity of redemption exists for a limited time fixed by the court (u uully from two to sbr
months). Chattel mortgage to be gf1od against third parties,
where the mortgagor retain po e" ion, mu t be executed, acknowledged and recorded a mortgages of land, and can only
be made of the following de ~cribed per onal property-with or
without the real estate in which the same is ituated or 11E1ednamely: machinery, engines or implement
itnated irnd n ed
in any manufacturing or mechanical establi hment; machinery,
engines, implement , ca e , types, cuts or plate itnated and
used in any printing, publishing or engraving estabii .. hment;
household furniture in a dwelling hon e used by the owner therein
in hou ekeeping; liay and tobacco in the leat in any hnilding.
Piano, organ, melodeon, and any musical instrument used by aD
orchestra or band. Brick, burned or unburned, in any kiln 01
brick yard. Hotel keepers may mortgage the furniture, fixtures
and other personal chattels contained and u eil iJa the hotels
occupied by them or employed in connection therewith. Chattel
mortgages are forecloRed by sale under order of court.
Notes and Bills of Exchange. Promissory notes made payable to order or bearer for the payment of money only, are negotiable. The laws of this State make no distinction between commercial and negotiable paper, and do not require that negotiablti
notes be made payable at a bank or any fixed place in the State,
unless so stipulated in the note. No days of grace, unless specified, are allowed on non-negotiable notes, or on paper payable
at sight or ou dPmand. A negotiable promissory note payabl e OD
demand is regarded as dishonored ifunpaidfourmonth anerdate.
Demand and reasonable notice are neces ary to bind indor@ers.
Notes or bills falling due upon any holiday, to wit, 1st of Jannnry
22d of February, 30th of May, 4th of July, December 25th, ls11
Monday of September, known as labor day, Thanksgiving, or Fasi
Days, or on the Monday next following such day wben such day
occurs on Sunday, are presentable for payment or acceptance on
the secular day next preceding such holiday. Damages for protested bills, foreign, are from two to eight per cent.. according to
location of State where protested. Protests of inbnd bills of
exchange and promissory notes, protested without thi tat e, -:hall
be JJ7'ima facie evidence of the facts therein Estated.
Suits. Process in civil actions is by writ of summons or attachment. All processes before the Superior Court, District Courr, or
Court of Common Pleas, must be served at least twelve days
before the session of the court; in Court of Common Pl eas for New
Haven county, where defendants reside in town of New Haven,
service made six days inclusive before the session of the court is
sufficient; before a Justice, six days. Where there is process o:l
garnishment, garnishee must be served with copy of writ twelve
day8 before session of the court, whether Justice or other court.
Taxes. Land may be sold for delinquent taxes after due advertising, only so much being sold as is necessary to pay taxes and
costs. Owner has one year in which to redeem, by paying tbe purchase mon ey, with twelve per cent. interest. Any mort gagee m.r
creditor of the owner may redeem within the year, and may hold
the eetate as security for the purchase money and interest as
aforesaid. Taxes shall not be hdd to constitute a lien upon lands
for a greater sum than the taxes assessed upon such lands, so f a1
as mortgagees are concerned, whose title existed prior to the laying of' said taxes.
Taxes arc a lien upon real estate from first day of October of
year previous to that in wbi ch they become due, until one -vear
after they become due. The lien may be continued for five y'enrs
by recording, within first year after it becomes due, a certificate of
lien.
Bonds. notes, or other chose in action , except bond , and notes
secured by mortga!!e on real estate situated in thi S 1 ate. rnny be
exempted from all lo cal taxation by paying to the St a , a tax of 1
per cent on the face amount thereof for five ye&r", or at the c ption
of the 11 older thereof for a g reat1- r or less nnm ber of years at a proportionate rate. Th e ~tl'lte Treasurer indorse the· tt-rm of uch
exemption upon uch bond, note, or other chose in action. or give ·
t o the pen,on paying such State tax a receipt thl'refor de:-cribing
snch bond, 1101 e, or other chose in action. and certifying that ::,;uch
State tax ha1' been paid for one or more years, as the case may be.
All property within the jurisdiction of this State, whether belongin g to inhabitant._ of this ~tate or not, which ' halt pa:,;~ by wil1 or
by the intestate laws of this State, or by deed, gra1 11 , sale, or gift
made or intended to take effect in possession or enjoyment after
the death of the grantor. to any per on in trn,-t or otherwii-:e, other
than to or for the u se of th' father, mother. brother, si-;ter hu ~band., wife, lineal de cendant. adopted child, the l'1wal desceiidant
of a• y adopted child, the wife or widow of a son, tlw b u:,;band of
the d.u11ghter of a de cendant, or 1:some charitable purpose, or pur~
pose strictly public within thiR State, shall be liabk to a tax of 5
per cent of itR Yalue above the sum of 1.0uO. for the n se of th
State. 'l'hi'-' taxi;; known as the" Collateral Inheritance Tax," and
is payable to the Trei; ~ mer of the State by th' cxt'cuior, adm inistrator, or trustee one year from the death of the testator or intestate, or th qu alification of the trust e.
Wills. All person of the age of <.'ightcen yrars, aml of ound
mind, may dispose of their e tate <real or pert-1omll I by will
o
devise, except for public nnd charitable u ·s, or for the care of
cemetcrie or graves. hall be made to auy per 011s but rnch as are
at the time of tbc death of the te ·tator in being, or to 1h ,fr irnmediat e ii::: uc or descendants. "'\Vill muf:lt be in writing, sn b cribed by
tbe te tator, a11d atte tecl by three witneR e , eucb. of them ubcribing in his pn· enc<\ but they will be effectnal b re if' executed
accurding to the 1aw , of the ' tat, or country wher execn tcd. If
after ibe making o1 n, will, the te tator shall marry, or ,f chil~
c1ren an' born to the t ':--tntor, and no provision ii' mad,' in th e will
for surh co11ting •ncy, ·uch rnarria1e or birth hall opernt · a a
revo ·ation of nch will A will or codicil i otherwi e reYoked by
bnrniug, cancl'lill!! tearing, or obliterating it by the te tator or
some p •r on in bi pt e:H·nce hy his dir ction, or by a later wn't or
co<1icil. .A de, i~e or b<'qne t to a 11b cribing witne ._, nr to the
hnsl and or wire of a sub 'Cribing witnes , i void, nnlc.: the will isotherwi e legally attcett'(1, or u11le~ the de"i ee or 1 gatce be an
heir to the teE-tator. Wills arc proved and e tat e' Fettled in th
Prollate Court in the di trict wh r' the decea ed re ·id d.
Original from

UNIVERSITY OF WASHINGTON

BANE:I G AND COMMER IAL LA1V -DELA WARE.

DELAW ARE.
(Revised by \YM. F.

MALLEY,

Attorney at Law Wilmingto n.)

BA KI G L \Y.
There i no g u ral banking act and hnt one tate Bank, which
was chartered by the Legi lature in 1 07. There are no official
examinnt1 ~n and t_h_ bank i:-- m rely required to make a yearly
report of its cond1t10n to the GoYernor or th State. Bank.inCT
cornpauie can only be form '" d by pecial act of the Legislatur e:
and the holders of .::tock therein are taxed at the rate of one-fourth
of one per cen tum on the ca h valu of each eh are of capital tock.

Acknow ledgmen t. ( e Co,u,eyances.)
Actions. Snit may be commence d by capia summoni:-, and
(where d f ndant i' non-reside nt) by attachmen t of property.
Snmmons in Ju tice's ourt may he i ~ned retnrnabl, m fifteen
days from date of issue or maybe made returnable forthwith, in the
di 'Cr tion of th Jn ' tice. In u1)erior Conrt the ummons mu t be
'erv d per onally on debtor before court sits, r by leaYing a copy
of the nmrnnn at his u ' nal place of abode, in pre en ce of some
nice by publiwhite adult p r on, ix day bef )re ourt it .
cation allowed in the ourt of hancery only.
Affidavit s may be admini tered in the fate by the chancellor ,
any judge, justice of tbe peace, or notary public; and out ot the
tate by any official duly authorized to take acknowlet lgments of
deeds, tc.
Cor·pora tions. For religious, charitable, lit rary, and rnanufactnnng µurpo!-'et'I and for the pre,ervati on of animal and vegetable foocl, building a1~ct loan a ·sociations , and for draining low
land-;, ar, rovided for by general incorpora tion act. All others
must be created by Act of Legi latur . Eacb stock-hold er i~ individu11lly liable for tbe amount of capital tock uot paid in in proportion to th amount s n bscribcd l)y him. Col'l)orati ons of other
Lat es may be sned in thi "'Late, and the property of the ame fonnd
b re may be seized by attachmen t.
Assignm ents and Insolven cy. There is a domestic in olvcnt law. providing for a fnll urrender and equal dis t ribution of
ldom n ed. and there is no provision
all property but it is very
in the Act for the discharge of the debtor upon hi s making an
a-signmcn t. The a signec u1n tfile a schedule of property a ~sio-ned
witbin thirty days, and two appraiser ' are then appointed by th e
Chancello r. Assignme nts must be for th e benefit of all creditors
alike.
Attachm ent . Dome -tic attachmen t may be is ued agaiu t
an inhabitan t of this tare, after a return to a summons or capias
issued ten day before;) tbe return thereof, of non e8t irirentus, and
proof of cause of a~tion; or upon tbe filing of an affidavit '' that
the defendant is jn tly indebted to tbe plaintiff in a urn exceeding 50, and hus absconded from the place of bis usual abode, or
gone out of the State with intent to defraud bis creditors, or to
elude procc F, as is believed.' Tbe writ directs the attachmen t of
ttacbment may be disproperty and summons of gnrnishees .
solv d on entering sernri ty to satisfy any judgment to the extent
of the property attached that may be recovered again t the defendant. On retnrn of attachmen t the court appoints three per-:ons a
auditors of the claims of creditors; the creditor at1 aching is allowed
a don hle share for his diligence. Any creditor not duly pre-: enting his c lai m receives no hare in the distributio n. P1 ain1iff is
not required to give security. ·wages are exempt from attachment in New Ca tle County except for board or lod o·ing.
Foreign atta hment may be issued 1;wainst any person not an
inhabitan t of the 'tate after a return of non e< t a in dome tic
attachmen t, or npon atlidavit being made "that the defendant
resid s out of the State, and is justly indebted to the plaintiff in a
sum exceedirnr 50.,, Fo rei 0 ·n attachmen t may also is ue again~t
n foreign corporatio n, but in this ca ... e the amount of the real debt
must be l articnlarly specified in the affidavit. Unlike dome8tic
attachmen ts 1llc plaintiff bas the benefit of hi own discoYery and
irnilar to domestic
does not shar with other creditor . It i
nt of auditors nnd
appointme
to
a
xcept
respects
nil
in
t
attachmen
distributio n amoug cr<'ditnrs. The court or any j udgc upon petition
mav investigat e any allegation in affid,rdt, e -c<· pt a<: to the nmonnt
of t'ht' debt, and dis olve the attachmen t. if snfficient i;;ronud be not
shown. Foreign attachmen t is otberwi~e dissolved by entering
special hail.
Bills and Not s. Acceptanc e ~honltl he in writing on th e
bill. All beck<>, notes, drafts or bill~, foreign or inland, pnyaul e
without time or at si ,g ht, ar clue 011 pn,-:entme nt without grace.
Days of g rn <' nrc allowed on draft~ or bills payable at a different
time from that at which they ar dated, bnt not on checks.
Chattel l\lortgai: e roust be accompan ied with an affidavit that
th· morto-nge is made for th bona _fide purpo e of seeming a debt,
and not t defraud reditors, and if recordec.l within ten day from
the acknowled gment thcr >nf. i,; a valid lien for bre<' years on prsonal property, the po~ ·e .. ion of which may remain in the mortgagor.
Claim Against E tates of Decease d Pe1·s011 are paid in
the following order: 1. Fnn ral xpen e . 2. Bill for m di cin ,
m •di cal attenrlanc e. nur ing, nnd necessar i s for last t-ickne s of the
dccea 'ed . 3. Tot more than one year· wnge ~ of ervant in hon e
and labor on a farm. 4. Hent for not more than one year, t>ither
in C()~1ity
growing a 11 e or in arr arA. 5. Judgment ~ and ct re
r obl1CTaoth
a.ud
,
mortgaS?:e
,
nce
again:-it clecear,:ed. U Hecogniza
. Concal.
under
contra.cts
and
Obliirntion
7.
.
rccor<l
of
tion
tracts nnd<'r hand for the paym nt of money, d<:livery of good ,
war • , or mercbandif '\ •. 0. Other demands.

5 3

Administr ation is granted: 1. To tbe person entitled to the
re iclne. 2. To one or more of the creditor<:. 3. To any nitable
person rc ~id nt or non-reuide nt. Bond mn t be given for an
amount double the value of the e tate . :N"o1ice must be given of
claims aaainc: t tbe deceiis ed within six month' from (Tr anting of
1 tters (txcept claim . . of record), or executor or admin~ trator is
protected in paying debts of _a low r ~ra~e. One ye9:r 1s allowed
for ettlinv thee tate, and until the e:s:p1rat1on of that time, he need
not m,ike ~di-tribnti on , nor i:- he chargeab 1e with interest on the
a sets in hand. Ile rna.v be remoYed upon ufficient cause. Letters
granted in other Stute ' ·an~ produced nnder tbe_seal of f~ e officer ?r
court !?;ranting the eame, 1s compet nt authority for him to a ct m
this tate .
Contract arc joint and everal unlef"s otherwise expr ssed.
C:onveva ncf' of Real Estate mn ·t be und r eal (a croll i
Rnffici1.'nt) and hould be execut d before one " ·itnes at lea t. Deed
may be ackuowl dged out of tbe Stat~ before an y consul-genen~J,
consul , or ommercia l agent of the UJ.?1ted Stat~s, dnJy_ app01pt d 1~
any foreiCT □ country at the place of their respective official residence,
before th~ judac of any di trict or circuit court of the United tates,
or the chancellor or any judge of a court of r cord of any Stat ,
Territory, or country. or the mayor r chief officer of any ~ity or
borouCTh, an I certified under tbe band of such chancellor , Judge,
mayot or officer, and the seal of hiR office. court, ci1y, nr borough ,
by certificate endor ed upon or annexed to the deed; or such
acknowled gmenL or proof may be taken in anv uc? court and Ct>rtificd under the hand of the clerk or other officer of said court, and tlle
eal of said court in like manner. In ca e of such certificate by a
judge, to e seal of his court may be affi:s:ed to his certificate, or to a
certificate of atte ta<ion of the clerk or keeper of the seal. Snch
acknowled gment may also be taken by any commissio ner of de d.s
for this State, or by a notary public of any Htatc or Territory. W 1fe
mnet ioin in deed to bar do,ver , and hu band to bar courtesy.
.A d 'e d by a corporatio n may be executed and acknowled ged by
the pre1:.<id eut or other presiding officer duly authorized by resolution of the directors, trn tees. or other managers, or by the legally
.
constitn tcd attorney of such corporatio n.
Deed must b recorded wi rhin three months after sealrng and
de 1ivery, to avail ,.gain t creditors, mortgagee , or cona fide purchnserl', without notice.
Cot . ..Non-reside n t plaintiffs may be required to give .. ecmi.1
for co ts .
Courts. Terms and Juristiiction. 'T'he different courts of the
State arc as follow . . : Court of Error and Appeals ; regnlar teTm at
Dover, thirc.l Tnc-:day iu June and Jannary. Court of Chancery;
regular terms. ew Castle County, at \Yilmingto n: on the fonrrh
Monday in March and second Monday in eptem ber; Kent County,
at Dover, third )Iondav in ~J arch and t bird Monday in 'eptember ;
r st
nsse::s: County, at Geo'rgctow n, se• oud 1\Ionday in 1\I~rch _and fi_
1\Ionclay in September . Orphan·' Court. terms nre 1dent1cal with
thoo..:e of the onrt of hancf'lT. .,nperior ourt, Oyer and Terminer. and Con rt of Gener11 l es,.:ion of the Peace and Jail Delive rY. Two additi.onal term of t he nperior Court, aud al o of the
Court of General "'es ion of the Peace and ,fail Delivery nre held,
commenci ng on the third )Ionday in September and tbe fir ' t ?J~nday in Fcbrnary, respectiYc ly, of each and every y ar. Jur1s<l.1ction-Tbe t,11perior ,..,omt hn jurisdictio n in all civil caFe . Rl-'w1lnr Terms- Kent. third l\[onday in April and Octoberi~Suc: 'ex, first
:Monday in April and October; ... ew Ca . .otle, fourth mon<ln.y aft~r
commence ment of April 1erm in Kent, a11d fourth :Monday m
Xovember , and additio11al term in February and eptember. a
abo,·e. Justice·s jnri diction, $;!00.
I>epositi on . Io any suit pending, the prothonota ry, on application . enter a rule commissio n on the part of tb applicant to any
Commissi oner of the State or other per 'on . The commi sion i -:11es
on ten days' notic of interrogat ories filed. Exe 'ptions to int rrogatorie must be filed before tbe commi ._ ion issu s, and are h( ard
before a judge at charnhers. ;Exception to the execution must be
filed withm two days after publicatio n.
NOTE. lf the Commis,J oner mploy a clerk, add "Tbe clerk by
me employed in taki11g, writiu~, transcribin g. and eneTo ing the
.: aid deposition s, bayin g first duly taken the oath assigned to the
aid commissio n according Lo the tenor thereof.'
Execn tions are a lien upon per onalty from the time the sh riff
received the writ, if actual leyy be made within ixty day thereafter. Lien remains in force three year . Ex cution shall be i ~ned
wi t hin five , ear after date of judgment. Goods and chattels of a
trnant are liable to one year's rent in preference to the execution.
'l'here is no redemptio n on property sold under execution or mNtgage . In Te w Castle County wage for a month not exceeding 50
of e mployes are preferred to the execution. Stav of si month' i
granted in onrts of Record upon judgment ' recorded for wa t of
affidavit, of dc1e11 e. provided secnri1y be gi en within tv, nty days
a.ftt'r jndgment . In Jn~tice's Courts defendant may have ix
months' -:lay. upon pleading bi' freehold· nine months' tay upon
givino- security.
Exem.J)t ions. ~o homestead law. Famil y pictu res, Bibl e, and
library; lot iu burial-gro und and pew in church; all wearing apparel, sewing macl.Jines in privat e families, and too] not to e:xcced
$75. In addition, debtor, where bead of a family, mny claim $200
of per onal property. The provi ions of the exemption law extend
and apply to a 1,ereon dying and lewing- a widow. giving anrl securing to ,_ uch widow the -: ame benefit of e:s:Pmption that her bu band would lrnve had if liviug. The widow or one dying ins lvent
is cntitl ct to have laid off t o ber good not exceeding in value$•) O,
to be selcct~d bv her. \Vn o-es are exempt from execution attnchm ot in New Ca.etl County.
Garnishm ent. All per ons except public officer • attorneys,
etc. are subject to 8Um mon as garni::<hee . Wage ~are not suhject
to garnishme nt in N ew Ca tle County.
Homeste ad. Tber is no home teacl law in Delaware.
Int rest. Legal rate i 6 p r ent. Any person who takes mor
for th me or th loan of money shall forfeit aud pay to any one
snii g 1or th' same a snm equal to the money loaned, one-baU for
the u se of the tate, and the other for tl;le party uing.
Judgme nt of courts of record are 1i ns upon all real estate
of the d btor in the county where judgment is enter cl from their
date, but the lien may be xtended into eith r or both the other
Original from
J..

UNIVERSITY OF WASHINGTON

584

BA KING A D CO~IMERCIAL YiA WS-DIST RI T OF OOLUlVIBIA.

counties. Judgments can only be obtained in this State upon
judgments in other t ates by suit, upon a certified copy of the
record of said judgment authenticate d under the Act of Uongress
passed iay 26, 1790.
Transcripts of judgments reversed before justices of the peace
may be entered in the Superior Court and thus be made liens on
real estate. Satisfaction must be entered within sixty days after
payment.
Limitation s. Jt1dczm ents and specialties are merely presumed
to have been paid after the laps e of twenty years. No action of
trespas , replevin, detinue, debt not founded upon a record or
specialty, as umpsit, or action upon the case shall be brought after
three years from the accruing ot the cause of action. Actions on
promissory notes, bills of exchange, or acknowledgm ents under
hand mu t be brought within ix years. On recognizance s of
sheriff, administrato rs' or executors' bonds, within ix years from
date. Bond of guardian within three years from the determinatio n
of guardianship .
Acknowledg ments to r emove the bar of the statute must be of a
"subsi ting demand or indebteanes s."
Married Women retain their real and personal property owned
at marriage (where married since April 9, 1873), or received from
any person other than the husband. May receive wages for their
personal labor, and prosecute and defend suits for preservation
and protection of their own property, as if unmarried, and the
rents, issues , and profits of their separate estate are not controllable by the husband. Dower. The widow is entitled to one -third
partof all the lands and tenements whereof her husband was seized
at any time during her marriage, unless she shall have relinquished
such right for and during the term of her natural life. If her husband die without issue or the children of issue, she takes a moiety
instead of a third part of the real estate. A married woman of the
ag~ of twenty-one years and upwards may dispose of h er property,
both real and personal, by will, without the written consent of her
husband, but not by deed. Two or more witnesses a1 e necessary
for a will. Husband and wife may testify in all actions in which
either or both are or may be parties to the suit. Her husband is
not liable on any contract for the payment of money unless he be a
party thereto_
Morhmges of Real Property are executed and acknowledged like other deeds. Upon foreclosme of eame there is no
redemption of property. A purchase money mortgage should be
recorded within thirty days to avail against a subsequent innocent
holder.
Protest. (See Bills and Notes.)
Replevin. The writ issues out of the Superior Court to obtain
possession of goods unlawfully taken or unlawfully detained. No
affidavit is required, but before the officer to whom it is directed
can execute it, the plaintiff or some substantial person for him
must enter into bond to such officer to a penalty of double the
value of the goods to be replevined, conditioned to prorncute the
suit with effect, etc. Defendant may give counter bond and retain
the goods.
Summons may be served on the defendant by stating the suostance of it to him personally at any time before the return of the
writ, or by leaving a copy of it at his usual place of abode, in the
presence of some adult person six days before t he return thereof.
Against a corporation may be served on the president or head officer, if residing in the St'lte, and if not, on any officer, director, or
manager of the corporation.
In chancery service may be had by publication under order of th0
chancellor.
Ttt.xes laid and imposed by the levy court of a county or by the
State for its own pnrpos es, are a lien upon all the real estate of the
taxable upon whom they are imposed, for two years, and such lien
has preference to all other liens again st him .
General assessments are made every four years.
Wills. Any person of the age of twenty-one years or upwards,
of sound mind, may make a will as well of real as personal estate.
Every will must be in writing and signed by the testator, or by
some person subscribing t.he testator's name i.n his presence and by
his expres~ direction, and attested and. subscribed in his presence
by two or more credible witnesses, or it shall be void.
A will shall be proved before the register of the connty in which
the testator resided at the time of his death.
A nuncupative will of personal estate not amounting to over $200
and pronounced by the testator in his la t illness in the presence of
two or more witnesses i valid if reduced to writing 1:1nd attested by
said witnes es within three days after. Children burn after the
date of the will of the parent arc entitled to t.h e same share of the
parent' estate as if such parent bad died intestate.

DISTRIC T OF COLUMBIA.
BA KI G LAW.
( Revised by J. J. DARLI GTON, Attorney at Law, Wa hington.)
All banks organized in the Di trict of Columbia, except purely
private bank , are subject to, and governed by, the acts of
Congress applicable to ational Bank association . See act of
Congress approved Jun e 30, 1876.
CO fMERCIAL LAW.
Acknowled gment of deed may be made before any judge
of a court of record, chancellor, Ju tice of the peace. or notary
public. The certificate of th e Clerk of Court as to official character of the justice of the peace or notary should be annexed
Deeds made in any foreign country may be executed and
acknowledge d before any judge, chancellor, notary public, or any
Secretary of Legation, or consular officer of the United States.

Assh:nmen ts and In~olvency muet be accompanied by
inventory under oath, of all assig nor' ' prop~rty, _a list of ~reditor ' with their residences and amount of their claims. Assignee
mus't be resident of the Distr ict. Preferences prohibited. No
insolvency law in the District of Columbia.
Attachmen ts may issue at io tHntion of suit or ubsequently upon affidavit of plaintiff or his agen t, upported by that
of one 'or more witnesses, showing right to recoYer, and that
defendant is a non-resident , or evades service of proces , or ha
removed, assigned, disposed of, or ~creted p~·operty with intent
to hinder. delay. and defraud creditor , or 1s about to do ,-o.
Creditor must give hond, with approved surety or sureties, for
costs and damages if attachment wrongfully sued out.
Corporatio ns for manufacturi ng, agricultural. mining,
mechanical, insurance, mercantile, transportatio n, market and
savinO's-bank purposes, may b e formed by any three or more persons by executing and recording certificate tating corporate name
and object, term of existence (no t exceeding twent,: years e::s:cept
where object is life insurance), the amount of capital stock, the
number of shares, the number and names of trustees or managers
for the first year, and the name of the place in the Distri ct in
which the operations of the company are to be carried on. Nothing but monev can be considered as payment of any part of the
capital stock,· and each sh11rebolder is individually liable to creditors to an amount equal to the stock h eld by him. One-half of the
capital stock must be paid within one year, and the other half
within two years, from incorporatio n. Foreign corporations doing
business in the District are subject to ervice or i:,ro ces on their
agents, or persons conducting ,_, u ch business, or h y leaving opy at
principal place of business therein.
Courts in session continuously throughout the year. e~cept
August. Suits ori. contracts. accompanied by sufficient affidavit of
right to recover, result in jndiment in three weeks, without trial,
it filed twenty day s before first Tuesday of any month except
AuguFt, unless defendant files sufficient affidavi t. of defense.
Justices of the Peace have exclu sive jnrisdiction up to $50, and
concurrent jurisdiction with upper court between $50 and $100.
Days of Grace allowed on all commercial paper except
checks and sight draft .
Execution s may issue jmm ediately upon rendition of judgment. but li able to be s11perseded by appeal, accompanied 1Jy approved bond for payment, fil ed within t wenty days after judgment
e.xclm,ive of Sundays.
Exemption s. In addition to wearing apparel, etc., household
furniture to tbe value of $300, impl ements of debtor's trade or business to the valne of $200, tock for carrying on bu ine s to amount
of' $ZOO, one horse, harnet-<s and c art . wagon or dray, and ea,nings
of married men or beads of families, not to exceed $100 per
month.
lntere~t 6 pPr cent, except that, by contract in writing,
parties may stipulate for in~erest not to exceed 10 per centum.
Oral contract for more than 6 or \Vritten contract f or more than 10
per cent forfeits all interest. and entitles the debtor to ue for all
interest paid under such contract, if suit brought within one year
from time of payment.
Judgments lien on nnincumbere d real estate from rendition,
and on personulty from deliYcry of execution to Mar hal. Incumbered real estate not affected by judgment until creditor's bill filed.
Judgments valid for twelve years, and may he continued in force indefinitely oy sci. fa. R eal estate un affected by judgment of Ju ticc of the Peace, unless filed in Supreme Court.
Limitation s. Three years on simple contract debt , and twelve
yenr on specialties, with usual exceptions in favor of per ' on under
disability, other than non-resident s.
l\'larried ,vomen hnve separate estate in all property owned
at time of marrjage, or acquired during m arriage oth rwise than by
gift or conveyan ce from husband. May contract, n0 and be ued in
all matters having relation to such sole and separate e ' tate; but the
contract must be in a matter hm•ing 'r elation to uch estate. Incompetent to carry on a m ercantile business, nor liable for debt contracted in attempting to do so. Earnings during coverturc ar
property of the husband and liable for hi a.ebt .
Mortgages . Entirely supplanted by deeds of trust, requiring
no court proceedings to foreclo e. J oinder of wife nece sary to
bar dower where property i subject to no prior incnmbrance .
Chattel trusts void unless recorded in twen ty days after ex cution,
and invalid as to property exempt from execution, ut ·upra, unless
signed by wife.
Notes and Bills governed by the law, m erchant unaffected
by any local legislation or peculiarities . Legal holiday are New
Year's Day, F ebruary 22d, May 30th or May 31st if 3Uth falls on
Sunday, July 4th, Decemb er 25th, Inauguratio n Day, and such
days a the Presid ent may appoint or recomm nd a days of public
fasting or thanksgiving . All note . draft , checks, or other commercial or negotiaole paper falling due on holidays are treated as
maturing on the day previou .
Protei,t. Inland bills of ex hange and promi ory notes, as
well as foreign bills of exchange, may be prote ted by notaries
public, who e original prote t, tating pre entm eut, non-acceptanc , or non-paymen t, and ervice of notice on any of tbe parti ,
pecifying the mode of giving such notice, the reputed pl1;1ce of
resiclence of the party notified, and the p ost otlice n earest thereto
is prirna facie evidence of tbe fact contaiued therein.
'
Sui ti;;. Court costs are 10, and ·1 additional for each defendant
sued. For additional particulars ee ourt , supra.
Taxes. One and one-half per centu m upon a seseed value of
property, real and pen,onal. Penalty of 2 per cent per month
for d fault in payment.
Wills. 'ro pa s real e tate, three witne es required; valid as
top r onalty without wi tnes es. Wi lls pa sonly real estate owned
byte tator at time of execntion, unle contrary intent ex pressly
declar din in trument. Administrat or appointed and duly qualified in any of tbe State may administer upon a ets in the District
without ancillary adm.in,i .trafi.on therein.
ungina rrom

UNIVERSITY OF WASHINGTON

BA YI G

D OO1\I~IER I L LA,

FLORIDA.
B . . NKL.
(Revi ed by WrLLIA.M

. BLo

L \.W.
T,

Attorney at Law, Pensacola.)

There may be establi hed, by fl:rn (5) or more per ons, in any in~orporat d town or city having 3,000 or more inhabitants, a banking
association or institution, with corporate power or privil ge , with
a capital of not le
than $50,000.
In towns of not le' than
3,000 inhabitants the capital may, with the Co mptroll er' approval,
be not less than $15,000.
aving bank may hav not le than
:$20,000 capital. Bank ar form d a other corporation a.re, and can
not b gm bu in
until authorized by the omptroller. The Comptroller of the tate may in pect and t1upervi e the business of the
ank, and in pect and examine it book , paper , documents,
minutes, and everything p rtaining to the acts of the bank. Banks
are required to make a semi-annual return to the tate Comptroll r
f re ource and Iiabilitie , and ad Terti c in January of each year
amount of toc k, property, and contractual indebtedness. Before
organization fifty (50) per cent. of the capital stock mus t be paid in
ca h; ten (10) p r cent. ach month thereafter.
tockholder are
'ndividually liable to the extent of their tock at the p ar value
t hereof, in addition to the amount invested in said hares. Directors must be citiz ns of the Uni ted tate , and own ten (10) hare of
stock of 100 per bare.
The omptroller, with the aid of the ourts, winds up the affairs
of insolvent bank .
0 DIER I L L . . W.
Acknowl d~1nents. Deed to freehold, or inter t therein for
a term of over two _year , mu ,t be in writmg, 'ealed (or ~crawled) and
delivered in the pre ence of two witn
es . 1'ran ' fer and re lea es
subject to ame rule . In ca e a deed, morto-age or other in trument shall be executed in another tate Territory or Di trict ot
the United States the a knowledgment may be made b efore any
Judo-e or Clerk of a court of record, Notary Public, or Justi ce
of the P eace havino- a eal, or before a Commi,; ion r of Deed for
Florida. The ea! of the officer taking the acknowledgment mu t
be nflix: d. In order to convey dower all deeds of conveyance,
mortgage or transfer of interest in real e8tate hould be igned by
husband and wife, and the wife's a cknowled2:ment be eparately
t aken. Th wife's separate real estate can be conveyed only by the
j oint deed of hers If and husband and confirmed by h r eparate
acknowledgment. Th
ignatures of partie to the instrument
must be witne 'sed by two persons, who will sign as witne se .

I IAssignment and Insolvency. Assio-nments by insolvents
are provided for by law. Preferences are not allowed. All prop rty,
except that which i exempt, mu t be urrendered to the a ignee.
Assign e gives bond and winds up estate. The a l:lignment
does no t relea "e d btor from debt
Attachment proce may i ue upon affidavit made, etting
forth that amount is actually due; that plaintiff ha" rea on
t o believe defendant will fraudulently part with hi property
befor judgment can be recov red, or i actually removino- his
property, or i' about to remove it out of the tate, or reside beyond
the limit thereof, or is actually removing out of the tate, or abscond ' or conceal hims lf, or is ecreting property or fraudulently
dispo ino- of 8ame, or actually removing, or is about to remove, beyond theJudicial Circuit in which he, he or they re ' ide. Plaintiff
mu t give bond, wi.th two ecuritie , in at lea t doubl the debt or
sum demanded.
o arrest allow d in civil action . Garni hee
proce s is u on j udgm nt r ndered .. Writ of o-a~nishment may
also be i ' ned at comm ncemcnt of Ult or at any trme afterward,
rovided the plaintift~ hi a&ent or attorney, will make affidavit
that he doe not bcli ve the a.efendant will have i n hi posse ion,
within the tate and county, visible property on which a levy could
be made, uftici nt to atisfy uch execution ash beli ve he hall
be able to obtain.
Corporations may be organized for any law ful bu iness under
a general law. ~to kholder liabl only for amoun.t unpaid upon
sub cription.
barter fee of two per cent. on capi tal ._tock. payable to the ' tate, bnt no f ee i le s than $5 and none over "' 250 .
ircnit .onrt hold two terms a y ar in each county,
and ha v • ori o-inal j uri diction in all equity ca es, also in all ca es
at law not oo-nbmble by inferior court8.
ounty ourt have
juri 'diction ofamonnt not exce ding $500.
ounty Judge , at all
ime op u for probat bn ines , hav full probate powers, have
also civil jnri 'diction to extent of $1U0. Ju 'tice'sjuri diction, $100.
Dav of Grace. Three day are allowed. .r one on sight
draft.'.
E ·ec ntionsarereturnablewhen ati ' fi d, heriffreporti~~progre at each term.
ale day fir t fonday in each month. .l.'lo tay
.aw.
o r demption of property old under execution .

Judgment or a court of record are a lien upon real estate of
debtor within the count.)'." where _rendered, a1:d mar be exten~ed to
other countie by recordmg certified transcnpt of Judgment m any
county where a lien is sought.
Limitation of Actions. Civil action can only ~e commenced within the followino- period after the cause of act10n shall
have accrued: Within seTen years, action for the recovery of real
property; within seven years, action on judgments of Co~rt . of
the United tates, or of any tate or Territory other than .B londa.
it elf· on Florida judgment , twenty (20) year .
on tract ~r
obli~~tions in writing. under seal, t~enty years; . OI!.trac.t m
writing not under seal, five y~ars; or act10_n for a_ny article c~arged
in a tore account and all acuon no t herem pec1fically mentioned,
four year ; trespas~ to realty, taking, detaining or injury to chattels,
for relief on ground of fraud upon contract not founded upon
in trument of writing, except open account for goods, wares and
merchandi e, three y "'ar ; action for libel, slander, a sault, battery,
fal e imprisonment, all: open ac~ountf?r goods, wares.and ~e:?h~n;
di e, two years. Actions agamst railroad compame for killU?,o
cattle, an d on action by the tate for a statutory penalty or forf e1ture one y ar.
l\larried Women retain their property, real or per onal, owned
at marriage or acquired thereafter by gift, devi e, de .cent, or purcha e, and it is not liable for his debt except by her wntten con ~nt
executed accordino- to law regulating conveyances of married
women. Hu band1ku t join in all ale , transfer and conve}'."ance1
of the wife's property, xcept when he ha be n .adjudg d .m ane
f r more than a year. \ idow take a.., dower a life es tat~ m onethird part of the real e tate of which her hu band was se1zed and
po e sed at any time during her cover~ure, and an abs?lute onethird of all personalty; or may at her op_t10n take as an he_u equally
with the children of the husband, and 1f there are no children she
will inherit all the property, real and personal.
Mort1:ages of real e tate mu t be executed and proved or
acknowledged in the same manner a deeds, and io be effectual
ao-ain t creditors or bona .fide purchaser , mu t be recorded. Are
rireclo ed by bill in equity in the Circui~ Com:t. Chattel morto-ages must be re corded, unless property 1s delivered to mortgagee, and remains in hi po se ion.
Note and Bill of Exchange. There is no definition by
statute or d ci ion of commercial paper, and no requirement that it
shall be made payable at a baok or any fixed place. Five per ce11:t.
damage are allowed on foreign commercial paper P.rotested 111
thi
tate. Bills of exchange, bank checks an.cl proID1ssory notes
which are pre entable for payment or acceptance on Sunday,
N ew Year' Day Chri tmas Day, 3d of June, 4th of July, 22d
of February, and geueral el ction day, or any day appointed
by the Pre ident of the United tates or by the Governor of
the tate a a day of thank o-iving or fa ting or prayer or
other religious observance, h~l be deemed presentable for
payment or accept!lnce on the &ec1~l ar or bus.iness day next
preceding such holiday. If :rew Years Day, Chn tmas Day, 4th
of July, or the 22d of February shall fall on Sunday, the l\[onday
following hall be a holiday, and paper presentable on that day
shall be presented on the Saturday prece~ing. 'rhe first Ionday
in eptember i Labor day and a legal holiday.
uit . Action at law are commenced by filing a precipe with
the Clerk. Per onal ervic i r quired except in suit by attachment. Writs are returnable on the next rule day, provided ten
day intervene; if not , then on the rule day in the next uccceding
month. If no appearance of defendant, default is entered forthwith. Default may be entered for want of plea or other pleading
on rule day, next after appearance day.
Taxes. Lands are old for taxe and may be redeemed within
two year , by payment of all delinquent taxes, with interest at
the rate of twenty-five per cent. per annum. and fifty cents
redemption feei:i. Taxer are payable I owmber 1, but not collectible by compulsory proce until April t following.
Wills of real estate mu t b atte .. ted by two witne se . Wills
of per onalty r quire no witne se .

GEORGIA.
BANK! ... G LA\V.

Courts.

E emptions to every bead of a family re iding in the tate
Home toad of 160 acr
of land, nnd improvement , if in the
country; one-half a re of around, if in an incorporat d city or t~wn,
together with $1,000 worth oi p r onal property. The ex mpti?ns
in a city or town hall not xtencl to more improvements or bmlding than the r t- id nc and bn in
hon e of th owner.
o
property i ex mpt from ale for taxe or a c ?lent , or. for
obligation contra ted for it purcha e, or the erect10n or r ipa1r of
improv m ent tb reon, or for hon e fi ld or other labor performed
th reon. The wa!s of every lab r r who i th h ad of a family
re idiug in t!J e State, are exempt from attachm nt.
1

Int r t. Ei <rht p r c nt. i allow d on judgment and contract wher i11t;re ti payabl but n ra te i specififd.
ontrart for more than t n (10) p ' r nt. i II nriou~, and all int rest
forfeited.

585

-FLORIDA, GEORGIA .

(Revi ed by ELLI

l1

GRAT, Attorneys at La"'',

tlanta.)

Bank , by a provision of the Constitution, and the Statute, are
charter d only by the Legi lature.
The State 'J.1rea urer i al o Bank Examiner. He is required to
visit each bank chartered by this tate at l ast once each year· he
13hall examine and make report to the Governor of the result of bis
exam inations. Hi report shall embrace the names ot the Pre ident
and Dir ctor , and a li t of the 'tockholder on the day of the regular meeting of the Pre id nt and Directors, next preceding the date
of his report; the amount of tock owned by each individual or
company, and th amount of money actually paid in on each bare·
the amount of bills of other bank of the tate, of gold, ilver and
bullion in th ir vault ; the amount of debt due them within and
without the tate, o de ignating them, which may De denominated
specie funds· the active or runnino- paper; the amounts in nits,
under prot st and not in uit, clearfy statioo- what amount of such
debtt1 is good, what doubtful, what bad, an d, hat lo t· the amount
of bill in circulation the amount on d po it, and th e highest
amount due and owing by each. By act of 1 \.Jl it i provided that
Bank shall make quarterly r port ' to Examiner: th y hall not
reduce cash in hancl below 25 p r cent. of d nHtnd depo it . If
capital stock i impaired by lo se , u h shrinkage shall be
charged to profit and loss.
o bank ball loan to any one p r on
an amount more than t n per cent. of th capital to k unle s
s cur d by good ollateral · nor shall any ofl:i c>r of the bank re
a loan to any amount cj'fj~ }H 61Mi ng up ampl
curity.

UNIVERSITY OF WASHINGTON

5 6

BA KI G AND COMMERCIAL LAWS-IDAHO.

'l'he penalty for failure to make reports,·a"' reqmred of Banks, is a
forfeiture to the tate of t\\0 per cent. per month on the capital
stock for each month each default shall continue. Iaking a fa! e
affidayit to a return or report js perjury. Bank Examiner may
demand a special report at any time.
By Act of 1 7 it i made a misdemeanor for any officer or agent of
a bank to borrow auy money from the bank except by permission
of a majority of the Directors or a committee of such Directors.

COMMERCIAL LAW.
Acknowledgments may be taken within the State by a Judge
or ()!erk of a court of record, Commissioner of Deeds, Justice of
tL,, l'eace, or Notary Public. In other States or Territories, by a
Commjs ·ioner of Deeds for Georgia, or Judge of conrt of record;
in the State where executed, with a certificate of the Clerk, under
the seal of such Court, that the court is a court or record, and ot
the genuineness of the signature of such Jud~e; and in foreign
countrieA by a Consul or Vice-Consul of the Umted States. Deeds
to realty should be attested by two witnesses, one of whom shall
be an official authorized to take acknowledgmentEl. Deeds must
be fl.led for record at once, in order to affect third parties.
Assignments and Insolvency. A debtor may prefer one
credttor to another, and may create a bona fide lien, by mortgao-e or
other legal means, may sell in payment of the debt, or tra~sfer
papers as collateral security. But every assignment made by a
debtor insolvent at the time, either in trust or irr behalf of creditors, is fraudulent, and null and void, when any trust or benefit is
reserved to the assignor, or any person for him. There is no imprisonment for debt. Voluntary assignments shall have attached
to them, sworn to by the person making assignmeIJt, " a full and
complete inventory and schedule of all the assets of every kind
held, claimed or owned by such insolvent person, firm or corporation" and of the creditors in detail, giving name and amount of
each, and their residence at the time of making assignment. Filing false, deceptive or incomplete schedule is punished as perjury.
In case any corporation (not municipal), or trader, or firm of
traders, shall fail to pay matured paper and be insolvent, three or
more unsecured creditors, or creditors representing one-third in
amount of unsecured claims, may file a bill in equity, have a Receiver appointed, and an injunction granted to restrain interference with such Receiver. The Receiver shall collect assets, and
under the direction of the Court distribute the same pro rata
among creditors, recognizing, however, liens created before the
fl.ling of the creditor's bill. Any creditor may become a party to
a bill o:f this. kind. The Chancellor at the end of the suit may, if
he considers 1t a proper case, recommend the debtor released from
the remainder of Ms debts. It has been decided that a bill of this
kind will not lie after a dissolution of the firm.
Attachment process may issue when defendant resides out of
the State, is about to remove without the limits of the county,
absconds, conceals himself, or resists legal arrest, attempts to
remove property beyond the State, or fraudulently disposes of property, or shall threaten or prepare so to do, or creates a fraudulent
lien thereon. Attachment lies at any time to recover purchase
money when due, when the property purchased remains in the
possession of the debtor, or of any one holding the same for the
benefit of the debtor, or in fraud, against tlle creditor. Plaintiff
must fl.le bond in double the amount involved. First attachment
levied has priority. Garnishment issues in aid of attachment or
judgment, but journ~ymen mechanics and laborers are exempt
from garnishment on their daily, weekly or monthly wages. The
maker of negotiable paper in the hands of plaintiff's -debtor is
liable to a garnishment.
Courts. Terms and Jurisdiction. Superior Court sits in each
county twice a year, and has original jurisdiction in law and
equity, except in probate matters, which are passed upon by the
Courts of Ordinary, which hold terms on the first Monday of each
month. Justice's jurisdiction, $100. In cities there are City
Courts, generally with unlimited jurisdiction, except in suits
respecting title to land, equity and felony cases.
Executions may issue at any time after judgment is signed and
!lled, and may be levied at once, and are returnable at the next
term of court. Stay of sixty days may be had by giving bond and
security. In Justice's Courts stay is sixty days where over $30
are involved; forty days, below that sum. Property must be advertised once a week, for four weeks, before sale. No redemption of
property sold under execution except for tax, when owner may
redeem within one year.
Exempttons. The Constitution ot 1877 provides that there
"shall be exempt from levy and sale, by virtue of any process
whatever under the laws of this State, except as hereinafter excepted, of the property of every head of a family, or guardian, or
trustee of a family of minor children, or every aged or infirm person, or person having the care and support of dependent females
of any age, who is not the head of a family, realty or personalty,
or both, to the value in the aggregate of $1,600.,, 'l'he exceptions
are for taxes, purchase money of the homestead, labor done thereon or material fnrnished therefor, or for the removal of incumbrance . The debtor has power to waive or renounce in writing
the right of exemption thu provided, except as to wearing appar l and not exceeding $300 worth of ~10nsehold and kitchen furniture, and provi ion , to be selected by himself and his wife, if
any; and he shall not, after it is set apart alienate or encumber the
prop erty so exempted, but it may be old by the debtor, and his
wife, if any, jointly, with the sanction of the Judge of the uperior
Court of the county where the debtor resides, or the land is situated,
the proceeds to be reinve ted upon the same u es.
Interest. Legal rate is seven per cent., but contracts in writing
may be made up to eight per cent. U ury forfeit excess charged.
Judgments bear lawful interest. Deeds tainted with u ury are void
as title.
Judgments are liens from their date, on all real and personal
property of the debtor not pecial1y exempted, except promissory
notes in hands of defendant.
tocks in incorporated companies
are made specially liable by tatute. Judgments are rendered only
at second term of Superior Court, and City Courts, except in the City

Court of Atlanta where case "tand for trial at :fir"'t term. Judgments become dormant in seven years, if no execution is i sued
upon them, but may be revived by proceeding within three years
from the time they become dormant. Judgments in United tates
Courts and Justice Courts mn t be registered in the office of the
Clerks of Superior Courts "ithin ten days to affect innocent purchai-ers. In counties, other than where obtained, within thirty days.
Against non-resid.ents mu t be recorded in ten day in county where
property is located to affect it so far as third partie are concerned.
Limitations of Suits. Open accounts and contract not in
writmg, four years; contract in writing not under seal, six years;
bonds and instruments under seal, twenty years; foreign judgments, five years. Revivor: Ne\V promise in writing, or payment
on note indorsed by debtor. Adver e posse sion of land for twenty
years gives i;ood title by prescription, except again t the State, and
persons under disability; and adverse posses ion for seven years,
under written evidence of title, gives like title by prescription, unless the title be forged or fraudulent. A like title to personalty is
acquired by four years adverse possession.
Married Women. All property of the vl'ife in possession at
the time of marriage, or afterwards acquired by her, is her separate
property, and not liable for the payment of any debts, defaults or
contracts of the husband. Wife can not bind her separate estate
by any contract of suretyship, whether in behalf of her husband
or any other person. The wife, by consent of her husba11d, published for one month in a newspap er, may become a free trade1', in
which event she is liable as a femme sole. Widow takes dower in
one-third of all the lands of which her husband was seized at his
death.
Mortgages pass no title, and are simply a security for a debt.
Must be executed and proved before a Notary Public, Justice, or
Clerk of the Superior Court, and should be recorded at once to affect purchasers and subsequent mortgagees without actual notice.
Mortgages on realty require one witness besides the attesting officer.
Mortgages on personal property are foreclosed instanter and ex varte.
On real estate a rule nisi issues at one term, and rule absolute at
next.
Notes and Bills of Exchange. Notes and contracts taken for
personal pro1,erty delivered to purchaser, which contain reservation
of title in seller, mnst, to make the reservation good, be recorded at
once, and be attested by Notary or other official. Deeds to realty and
bills of sale to personalty. made to secure debts, should be recorded
at once. Deeds in county where the land lies, and bills of sale in
county of maker's residence. No days of grace are allowed on ,:;:jght
papers. When bill,:;: of exchange and promissory notes are made for
the purpose of negotiation, or intended to be negotiated at any chartered bank, and the same are not paid at maturity, notice of the nonpayment thereof and of the protest of the same for non-payment
or non-acceptance must be given to the indorsers thereon within a
reasonable time, either personally or by post, or the indorser will not
be liable thereon; but it shall not be necessary to protest in ordn to
bind the indorser, except in the following cases, to wit: 1st. vYhen
a paper is made payable on its face at a bank or banker's office.
2d. When it is discounted at a bank or banker's office. 3d ...When
it is left at a bank or banker's office for collection. And in
all such cases days of grace must be allowed.
The last day
of grace is the day of maturity. Accommodation indorsers are
sureties, and indorsers may be sued in the same county and
action with the maker, drawF, or acceptor. A recent statute provides that the 1st day of January, 22d of February, 26th of April
4th of July, 25th of December, and any day appointed by the Gov:
ernor of the State, President of the United States, oi· the <'ivil
authorities of !111Y city, as a fast day or thanksgiving day, shall be
held and considered as Sunday, for all purposes connected with
presenting for acceptance or payment, and protesting and giving
notice of dishonor, of any hill of exchange, draft, note, check or
order. If a holiday fall on Saturday, paper due on Sunday payable
on Monday. If holiday fall on Monday, paper due that day is payable on Tuesday. Bills of exchange must be accepted, in writing,
to bind acceptor. I~ ~his State it is usual to insert in promissory
notes a clause reqmrmg the maker to pay all cost of collection
including Attorney's fees, but Attorney's fees cannot be colle<'ted
unless a defense is filed and not sustained, and a waiver of all
homestead exemption as against the amount promised is a bar to
homestead or exemption as against such demand. Bv act of
1887, warehouse and elevator receipts, bills of lading ai1d other
commercial paper symbolic of property, including promi sory
notes may be delivered in pledge or pawn.
Suiti;.. Actions at law and equity must be brought twenty days
before the term of court at which they are returnable, except suits
in Justice's Courts for less than $100, when .fifteen days nffice.
Claims sent to this State for collection should be accompanied by
full name of each plaintiff, if a partner hip, or legal style of a corporation, if plaintiff be Ruch. Accounts and unliquidated demands
should be itemized. Affidavits of correctnes of account are valuable when the amount is $100, or le s ; when a greater amount is
involved, they are useless as evidence.

Taxes are first lien on all property; property _sold under tax

n.fas. may be redeemed in oue year.

IDAHO.
BANKI G LAW.
(Compiled by GEo. II. STEWAR'l', Attorney-at-Law, Boise City.)
There is no stat ut in relation to bankb1g. Any per on or perons can engage in the bu iness without aRlzing- any questions and
i respon ible only to those with whom he deals. ~o charter~ can
be granted for banks . .
f
Ongina 1 rom

UNIVERSITY OF WASHINGTON

BANK! G A D

OJ\I MERCIA.L LA WS-ILLI 01S.

l\DIERCIAL LAW.
A<'knowl d gm n t pf com·pynnce or r al
tat nrny b
taken witl11n I he Tcrrit ry by nny jntlg' r cl rk of a court lrnviocr a
i,;:ec1l, or Hll)" ju tic or uotary public. ELcwb re within th l:'nited
tatc or 'l'errito rie , by jndg or cl erk of a court of record, or any
comm ii:- ioncr of deed ' for Idaho. ln foreign conntric by a judge
or clerk 01' a court havin~ a seu I, a notary public, or a mini ter,
commi::a ioner, or
n nl of the l ni.ted "tutes, appoint d to re ide
therein. Witu "
nre not r quired to conv yanccs, but every conveynn affecting tb real state must be ack:i1owl dged or p1·oyecl
and c rt i fled. In relatiou t conyeynnce of real cstc1 te l1 elonging 1 o
tbe community, tb wife mu t join in th conv yance only when it
n1Iects th ho1He ~t<>nd. (Session laws, 1' 1-85.)
Assi~nmP nt s a nd I n so l vency. An imolvent d ebtormaT"be
di charged of his debts hy e:s:ecutino- an assignment of all bi pi·operty, rcn! and per anal, wbich with n s,vorn iu\'entory of property
and 'C bedule or creditort- mu t b filed in the Di tri t Court. At a
creditors rneetiug, held aft "r thir ty day notice o·iv n one or more
as igncrs nut exec ding thre ', ar appointed, and claims proYed.
Court will s t asid prop rty exempt, and issue order for direct
pnym nt f mon y where no mortgage or pl dge had been giY n,
or where u h s cnrity, 1f gi\'ell has been rendered necratory by
act of defendant. Plninti:ff mu t furnish bond, -with two ,' ufficient
snretics.
Attachmen ts. The plaintiff at the time of issuincr the summon8 or Rt nny time afterward , may have the prop - rty of the
defendant attached aR ccnrity for the ._ ati~faction of auy judgment
that nrny be recorded unle
the defendilllt giYe security to pay
nch judgmrnr, :n the following ca es :
1. In au acrion upon n judcrment, or upon contract, e:s:pres or
implit'(l, for the direct payment of money, where the contrect is not
secured by any morto·age or lien upon real or per oual pro:µerty, or
any pll'dge of p Jr onal prop rty.
2. In an action upon a judgment. 0!' npon contract expres .. or
impl i d against a def ndaut not re iding in tbi' ~ta te.
Debt must be due to support attachment.
(hn·nh,hruent process may i:::-sue in aid of nttachment or execn tion and the o·arni bee must' make ans,Yer under oath. Defendant
in a Cl\ il acti, •n for r oYery of money or durnages, under a contract, expres' or implied, may b arrested, when ab ut to depa1 t
from the Territory with intent tu defraud, or when the debt or obligation \\'U $ frnmluleutly con trncted.
Jlil1:s of Lading. :No statutory provision ~ governing the sam e.
Contract ' • .All persons are capable of contracting except
minors, persons of un "ouud mind and person deprived of ddl
right . A writ ten iu ' trument is presumptive evidence of a considernt ion. All contracts may bl' oral e.::s:cept such as are specially
required by sratnte to be in writing. All distinction between
senlct1 and unsealed in t rumen ts are abolished. ·where a contract
i s part])" written aut1 partly printed, th ,nirt n part control the
priu te(l part.
Corporati o ns. AJl foreign corporatiow mnElt, within tbree
month,- after beginning operation", file ,,-ith the ecretary of' tate
al'o with th<> .lerk of the District 'ourt, in th county " ·here the
prin, ip,11 office i located, u de io-nation of some agent upon whom
process ran b "erved.
Penufty. The cteufal to the corporation of the benefit of the
statn tc:::-, limiting the tim e of the co mmencement of civil action
Collaterals. No statu tory regulatibn.
·
Cour-ts. Terms and J 111·i,?dittion. Tb Judge of tbe District Conrt, of Pach of the judicial di tricts of the :::-rate, must annual!) fi:s: tbe time for balding the DiHrict onrt, in the several
counties of his district, by nu ord t' r :filed and ent red bv tb Cieri~
in a, h county of bis district. and said ordrr rn usr be pnblished t\\ o
con~ecntive \\'l'eks in a newspape r- pnbli bed in bi di 'trict; and b e
may hold such special term as h deems prop r aud necessary, by
an order published in the new-pap er in th county where he i to
hold such pecial term, t,, o ·ons cntiYe , ·eek , and have original
jnri diction in all civil case ' involving owr $100. Probate onrt'
are held in cnch county once a month, aud htwc concurrent jnrisdiction up to 500, and concmTt"nt jurisdiction ,dth Justice' '
onrt in all cn ' s. Jnt-tice' juri 'diction, :l,300.
Days of Grace. Aboli b d by the tatutc.
Dt> posit ions. l\fay be tak n before any Judge, Justice of the
Pence Notary Public or Fnttect State
ommiss oner, or any other
pe1" on agreed upon by the pnrtie~. upon notic , ._ ervecl llpon the
opposite party, sfatin!l th, cnnrr. nction. time and place and bl'fore
whom the arne
be tnk 11 ullo\\'ing 01 e dav for eYery t,n•ntv
miles required to bl' tra,·el d ro reach the place \\'·here the :::ame wih
bl' taken. or they may be taken upon commi~ ion is ued by the
judge \\'itb interrognturie attached.

'"ill

Execution is ne at any tim , wit bin fiye yea r after judgment.
The only tay is by 11ppeal, \\'ith ecurcd bond. k:ix month ' allowed
for rec1empticm.
Exemptio n s.
Homestead, not exceeding
5,000, if duly
acknowlcdg cl and recorded; oilice furniture and library, $100:
nee s:::-an household and kitchen fn rniture, and proYisions for fomily
for thrct' months: certain ftll'nt annnnls, etc., \\"ith foo<.1 for 1brce
months; tO\)l ' and im pl em nts of lrn bandry up to :.!00. Librane
of prof' ' ~ional men, and team used by a la borer or t am ._ ter, arc
al o ·:s:cmpt.

Interest. Legal rate, 10 per C(lnt: partie may agree in writi110for H p r cent. per montb. Penalty for usury, 10 per cent. p ·r
annum on principal.

Jndgn1 n t are li en on all real e tate of debtor wirhin the
county, from time of d o k ting, and may be e:s:t nd d to otb(•r
countic by filing- tran cript in Recorder' offic . Li n continue,
two year". Jn, t1c ·
onrt judgment " b come lien ' ·wlH'n c rWiecl
and recorded. 1\Iay be r yfred by iE .. uing exe ntion within limitation.
Limitatio n t o , uit . .
ontract8 not in writing, four y ar ;
iu trumellt"' in writi1 g, flve years; jndgrrn-nt and decrees, i:s:
yea r ·. Revivor: Onl y l>y in ·trnmcmt in \\ riting; part pnym1:11t does
not.

5 7

M a r r ie d Wom e n. All 1 roperty. real or penional, acquired
before marriage and acquired nf ter marriage. by gift, bequ ~t. de:·i 'e
or de ' ent, wife' eparate property: all other property acqu1red
after marriage, common property; wife mu t record in\'entory of'
.,eparate property.
To e tat a ' ten ant by courte y allowed thelrn bnud . nor dowe r to the wife. Half tb common property goesto tbe ._urviYing hu "banc.l or wif '; if no d ei:-cendant', half of common property subject to will of decea ' eel or, in ca e no will , goe to
heirt1 of deceased.
1'1 o rtgag s. A rea l e tat mortgage must be a ckno,yledcr d and
ertified nnd recorded in lik manner a conv yances and c1eed of'
real pr perty, and i for cl o ed by action in the District Court.
'hcrtt t Jfol'tgages must be acknow·ledged a real e tate mortgag s and worn to by the m rtgagor that the same is mad
in good faith without nny cle . . ign to hinder. delay, or defraud er di tor . May be :filed or re orded.
urviYe ' a long a the d bt.
N o te a nci H i ll s of E x1 h a mie . Commercial paper i th e
a.me as defined by the common law. There mu ' t be a payee 1rnd
payor, and mu ' t be paid in money . Place of pa.ym "nt, if n o plac
designated in the instrument it-i where it wa" made, and become
comm 'rcial or negotiable by b ing execnted and delivered . a n n. i
made negotiable by indor:-.ement, what i called,. in blank. ' D amage for prot "ted b1 ,ls: Dome._tic. 15 per cent.: fo reign. 30 per cent~
~otet!i or bills becoming due on anv holida, to-wit : "ew Year·s
dAy, 'l'wenty-s ecom1 of February, ·F ourth of July, Thank giving
und . bri tma.. , day, or on unday, w ould b payabl the da
prev10us.
~uits .
ivil practice is under a code imilar to that of alifor nia ( which see).
'J.'axes. Beginning on the 1st day of January, 1 94, the locus of
property for ta.::s:ation, relate._ to the 2d ::\Ionday o f Jannary, and is a
lien upon th property from that dnte.
, vn1s. EYery person over the age of eighteen year and of'
sound mind, may make a will. EYery will. oth r tban a nuncu patiY ' will, mnst be in writing, and eyery will otht-r than an ol ocrra pbi c and a nuncupatiy will, must be execnt d by the te tato
sub--cribing thereto or some person by hi direction, which mus t b
done in the presence of two attesting witne::: es, each of whom mu t
sign his name and tate that the tesrntor reque tecl him to witne
the testator' signature. and the testator mu ._ t also declare in th
pr ence of the witness s that such i ' hi last " ·ill and testament.

ILLINOIS.

(Revised by CR.A TTY Bn

., J ARYI & C LEYELAND,
Chicago.)

ttorneys at Law ,.

The con._titntion of 1 70 proYides, That ' tatute authorizing a sociations " ·ith banking po\\'ers ~hall be ubmitted to a -rote of t he
people b fore takino- effect.
That all stockholders in :-.uch as ociation ._ "ball be indiYidually
liable to the creditors in addition to the amount of their stockholdiu g to an amount equal to the amount of their "' tock for debts
accruing while they remain " 10 kholders.
'!,bat ' pecie payment on circulation hall not be .c11spended, an d
quarterly statement of its affair ., hall be made 11nder oath, an •
vroYh;ion is made for record in Recorder office of the names of·
stockholders.
Pursuant to thi constitution the Legi lature, at it .,es ion in 1 87,..
passed a general banking la,y, which was approved at the election
of KoYernber 5 1c 7; and am ended same at its ssion in 1 9,
and the amendment ,,·as approyed at the election of o-rem ber 4,
1 90 . . . ., ubstantially thi ' law i a,_ follo\Y .c : As ociation may b e
formed to do a general banking business (e_ cept the is>e11ing of ·bill&
to circulate a ' money) in ludiug loans on personal and real e tat e
ecnrity, and accepting and executing trusts. The capital required
is, in citie of 5,000 population or under, $25,000; between 5,000
and 10,000 population, $50 000; between 10,000 and 50,000 population,
$100 000; 50,000 population and upwards, 200,000. Impairment of
capital must be made good on notice from the tate uditor. The
tock hein~ fully .,ubscribed, am eti11g of the .., tockholder on not
less than tnree day notice, shall be b ld, at ,vhich the number of
director shall be determined, aud they elec t ed.
They hold office for one year, and until th ir .:t1cce or a reelected. The dir ctor.., thereupon organize n11d ele t offic rs make
by-lam3, nnd arrnoge l'or the tnrnsaction of bu._ ine
They are
required to take an oath of fealty to the as ociation and observance of the banking act.
Yacnncies may b filled by a two-third vote of remaining dir ectorR. Upon compl~'ing with thes provisions, the uditur m akes
e -amination, and if satisfied tbat capital ha bet'n pn i d in, is ue a
certificate of organization up n payment of rea. onable expenses.
'!,hi ' certificate rnu~t be filed m the office of Rec rder of Deed of
tb 9?m1ty where t~e 1;iank i organ ized, and upon recordin g uch
certificate the a ~oc1at10n may pr ceed to busines .
tockholde rs are severally liable for all engagement' of t h e as ociation to an amount equal to their respe tiYe stockh ldino- a t par
value, in addition to tbe amount im-esten in their ' hare of"' tbck.
rtified li ' t of tockholder sball be :fil ct in the Recorder's office
within ten day af ter organization, and cert iticat ' of all tran fers
not later than ten day ' after "uch transfer. Tran"fer will not
rel ase liability on unpaid tock, and there i no relea e of stock
liability until t ran f r is recorded.
Report under oath of Pr i d ent or Cashier hall be made on call
~f t~H': . n~itor at_ 1 a t _once in three months, howing re ource..., and
lrnb1ht1es m cleta1l, which report baU b pnbli hed m ome newspap r of the place wher the bank is located.
..At 1 a t once a year the uditor ball cau e an examination of t h
bank to be made by a . ., nitable pei- on not a tockholder, officer o:r
mploye of t he bank who hall n ak a detailed report of hise_ am 1nation an d ,_ hall has pow r to -:s::amine oftic -rs empl ye o
agent on oath.
'
Original from

UNIVERSITY OF WASHINGTON

-58

B

KL_TG

D CO IlHERCIAL LA

uch a ociation hall carry a ai;;set real e tate nece • ary to do
its banking bu ine~ , and, for a period of fl.ye year , uch other real
tate a it may obtain title to in t he collection of debts.
Provi ion are al o made for change of name , numbt!r of director , capital tock, and con olidation with oth r like a ociations.
The tockholder · may clo e up bu ine and di tribute a ets by
re olution, o_n d~po iting with Auditor money ufficient to pay
demand agam t 1t and expen e of the proceeding.
There i no provi ion of law for the in pection of private banking firm not orgauized under the tatutes.
B~lding a.. , ociation , which of late have multiplied greatly, and
rec~nve large um of money, and, to ome extent, take th e place of
-savmg bank , are, by a law pa ed at the last e sion of the Legislature, required to report to the State Auditor quarterly, and are subject to examination on reque t of five tockholders.

COMMERCIAL LAW.
Acknowledgments of any instruments relating to the sale,
-con veyance or other di position of real estate, or any interest
therein, i.;:ituate in this State, may be made before one of the follo:Ving officers: First-When acknowledged or proved within
thi State, before a Master in Chancery, Notary I'ublic, United
States Commi sioner, Circuit or County Clerk, Justice of the
Peace, or any court of record having a seal, or any Judge, Justice
r Clerk of any uch court. When taken before-a Notary Public
or United States Commissioner, the same shall be attested by his
official seal; when taken before a court or the Clerk thereof', the
same shall be attested by the seal of such court; and when taken
before a Justice of the Peace, there shall be added the certificate
of the County Clerk, under hi seal or office, that the person taking
such acknowledgment or proof was a Justice of the Peace in said
county at the time of taking the same. If the Justice reside in the
county where the lands mentioned in the instrument are situated,
l:lO such certific~te shall be required.
Second-When acknow 1edged or proved withou t this State and within the United States
or their Territories, or the District of Columbia, before a Justice of
the Peace, a Notary Public, United States Commissioner, Commissioner to take acknowledgments of deeds, Mayor of a city, Clerk
-of a county, or before any Judge, Justice, or Clerk of the Supreme
-or any Circuit or District Court of the United States, or any Judge,
Justice or Clerk of the Supreme, Circuit, Superior, District, County
--Or Common Pleas Court, of any of the United States or their Ter!'itories. When such !l.Cknowledgment or proof is made before
a Notary Public, United States Commissioner, Commissioner of
-deeds, Mayor ot a city, or Clerk, it shall be certified by such officer,
under his seal of office. If before a Mayor of the city, it shall be
certified under the seal of the city. If before a Justice of the
Peace, there shall be added a certificate of the proper Clerk. under
the seal of his office, setting forth that the person before· whom
such proof or acknowledgment was made was a Justice of the
Peace at the t1me of making the eame. An acknowledgment or
roof may be made in conformity with the laws of the State,
· rerritory or district where it is made. Third-When acknowledged
or proved without t he United States, then before any court of
.any Republic, State, Kingdom or Empire having a seal; or any
Mayor or chief officer of any city or town having a seal; or before
,any Minister or Secretary of Legation, or Consul of the United
States in any foreign country, attested by his official seal; or before
.any officer authorized by the laws of such foreign country to take
acknowledgment~ of conveyances of real estate, such deed to be
attested by the official seal of such court or officer, if he have a seal.
Where uch acknowledgment or proof is taken other than before a
court of record, or Mayor, or chief officer of a town having a seal,
proof that the officer taking uch acknowledgment was duly author·zed by the laws of hi country so to do, shall accompany the
certificate of such ackuowled 0 ment. Such acknowledgment or
proof may u1so be made in conformity with the laws of any foreign
State, Kingdom, Empire, or country; which conformity may be
~hown by the certificate of auy Consul or Minister of the United
8tates in said country, under his official seal, or by other legal
proof. No deed or other instrument shall be construed as releasing
or waiving the right of homestead, unless the same shall contain a
clau e expressly releasing or waiving such right, and in such case
the certificate of acknowledgment shall contain a clause substantially as follows: "including the release and waiver of the
right of homestead." Acknowledgments of chattel mortgages
must be made before a Justice of the P eace of the town or precinct
where the mortgagor re ides; or, if there be no ,i,cting Justi ce of
the Peace in the town or precinct where the mortgagor re ides,
then such instrument may be acknowledged before the County
Judge of the county in which the mortgagor resides; or, if the
mortgagor is not a re ident of this State at the time of' making the
acknowledgment, then before any officer authorized by law to
take acknowledgments of deeds.
A ignment . The County onrt has jnri diction in cases ot
voluntary a ignment for the b nefit of creditor , which as ignments mu t be duly acknowl edged, filed in the office of th
Clerk of the ouuty Court, and recorded in the county where
the a signor r side , or where the busines has been carried
on, and in the county or counties where laud em braced in the
assignment is situate. Assignee mu t file bond, inventory and
-valuation, and send n otice by mail to creditor of whom b' hall
be informed, to pre ent claims under oath , within three months
from publication of notice.
laims not so pre ented do not participate in dividend until after the payment in full of all claims
properly pre nted and allowed. A ignee is required to muke
-equal dividend among creditor at the first term oJ court after
, he three month allowed, und to reucler n final account within
one year. Every provi ion in any a , ignment providing for the
payment of on debt or liability in preference to another i void,
nd all debts and liabilitie within the provision of the a sign men.t shall be paid pro rata from the a et ther of, except laims
for wages of laborer or ervant arned within thre months next
preceding the making of such a signment, which, if allowed, are
first paid, after co t , commi ·ions, and expen es of aRsignmen t,
to the exclu ion of other claims. Claim may be revis d or contested before the court ; and as ignee is at all time subject to

-ILLI

or .

the order and supervision of said court or the Judge thereof.
o
Debtor may b subjected to examination touching hi e tate.
provision 1s made for the di charge of th de~tor. All proceedmg may be discontinued upon the a ent, rn writmo-, of the
debtor and a maiority of the creditors in number and timount.
Attachment. The writ mav i l'lue out of courts of record on
claim exceeding $20, when the debtor i non-resident; conceals
himself or stand in defiance of an officer, so that proces cau not
be serv~d on him; has departed from thi
tate with the in tention of' removino- bi effect therefrom or if he i about to do o;
where he has, within two years preceding, fraudul ently conYeyed,
assigned, concealed or dispo _ed of bi propert_y, or a part ther of,
so as to hinder or delay cred1 tors; where he 1 about fraudulently
to conceal, assign or oth~rwise ~i po e of his property or effect ,
10 as to hinder or delay his creditors; or where the debt i-u d for
was fraudulently contracted by tatements in WFiting ~igned by
the debtor, his agent or attorney. Before th~ wn_t can 1 sue, the
plaintiff, his agent 01: attorney, ~ust make affidavit ~o on_e or more
of these facts, and give bond, wi th approved ecunty, m double
the amount of the claim sued on. Attachment writ may i ue
out of Justice' Courts, on the same ground , on all claim not exceeding $200. Garnisbmeu~ process I?ay i sue in case of at~achment or on return of execution nn atisfied, but the wuges of any
perso'n who is the head of a family anu re ides with the ame, to
the amount of $50, are exempt therefrom. Arre ton civil process
lies only in case of fraud, on judgments in tort, or on refu al of
debtor to surrender his estate for benefit of creditors.
Corporations. Corporations may be formed under the ~enern.l Incorporation Act for any lawful purp_o e except bankmg,
insurance, real estate, brokerage, the operat10n of railro~ds. and
the business of loanino- money. Separate act are provided for
these. Application must be made to the Secretary of tate for
license to incorporate by not less than three n or more than Feven
persons. When such liceme i granted and the cn pital ' tock is
fully subscribed. a meeting of the subscribers shall b held to elect
directors or managers, tbe number to be not less tban thre nor
more than eleven. At such election and at all meeting each bare
of' stock ehall be entitled to one vote. wh ich may be represented
either in person or by proxy. Cumula tiYe voting may he hnd.
When such stock shall have been all sub cribed and th e director~
elected. the commi ssioners shall make report, to the . .: ecrctary of
State, who thereupon issue a certificate of final incorporation,
including copies of all papers, for which 25 mu t be paid . This
certificate must be fil ecl in the office of tbe Recorder of Deeds in the
county where the principal office of such company is located.
Then the corporation shall be deemed fully organized an d may
proceed to busine s. Corporation thus organized mc1y ue and
be sued tbe same as natural perrnns, may hold the real e tate
necessary for its busin ess, but no more, except on condition and
certain restrictions. Tbe busine s of a corporation ball be controlled by a Board of Director , who shall be liable for debts of th
corporation contracted in excebs of tbe amoun t of its capital stock.
if a~sented to by such directors. Director can not a t by proxy.
Shares of stock shall be not less than $ 10 nor more than 100 and
shall be deemed personal property, to be levied on a
uch.
o
stock liability exists except for the unpaid balance due thereon.
Any assignee of euch stock is hable for the unpaid balance, the
same as the original holder, bu t the a ignor shall not ther ,by
b e released from his liability. Director assenting to tbe p ayment
of dividends by an insolvent corporation, or the payment of which
would make it insolvent, shall be join tly and severally liable for
the debts of such insolvent corporation. Foreign corporations
and the officers and agents thereof doing busine in this rate
shall be i.;:ubject to all the liabilities, restriction , and duties of
domestic corporations. bu t shall have no other nor greater power •
Correct books of accom1t of all its busineBs shall be kept at its
principal office. Every stockholder shall l.Jave the right at all
reasonable ti111es to examine uch records and books.
Courts. T erms and Jurisdiction. Circuit Courts have original
jurisdiction in all cases in law and equity, and hold tvvo or more
terms in each year, in each county. County Courts have probate
jurisdiction (except in countie where Probate Courts are established), and have also a limited civil and criminal jurisdiction. In
counties having a population of 70,000 or more, Probate Courts are
established. Only two countie , ook and Peoria, luw P, obate
ourt . Provision i s made for City Courts of pecial civil and
criminal jurisdiction. Justices of the Peace have jun diction limited to $200. Appellate Courts and a Supreme Court exerci e appellate Jurisdiction. Cook County has a pecial uperior ourt
of jurisdiction concurren t with that of the Circuit Court, and has
also a special Criminal Court.
Days of Grace. No promi ory note, check, draft, bill of
exchange. order or other negotiable or commercial in trument,
payable at sight or on demand, shall b e ntitled t o days of grac .
All other bill of exchange, drafts, or note ball b entitleu to th,
u ua1 clays of grac .
Depo it wn -. The te timony of any witne s re iding within
thi State more than 100 mile from the Court, or not residing in
this State, may be taken by the party tl 't:-iring to u e the ame,
under a commi ' Bion of the Court. upon wri tten interrogatories.
'l be <lepot-il ion of a non-re ident witne ' may b e taken on oral
interrogatori s, under a ·ommisi-ion of the Court, upon giving to
the adverse party ten day 'notice, and on e day additional for every
100 mile traveled frnn1 the ourt to the place of t aking the d po ition. W h n the notice has been delivered for the taking of the
dcposit1011 of a non-resident witne. upon writ ten interrogatories,
the ad vcr c party may, upon giving three day ' notice of ' nch
election, bave a com m i l,,ion i ued to t ake the clepo 'ition upon oral
int rrogntorie .
otice to take deposition s when the adv •r ' e party
i not a r, id nt of the county in which ' nit i p ending, and no
attorney lrn appeared for the pu.rty, an affidavit of such fact ,tating the pla e of re, idence of uch aclver party, or that hi place
of re 'i<lence can not be a
rtain d, may b, mailed to the adore
of the non-re itlent defendunt, if known, or posted on th door of
the conrt hou se where 'ui1 i pending, or published in the nearest
newsµaper wh n addre i not known. 'ommis&ion may is-:ne to
any Judge, Ma ter in Chan ery, Notary r Ju t1 , or to any competent or di intere~ted per on a commi ioner. 'l'he return of the
offi er taking the depo ition must b e accompani d b a certificate
of hi official cbara~~- iH AAv~al of the tat '. or under the eal of

UNIVERSITY OF WASHINGTON

n \ KI G AND COMMERCI L LA WS-ILLI or .
the proper Court of R cord of tb.e county wherein depo ition i
taken. Wh re dcpo ition i taken on written interrogatories
neither party, bi utLorney, nor oth r per on intere ted, is allowed
to be pre ent, nor to dictate or wnte any depo iUon. Every witness is allo\\' d a fee of $1 for a h day's attendanc , and 5 c nts
per mile each way for ne esrnry trnvel. When a party to a suit,
after having given the oppo .. ite party notice to take deposit.ion
upon oral interrogatorie , shall 1ail to take the sam . and the
oppo ite party shall attend either in p rson or by attorney, he hall
be entitled to $2 per day for each day of such attendance, and to 6
cent p r mne for every mile necessiuily traveled by him in going
to and returning from the place de 'ignated to take the depo iti0n.
Ev1<l~nce. Intere ted parties may testify on their own b half
in civil actions, with a few exception .
husband and wife shall
not be allowed to te tify for or again t each other, except when
he or she shall have acted in the ubject matter of the controversy
as agent for the other.
Executions may issue immediately after rendition of judgment, and to any county in the ta.t e. Executions are liens o:o personal property from date of delivery of the writ to Sheriff or other
officer. Executions do not is ue on ju tice 'judgments for twenty
days after rendition, unl s oath be made that debt i in danger of
being lo t; thereafter execution may issue on uch judgment at any
time within even year after r nd ition th reof. Reale ·tate can not
be levied upon or sold by virtue of any executiol'l issued by a Justice
of the Peace. Real estate is sold on execution, without apprajsemen t,
to the highest bidder; and, if the debtor so electA, his real estate
must be exhausted before hjs personal property can be seized
under execution i sued out of a court of record. No stay law.
Defendant may redeem within twelve months after the sale of real
estate, on payment of the amount it was sold for, with ejght per
cent. interest and costs. If he tail to redeem within such time,
any one of' his decree or judament creditors may redeem after
that and within fifteen months from the time of the sale.
Exemptions. To every householder having a family, a homestead, valued at $1,000; and such exemption continues to the surYivor, after the death of the husband or wife, so long as he or she
occupie it, and to t be children until the youngest is twenty-one
years old. In addition, there is also allowed to every person necessary wearing apparel, Bibles, school books, family pictures, and
$100 worth of other property selected by the debtor. If the debtor
is the head of a family, and resides with the same, he is allowed
$300 worth in addition, to be selected by him. But such selection
can not be made from any money or wages due. Of wages there
are $50 exempt from garnishment to any one who is the head of a
family residing with the same. No exemption is allowed when the
debt is for the wages of laborer or servant. Wages to amount of
$50 earned within six months, are preferred debts in cases of insolvency of debtor owing such wages.
Interest. Legal rate, five per cent., but special agreement may
be made for seven per cent. or less, by statute in force July 1,
1891. Forfeiture of all interest is penalty for usury. Legal rate of
interest is collectible on moneys due on all instruments in writing;
on money lent or advanced for the use of another; on money due
on settlement of account, from day of liquidating account and
ascertaining balance; on money received to the use of another,
and retained without the owner's knowledge; on money withheld by unreasonable and vexatious delay, and on judgments.
In computations of time, interest and discounts upon negotiable
instruments, a month is construed to mean a calendar month, and
a year to consist of twelve calendar months: and for any number
of days le s than a month, a day is considered a thirtieth part of
a month, and interests or discounts shall be computed for such
fractions of a month upon the ratio which such number of days
shall bear to thirty.
o"ucigments of courts of record are liens on the real estate of
the party against whom they are obtained, situated in the county
where the court is held, for the period of seven years, and may be
made a lien ou such real estate in any other county, by filing a transcript thereof in the office of the clerk of any court of record in such
other county. When execution is not issued on a judgment within
one year from the time ~he eam~ becomes a 1ie"!], it thereafter ce~see
to be a 1ieJ1: but execut10n may issue on such Judgment at any t1IDe
within su l seven years, and shall become a lien on any such real
estate from its delivery to the Sheriff, or other proper officer, to be
executed. Judgments rendered at the same term of court, or on
the same day in vacation are of concurrent lien. Judgment of court
of record may be revived by scirefacias at any time within twenty
years. A judgment of a_ Justice of t~e Peace m~y be m~de _a
lien on real estate by filrng a transcnpt thereof' m the Circuit
Court, but must othenvise be satisfied out of personal property only,
and uch jndgment may be ued on at any time within ten years
from their rendition.
Limitation of . uits. Actions for slander or libeJ, on e year.
AcUons for damages for an injury to the person, or for false
imprisonment, or malicious prosecution, or for s statutory
penalty, or for abduction, or for eeduction, or for criminal conv rsation, two years. Actions on unwritten contracts, express or
implied, or on awards of arbitration, or to recover damages for an
injury done to property, real or personal, or to recover _the possession of personal property, or damages for the detent10n, or conversion thereof, and all civil actions not otherwise provided for,
including actions on foreign judgments, five years. Actions on
bonds, promissory notes, bills of exchange, written leases, written
contract , or other evidences of jndebtedness in writing, ten
years; but if any payment, or new promise to pay, shall have been
made in writing, on any bond, bill, lease, contract, or other written
evidence of indebtedness, within or after said period of ten years,
then an action may be commenced thereon at _any time within ten
years after the time of euch payment or pronuse to pay. Where a
cause of action has arisen in a State or Territory out of this State,
or in a foreign country, and, by the law8 thereof, an action
thereon can not be maintained, by reason of the lapse of time, an
action thereon shall not be maintained in this State. Jud gment s
in any court of record in thi Stat twenty years. All actions for
recovery of lands are barred in twenty years; and may be barred
in seven year in special ases.

1''la1·ried Women. A married woman may sue and be sued,
pos e her own eaming , contract and incur liabilities, purchase>
sell and hold personal property, and own and hold real estate t
the ame extent a an unmarried woman. Her hu band is not
liable for her debts or torts; except m cases where he would be
jointly liable if the marriage did not exist, or for necessaries. Sh
can not enter jnto a partnership without consent of her husband, unless he bu abandoned her or be incapable of giving assent.
No transfer of chattel between husband and wife living together
is valid as again t third parties, unless such transfer is in writing
and is acknowledged and recorded as chattel mortgages are required'
to be acknowledged and recorded. A married woman may make ar
will as if ole. Both husband and wife are liable for family expenses ~
Thee tate of curtesy is abolished, and the surviving husband or
wife is endowed of a third part of the lands whereof the deceased
was seized of an estate of inheritance at any time during the marriage, unless relinquished in due form.
Mortgages. Mortgages on real e tate are executed and acknowledged the same a deeds, husband or wife being required·
to join to bar dower, except in mortgages to secure purchase,·
money. All such instruments must be foreclosed by judicial proceedings.
Chattel .Lliortqages are invalid as to third parties~ if given fo1~
longer than two years, unless extended for a further term of not<
more than two years from maturity, in accordance with statuteNeither are they valid as to third partie , if the property mortgaaed is allowed to remain in the pos ession of the mortgagor,
unYess the mortgage expre sly provides that it shall so remain.
The mortgagee may lose his lien, as against third parties, if he
does not take possession of the mortgaged property within twentyfour hours after the mortgage is clue. A between the parties, a.
chattel mortgage i good, ifit is neither acknowledged nor recorded.
Both husband and wife must join in chattel mortgage of household.
goods. Chattel morrgage of necei-sary household goods, wearing.
apparel, or mechanic's t uol , must be foreclo ed in a court of record,
and no such chattels can be seized on behalf of the mortgagee, before-·
foreclosure, except by Sheriff acting upon the order of a Judge of a,
court of record.
Notes and Bills of Exchange. Upon bms of exchangedrawn or indorsed withjn this State, and payable withoL1t the
United States, duly prate ted, ten per cent. damages are collectible, together with interest, costs and charges of protest; and if
payable within the United Stutes, five per cent. damages, with
interest, costs and charges, can be collected in case of suit. In
this State the other rights of parties to bills of exchange and checks
are governed by the law merchant; but the rights of parties to·
promiseory notes are modified by statute. lndorsers of a note can-·
not be held liable, unless the maker thereof has been diHgentlr
prosecuted by suit, or unless such suit would have been unavailing
or the maker be out of tbe State at the time such note became due.
In order to hold u. guarantor, suit against the maker is not necessary.
otes obtamed by fraud or circumvention can not b •
collected, even by an innocent holder. If any one become the,
owner of a note, or any other instrument in writing, after it i
due, the maker thereof can jnterpose the same defense as against
him, that he might have set up as against the original holder.
No notice of non-payment or protest is necessary in order to,
fix the Ji.ability of indorsers of notes. Grace is not allowed on
instruments payable at sight, on demand, or on presentation
but all other instruments are entitled to the usual days or·
grace. January 1, February B and 22, May 30, July 4 First
Monday in eptemb r (Labor Day), December 25, and a-d.y day
appointed or recommended by the Governor of this State, or by
the President of the United States, as a day of Fast or Thanktigiving, are made legal holidays, ana as regards the presenting·
for payment or acceptance, and the maturity, protesting and
giving notice of dishonor of negotiable or commercial instruments
are treated as Sunda:,:-s. vyhen any such ~oliday falls 0;118unday. th :>,
Monday next followrng 1s held the holiday. All evidences of indebtedness maturing on Sunday or either of such holiday are to be·
deemed maturing on the day previou ; 1rnd when two or more of·
these days immediately succeed each other, such indebtedness is
deemed to mature on the day previous to the first ot such days.
By a?- Act for regu~ating electio~s, approved June 19, 1 85, it is
prov1rled that any city, village or mcorporated town in this State
may, by vote, adopt such Act; aud that the days on which the
general State, county or city elections hall be held in such city
village or town, shall be holidays, and sball be treated as Sun:.
days, as regards days of grace on commercial paper, and the pres- entation for payment or acceptance, and thE' protesting and
giving notice of the dishonor of bills of exchange, checks and ·
notes.
Suits. All except local actions are brought in the county wher ,
defendant resides or is found; and where there are several defendants, suit may be brought where one resides, and process issued
to any other county for the other defendant; but no judgment will
be rendered agajnst s~1c~ other defe~dant ~nless h appears and \
defends, or unl~ss p1a~nt:-ff snc_ceeds m gettmg judgment against
the one who resides or 1s found m the county where suit is brought
Non-resident plaintiffs muet give bonds for costs. Process must b~
served ten days before the commencement of return t erm. In Justice's Court ummons is returnable in not le s than five nor more
than fifteen days, and must be served at least three d~ys before
the time ot trial.

Taxes. State and county taxes are payable after December 1
and the delinquent li t. i turned over to the County Collector on
or about March 10, followina. Advertisement of real estate on
which taxes remain unpaid, is made after April 1, following and
judgment for the sale thereof is obtained at the following 'May
term of tbe County Court, or thereafter, which sale begins on the
day fixed therefor in said advertisement. Delinquent taxes on real
estate bear intere tat the rate of one per cent. per month after May
1, fractions of a month being reckoned as a whole month. After tax
sale of delinquent real c tnte, redemption may be made within two
years. Penalty js: Within six months, 25 per cent. interest·
twelve months, 50 per cent. interest; eighteen months 75 pei cent'
interest; two years, 100 per cent. int rest; together ~ith all su~
sequent taxes paid by purcba er, with interest at 10 per cent..
per annum, and all CO~tfginal from

UNIVERSITY OF WASHINGTON

90

B.A.NKL.~G A D COnf~IERCIAL LAWS-INDIA A.

INDIANA.
BA . . KL G LAW.
(Revised by U . .J. II.a.::inro~n and E. . G. ROGERS, Attorney
Law, Indianapolis.)

at

The constitution pro\·ide that no bank, banking company or
moneyed in titution for the purpose of issuin<Y bills of credit, or
bill payable to orcler or bearer, shall be estab,ished save under a
general banking law to be thereafter enacted. The constitution
~xpressly excepts a bank with branches, mutually responsible for
€ach other's liabilities upon all paper credit issued as money, and
from which no collateral ecurity is required ; as to which the
-constitution allows a special charter. l'ursuant to the coustitution,
the General Assembly has enacted a general banking law. Its provi ions apply to the establishment and conduct of banks of discount
and deposit. The Auditor of the State, with the approbation of the
Governor, as often as shall be deemed necessary or proper, must
appoint a suitable pen:,on or persons to make an examination of the
affairs of every bank established under the gener?,l banking laws ;
whicb person shall not be a director or other officer of the bank,
ancl shall have power to make a thorough examination into all the
affairs of the bank, and, in doing so, to examine any of the -officers
and agents thereof on oath, and shall make a full and detailed
report of the condition of the bank to the Auditor, and the association shall noL be subject to any other visitorial powers than such
as are vested in the several courts of the State. The State banks
must make to the Auditor of the State not less than five reports each
year. according to the form which may be prescribed by him,
verified by oath or affirmation of the president, cashier, or other
managing agent, which reports must exhibit, in detail, and under
appropriate heads, the resources and liabilities at the close of business on any past day to be by him specified, and must transmit
such report to the Auditor within five days after the receipt of a
request or requisition therefor from him. The report so required,
in the same form in which it is made to the Auditor, must be published in a newepaper published in the place where the bank is established, or. if there is no newspaper in the place, then in one published
nearest thereto in the same county or an adjoining county, at the
-expense of the bank: and s uch proof of publication shall be furnished as may be required by the Auditor. The Auditor has power
to call for special reports from any particular bank. whenever, in
his jud~ment, it shall be necessary in order to a full knowledge of
its cona.ition. Any bank failing to make and transmit any sucb
report shall be subject to a penalty of $100 for each day, after five
<lays, that it delays to make and transmit the eame.
The investment of money deposited in Savings banks in this
State is limited by law to: 1. Stocks, or bonds or Treasury notes
of the United States; 2. Stocks or bonds of this State; 3. Orders
or bonds of any county, city or town in this State iesued pursuant
to the anthority of law; 4. Stocks or bonds of any State in the
Union, that bas, for ten years previous to such investment being
made, regularly paid the intere~t on its legal bonded debt in lawful money of the United States; 5. Bonds or notes secured by
mortgage on unincumbered real estate, situate in the county where
the bank is located or an adjoining county, or in any other county
in the State of Indiana, worth, exclusive of perishabl e improvements,
at least twice the a mount loaned thereon: 6. Promissory notes or
bills or exchange, before their maturity, payable at some chartered
bank witbin the State, and having not to exceed twelve months to
run from the date of the loan or purchase, made or indorsed by
two or more responaible freeltolders of the State; but no such note
or bill to exceed 10,000; no more than $10,000 to be loaned upon the
same security; every such note or bill to be made or indorsed by at
lea~t one freeholder of the county in which the bank is located, by
dealin g in exchangE', by purchasing and selling sight or time drafts
payable out of the State; no draft to be purchased unless made or
indorsed by one or more responsible freeholders of the county in
which the bank is located, or an n.dj oining county. and unless for
a sum not in excess of $10,000, and maturing within sixty days or
lesFi time, when payable out of the State; no t more t,baa une draft
to be held by bank at any one time, which is secured by the same,
or any of the same indor er , bnt not to exceed sixty per cent. of
the whole amount of depo ' it shall be so loaned on interest.

COMMERCIAL LAW.
Acknowledgments. All conveyances ofland mnst be in writing1 and acknowledged and recorded within forty-five days from
their execution. Within the State acknowledgment may betaken
before a Jndge or Clerk of a court of record, Jn ' Lice of the Peace,
Auditor, Recorder. otary Public or Mayor of a city, and in other
tates and Territorie before the like officers, or a ommi ioner of
Deecl for Indiana. In any foreign country, before a fini ter.
cha!'ge d'alfaires or Con ul of the United tate.. If such acknowledgment or proof i in ome other than the Engh 'h lang-nage, or not
attac.:bed by ~uch ofticinl ~eal, it mu t be accompanied hy a certificnt of an officer of the United States to the etl'ect thnt it i · duly
executed according to the law~ of the foreign country, that the
ofn cer ha legal authority to ·ertify to the proof or acknowledgment and the meaning of his certificate, if made tn a foreign
language. B nsband muR1 join in deed to wife' land , and wife
in deed to hu band' lands. Wife take inchoate intere tin bu o separate acknowledgment of wife nee s ary in
band's land .
order to convey her inchoate interei-t in hn ·band's land .
A ignment for Ben fit of Cr ditor8. Any debtor in em•
barras eel or failing circum ' tance , may make n. general a ignment
-of all property in trust for benefit of all bona .fide creditor . To be
valid this must be by indentur duly signed and acknowiedged,
and filed with the Recorder of the county in which assigr.or resides,
for record within ten days after the execution thereof. Indenture
I

to contain full description of real e tate and be accompanied by
schedule of personal property, and a ignor to make oath that the
indenture and Echedule contain a full tatement of all hi' property etc. Trustee make oath and file bond in ircuit Court. and
mu t file copy of a signment, etc., in office of Clerk of that court
within fifteen days after execution of indenture. Tm 'tee nam~d
failing to act, Court may appoint a ubstitute upon petH10n.
Tru tee named by the debtor may be r moYed by the onrt on the
petition of creditors repre 'enting in amount one-half the liabilities
The Court mar, upon petition of any creditor, or
of the debtor
the trustee order an examination of the a8:,.ignor or any person to
whom any' part of hL pro1)erty has been tran . .Jerrcd within eix
month previou to tbe aesio-nment. The Tru tee to make under
oath complete inventory of all property coming to his hands,
and file in Court within thirty da:vs after entering upon bi
trust ; al o, cause same to be appraised by two reputable householders· set off to the assignor, if a resident householder,
such p1:operty as he may select to the value of six hundred
dollars; and proceed to collect the rights and credits, and to sell
the property, after giving thirty days' notice of time and place, at
public auction, or at private sale, for cash, or upon credit, not
exceeding two years, subject to approval of the Court as to such
sales. Dividends are declared p1·0 ·rat a upon all claim' allowed by
Trustee or the Court. Trnstee,s com1>ensation to be fixed by the
Court. No provision for dischar.£1:e of debtor from his liabilitie .
Attachment may issue against the property of non-residents or
foreign corporation , and against all who have diepo ed of, or are
about to dispose of, their property, to cheat, hinder or delay creditors, or against a creditor who concE'als him-:elf o that summons
can not be served upon him. An affidavit 1s reqnired, which may
be made by the creditor or some one on his behalf, ancl a boud to
answer damages if the proceedings are wrongful or oppressiYe.
All creditors who file under the original attachment, before final
judgment, share pro rata in the proceeds of the attached property. Defendant in a civil action may be arrested and held to bail
in double the amount of debt or damages claimed, at nny time
before judgment, on affidavit showing that be is about to letwe
the State, taking with him property subject to execution, or money,
with intent to defraud the plaintiff. The wages of a per on, not
exceeding one month, are e~empt from garnishment or pro_cee?-ings supplemental to execut1011 , so long as such person remams 111
such employment. It is a misdemeanor to send claims out of the
State to be collected by proceedings in attachment, garnishment,
or the like when creditor, debtor, and person owing for earnings
intended t~ be reached ~re all within the jurisdiction of the courts
of this State. Courts of this State are prohibited from takin<Y
jurisdiction of such proceedings to reach wages, when plaintiff and
principal defendant are non-residents.
Chattel :mortgages. Chattel Mortgage on personal property
left in the hands of the mortgagor with po·wer to sell must stipulate
that the money received by the sale be applied to the payment of
the mortgage debt. and should be drawn in the form of an ab olnte
bill of sale; must be acknowledged in the same nuurner as. pr_escribed for the acknowledgment of deeds, and recorded wlthm
ten days from execution, and in the county where the mortgagor
resides. An assignment of goods, by way of mortgage, where snch
goods are not delivered to the mortgagee, shall not be valid against
any other person than the parties thereto, un18ss such mortga~e
shall be acknowledged, as prescribed in deeds ot'conveyance, and recorded within ten days after the execution thereof.
Courts. Terms and Jurisdiction. The Circuit Court is the only
Court of original general civil jurisdiction in the tate, and has
full probate po"vers. From three to four terms are held annually
in each county. Superior Courts have been established in Marion,
Tippecanoe, Allen, Vigo, and Vanderberg counties, and hold from
four to ten terms each year. Th e jurisd1ction of [arion Superior
Court is concurrent with that of the Circuit Court in all civil
cases except probate matters and slander and libel; of Tippecanoe Superior Court is concurrent with tbe Circuit Court in all
civil cases and in all aceons by or against executors and administrators; of Vigo Superior Court is concurrent with the Circuit
Court in all causes, including actions by or against guardians, executors and admi.ni trators, but no juri diction in probate matter and
in the settlement of decedent ' e tates. Other upE'rior Courts have
concurrent jurisdiction with the Circuit Court except in probate
matters, the settlement of decedents' est.ates, and in actions for
slander and libel. The Appellate Court has exclusiv' jnrLcliction
of all appeals from the Circuit, Superior, and Criminal ourts, 111
cases of misdemeanor; case originating before a Justice of tbe
Peace, when the amount in controversy xceedR :fifty dollars exclnsive of cost ; all ca e for the recovery of money only when the
amonnt does not exceed one thonsand dollar , and all cases for th
recovery of specific personal property; action betw en landlord
and tenant for po ses ion of the leased premise , and m all cases
of appeals from ord ers allowing or disallowing claims against
decedent', estates; and in all cat-ies for the foreclosme nnd enforcement of Ii.ens of purely stnt utory origin when the amonnt in controversy does not exceed $:3,GOO; and such Court's dcciRion in such
ity ourts (which may be E' tab]i ' heel in all
ca e" hall be final.
cities having over 6,000 popnlation)haveconcurrentjurisdiction with
Circuit Conrts up to $1 500, xcept in probate matters, nit for
libel, lander, or divorce. or wh ere title to real e tate i at is u .
.Tn tice's jnri diction, $200. Party may cont' ~ j ndgm nt for $300.
,vhen a written obligation for the payment of money bind ' more
than 011 pa.rty the ,Tu tic, of tbe Peace may i ' ~ne proct•i:;~ again t
party to constable of any connty in the tale where pa.rty r c8idc .
:Executions may i ue nt any time within t"n yenr after judgment
rendered, and are returnable in 180 days. From a court of record
may i su to any county in the State. Arc a lien on personal property within tbe county from the time they arc placed in hands of
officer. The liens upon personal prop rty attach in the order in
which the officer re eive::i them. \Vhta levy i upon real estate
the dates of the jnclgment ' control the right to participate in the
pro eed , and they mu ' t be applied according to their priority.
Per onal property tak n in execution may be left with execution
defendant by the givm g to the officer of a delivery bond with sufficient urety. After judgment i rendered, the debtor may, by giving uffi.cient free bolcl ' tueties, have a 'tay ot execution on any sum
exceeding $100, for ix month . Where the sum is le than $100,
the stay i not so lon~rfil'~Itt~:Jl':li!b amount of j udgmeut. Lands
sold underl.Mro~W~;h-1?11,~w~~fWRlG~cYAfhin one year by the

B NKING AND coir:MERCIA.L LAWS-INDIA
owner, mortgagee or p r on having a lien thereon, the owner retaiI1ing poss :_-iion during th' redemption year and being liable for
rea onable rent' aud profit ' in case of failure tor d em.
:Exemp tions . Th re i 110 home ·t ad law. Real or per onal
property np to $600 i exempt where d htor L a re ident hon eholder. R side11-:; household r i entitled to ex mption as well
when in trnn it with hi fami ly and property a ' when permanently
settled. No rio-ht of exemp tion under chatt l mort ·aae. Pension
mon~y in tra~1 ir top n ioner ~s exempt, but when received by him
and mv tcd mother property u, no more o than any other property.
Interest. The recent "Act conccrninO' interc ·t and u ' nry,"
ap~roved l\1nr h 10, 1 7~, made considerable c~ange in the law,
which nrc herem embodied. 'I'he legal rnte of interest on loans or
~orb am nee of money good' or things in action, i ·ix per cent.,
as heretofore, but interest may be taken yearly or for n, horter
periocl in advnnce. No i1greement to pay a higher rate is valid
unless the same be in ·w nting, and in such c~ve it. is not lawful
to contract for more than eight per cent. per annum. When a
~reater rate is contracted ior, the contract is void a to the usurious
mtere t, and in nn action on a contract aft'ected by uch u ury,
whether it be directly or indirec·tly charged, all exces over six per
cent. is u nriou' and ii1 "gnl, and the exec ' oYer the legal interest
mny be r'coup d by the a.ebtor wheueYer it ha' been reserved or
paid before the bringing of 1he snit. Int ere t on judgments
rendered after l\forch 10, 1879, runs from the dnte of the verdict or
finding, at tb.e rntc 'pecified in the original contract, not exceeding
six per cent., and if no contract has been made, ix per cent.
is allowed. 'rhe act applies to all contracts made within the tate,
although they ure to be performed without it, and where contracts
made ont of tbi8 State provide for a higher rate of interest, and
are ecur cl b? mortgage npon lands within it, such hmd ' are not
liahle for a higher mte than is allo,rnd by the law of Indiana.
Judgments or courts of record are a lien upon all real estate
of clefeudaut wilhin th, county for ten year . Judgment may be
obtained at the first term of the Colll't, after process has been
serYecl on debtor ten clays prior to the fir t day thereof. By law
-Of 1 77, plaintiff, by indor ' •mcnt on complaint, can ummon the
defendant to appear nnd auswer after service had ten days, and
in default can take judgment, where no good cause of defen e is
shown. nnd it operates a a lien upon the real estate of the judgment dehtor situated in the connty. Transcript or jndO'ment in
Jn8tice Court becomes a lien on real estate or j11dgme11t d'efendant
from time of .filiug ame in office of the Clerk of Circuit Court.
Judgment taken by default. befor Ju tice of the Peace, may be set
aside 11uon the filing of au affidavit by the defendant, hewing good
dcfensf', provided defendant pay all the co t of preyious suit. Act
of 1 '9:3 provide ' for filing in office of Clerk of any Circuit Court a
CPrti.fied copy of any jndgmeut rendered by the Di trict or ircuit
Court of the United ~ rates for Di lrict of Indiana.
Limitations to Suits . Open accounts and contracts not in
wi-itiug, for u e, rents and pro.fit of real estate,injuries to and detention of property, recovery of persona.I property and relief against
fraud , six years; upon promissory notes, bills of exchange and
other written con11·acts for payment of money, ten years; actions
not limited by t-tatute, fifteen yenrs; other written contracts, judgments of conrt of record and real action , twenty years, Reviver: Part payment or new promi e in writing.
J.U arried Women retain their real and per onal property o-wned
by them at time of marriage or acquired during coverture. The
hu band i liable for the debt' of hi ' wife contracted before marriage to the extent of the peri3onal property he may receive from or
through her, or deriYe from ale or r~nt of her lands, and _no
further, an •i her lands ttre liable for uch rndebtedne s. A marned
womm1 may devise by will her eparate esrnte; may sell and
tnm fer her separate ·per onal property; carry on any business,
labor, or ervice, and receive the earnings accruing therefrom ;
enter into any contract in regard to her evarate p er onal estate,
"!)uF.ine s, labor or sen-ice, and her eparate e~tate, real and personal, be liable therefor. the ame as afemme sole · and her !:msband
created by the
is not liable for 'nch debts, uor for indebtedne
wife for improvement of her epnrate real estate. She can make
lease of real e tate for term of three years or le s, and execute
mortga~es to secure purcha e money, withonthusbandjoining. I s
bound oy covenants of title in conveyances of her separate real
estate. iier deed conveying her real estate, her hu bnnd not joining,
i abs uteJ y void. May ue as a remme sote for any damage to her
per'on or chara<'ter. Is bound in like manner a ' principal on h~r
official bond. She can not enter into nny contra ct of urety 'hip
whether as indor 'er, guarantor, or in any other manner, and such
eontract, as to her, is wholly void; and therefore n mortgage on her
separate property fo r a debt for which he i mere surety, mdor er
or guarantor, is void: but if she makes a s_worn statement that contract or mort1::;a()'e is for her own benefit, 111 respect t o her separate
e tate, and upon° the trength of s nch ~tat ment ano~her signs, she i
e topped from alleging h r mere 1 latlon of ·urety, 1:ndorser or g a_arantor. I entitled to hold a' exempt from ex cut10n her wearmg
apparel, article of personal adornment purchased by herself to
the amount of $200 in value, all jewelry, ornament , books, etc.,
which may have been given her as presents; and other property to
the amount of $300, except a against indebtedness for the pureha e money therefor. No tenancy by the cnrtesy or dow~r. A
widow take, one-third or her decea ed hu band's real estate rn fee.
and free from all demands of cr rditors, where the e tate does not
exce<id $10,000; one-fourth, if und r $20,oqo, and O?e-fifth, if aboH
he also take a chlld' mterest m the personalty
that amount.
where the number of childr n do s n ot exceed two, and where there
are more than two her intere t hall uot be Jes than one-third of
the whole of p rsonalty arter payment of debt , and in a~1 cases
takes $500 without accounting, and may occupy the dw~1lmg and
forty ncres of land for a year, rent fre e. But the on -third of her
decen d bu band' real c tate whicl1 the widow takes in fee, can not,
upon her marrying again, be ff ctiYely _convey d or mor~ga&· d by
her if th re b a child or children or then· de, cendaut alive oy the
pre~ion marriage. R al estate wl~ich hu baud and wile hold by title
an not b taken for the debt of
made to th m a hu band and wif
either: i not ubj ct to the lien f 'a judgment again t ither, ex ept
in ca e of the death of either or upon divorce grant d, wh en the
estate by entir tie i de troyed and be ome subject to levy and
sale; and a mortgage th reof by them both for a debt of the hu band
has no l gal valid1Ly.
0

TERRITORY.

591

Mercantile A ~odation . _Anynu1;l1berofper ~ns mayvoluntarily a ociate them el ,,es by wntte1;1 article to _be _igned b~ e~ch
per on who mav be a member at the time of orgamzatlon, specifymg
the object ' of 'the same, the corporate name they may adopt, t_he
1iame and place or r sideuce of each member or tockhol~er, with
an impres 10n and de cripti?u of the corporate se_al, and rn :what
manner pcri-ons shall be appomted or electe~ t_o manage the busmess
and :µrud ential co ucern ~ of any such assocrnti~m, for the p_urpo e ot
buying and selli~g merch~ u dise and condu~ti:ng me~·canule operations. ~ mount rnve ted rn any one as ocrnt10n hc1ll not at any
time exceed two hundred and fifty thousand dollars.
Notes and Bills of Ex change. Three day of grace are
allowed on all bill of exchange payable withi_n the State, whether
i-icrht or time bill' . Damaae for protest on bills upon any person
aCany place out of this Stelle, but within the United tat~ , five per
cent.: on bills drawn upon any per on at any place without the
United tates, ren per cent. Promissory note payable to order or
bearer at a bank in this rate, and bills of exchange, are goyerned
by the law merchant. Promi ' ory notes not l?ayable at a bank
are ubject to any et-off maker may ha':e agam t _payee, or any
nb ~equent holder, accruing before n?trce of as ignment. On
these, maker mu t be exhausted before mdo~·ser can be sued. Protest 1s not neces ary to hold inclor ' ers of uch note , but to h_old
them maker mu t be sued at first term of ourt after maturity,
unl ess it can be shown that he was in olvent at the time of uch
maturity. For all purpo es of pre e~t~ng for payment or a<?ceptance,
for the maturity and p ro test, and givrng notice for the d1shon?r of
bills of exchange, bank checl-s, promi sory note , or other negotiable
or commercial paper the fir t day of the week, collllllonly called
Sunday· the first d~y of January, commonly called New Year's
day; th~ fourth day of July; tbe twenty-fifth daJ: of Decem ber,
commonly ealled Ch ri tmas day· and any day appomted or recommended by the President of the United States or the ~o.vernor of
the State of Indiana as a day of public Fast or Thanksg1vmg. The
22d da,· of February commonly called Wa hinO'ton ' birthday, and
tbe 30th day of ~Iay,'commonly c~1lled Memorial da_y, the day of any
general, National ot State ele?t10n, are made holidays by statute;
and the tatnte expressly proyicles that all J?-otes drafts, ch e~ks . or
other neaotiable or commercial paper, fallmg due or maturmg on
either ol' sai d holiday , shall be ~eeme_d as having ma~u red on the
day previous, and " ·hen any of aid holiday come on l\fo~day they
shall be deemed as hnving matured on t he aturday p~ev1ous, and
when the legal holiday comes on unday the day followmg shall be
tbe holiday.
Partition of Land. Allco~ts and neceeeary es:penses, includino- rea onahle co un sel fee ' for plaintiff' roun 'el, the amoun t to
be....,determined by the court, a,rnrded and enforced in favor of those
entit led to partition again t the parti1io~1ers . and in snch proportion ao-ainst each and according to qmty at:- the court may determine. ha Ying re2:ard to their relative interests in the land or proceeds apportioned.
uits. No distinction between law and equity, as to pleading
and practice, excep~ t!J.at t~ere is no jury trial in equi~y causes a~ a
matter of right. Civil action are ~ommenced by filmg complamt
with Clerk of court, and ev ry action mu t be prosecuted m the
name of the real party in intere t, except nit by executors, admini ' trator , guardians of idiot ' or lunatics, trustee of expre tru ts ,
or per on expre sly authorized by tatute.
Taxe ~. State, county, town hip, municipal, school and road
taxe attach a a lien on real e tate, on April 1 of each year, and
penaltie attach on third Monday_of s_ame month in the n~xt year.
On e half of nll taxes may be paid without penalty, if paid before
third :Monday of April each year; other half, if paid before first
Monday of N ovember each yenr. ales of real estat e for taxes are
held on the first Monday of March, and all land on which taxes
are delinquent for two year are offered. Owner ha two years in
which to redeem, by paying the amount ~et forth in the certificate
of purchase, with all ubsequent taxe paid, and ten to twenty-five
per cent. upon the whole sum, with legal intere t from the date of
purcha e or payment. Lands are sold for one year 's delinquency
but the following year'b tax, not yet delinquent), is embraced in the
amount sold for.
uncupative wills, ·w here property of more than the
Wills .
value of $100.00 is bequeathed, are not Yali<l.. except as to the personal property and waaes or oldiers an d sailors in actual sen ice.
A nnucupative will mu t be reduced to writing withi.n fifteen days
after it shall have been declared and proved by t wo competent
witnesses who shall have heard the testator r eque t ome of those
pre ent to bear wiLness thereto.
o ,vill in writing hall ffect an estate, unle it be signed by the
testator. or by ome one for him in his presence with his consent,
and atte sted und sub cribed by two or m ore witneese , at his
r qnest and in his pre ence and that of each other.

IN DI:\N TERRITORY.

OnDIER IAL LA -W.
(Rede d by

HUT CHINGS

&

ENGLI H,

Attorney at Law ::\In cogee.)

may be taken within the Territory,
Acknowledgm.ent
before tb Judge or Clerk of the U nited talc Court, United States
omm1 ioner , and notaries public. \\ithout the T erritory, but
withm the United tate ". to be n ed in aid 'I' rritory, :h y may be
t aken before the Juclg of all)' onrt of the United SttLte:s, or of 'any
tate or Territorial Court lrnYing a eal, or before the Clerk of uch
Cour t, or before any notary public.
itizens of Indian r"ation are not subject to
Adminis tration.
same and ' l' the law goy 'ming the Indian T erritory, but are only subJect to th r ' p ecti \ e trihal law nnd net of their er n ral onncil".
Claim nrn t b authenticated aud pre ented to t he admini trator or
exccn tor within on oPi~~rnP~rJR-1 dat of lett rs, or they may be

UNIVERSITY OF WASHINGTON

592

BANKI G AND

O~llHEROI L LAWS-I DL

preclud d from any benefit. Claim not presented to the administrator or executor within two vear are forever barred. Priority of
claim again t e tate are a· follow : 1. Funeral expen e . 2.
Expen..,e of last sickne~ , wage of ervants, medicine and medical attendance during la t sicknes . 3. Jud~ ment which are
lien on land pos e sed by decea ed. 4. A.I 11emand without
regard to quality 1 which shall be exhibited ~dth·n o:r:e year after
the granting of letter . 5. All demand not c.xbi01ted ., ithin one
year, but within two years.
Foreign administrato rs may sue with liire ct. ect a if appointed
h ere.
Appeals may be taken from the United Sta~e-: Commissioners within thirty day from the rendition of the judgment to the
United States Court in the Indian Territory, and are tried de novo.
Appeals may be taken from the United States Court in the Indian
T erritory to the Supreme Court of the United States, an d to the
Circuit Court oi Appeals, e tablished by the Act of Congress, approved March 3, 1891, in the manner therein prescribed and set
forth.
Assignmen ts for the Benefit of Creditors can be made
of all the property, or a part thereof. Any creditor or creditors
may be preferred. Before any assignee of property for the benefit
of creditors is entitled to take possession, ell, or in any way manage or control it, h e must :file in the office of the Clerk ot the United
tate Court for the judicial division in which the property is located, a tull and complete inventory and description of the property as igned, and execute a bond to the United States in double
the estimated value of the property with good security, to be ap·
proved by the clerk.
But title to the property vests in the assignee upon the execution
and delivery of the deed by the assignor, and can not be defeated
by an execution coming to the hands of an officer after delivery of
the deed, but before the filing of the schedule and bond. Th e
assignee must file annual accounts current within the court.
He must sell the property at public auction, within 120 days after
execution of the bond, giving thirty days' notice of the time and
place of sale, and persons injured can sue on the assignee's bond.
Attachmen ts. The plaintiff in an action m ay, at or after the
commencem ent thereof, have an attachment against the property or
ihe defendaLJt in the following cases: Where the action is for
the recovery of money, whether the sum is liquidated or unliquidated; where defendant, or some of defendants, is a foreign corporation or non-re1:1ident of the Territory, or has been absent therefrom four months; or has departed from the Territory with intent
to defraud his creditors; or has left the judicial division of his residence to avoid the service of summons; or so conceals himself that
a summons can not be served upon him; or is about to remove or
t as removed his property, or a material part thereof, out of the
Territory, not leaving enough therein to satisfy the plaintiff's claim,
or the claim of defendant's creditors; or has sold or otherwise disposed of his property, or suffered or permitted it to be sold, with
the fraudulent intent to cheat, binder, or delay his creditors, or is
about to so sell with such intent; and in an action for the possession
of personal property where it has been ordered to be delivered to
plaintiff, and where the property, or a part thereof, has been dispo ed of, com:ealed, or removed, so that the order can not be executed. But an attachment shall not be granted on the ground that
de!endanr, or any of them. is a foreign corporation or non-resident
or the Territory, for any claim, other t han a demand or debt arising
upon contract. Where only a part of the parties, defendant in an
a~tion, are included man affidavit for attachment setting forth any
nne ot the above causes, the process is issued only against t he
estate or interest of such defendants as are so embraced, and the
ac1ion proceeds against the other defendants as a personal action in
the orainary form. Plaintiff must :file a bond, with one or more
sureties. The lien of an attachment is complete when the officer
executes it. The order of attachment bi11ds the defendant's proper ty in the judicial division, which might be seized under an execution against him, from the time of the delivery of the order to th e
marshal or other officer, and can not be defeated by a subsequent sale
or general assignment. Action by attachment may be brought in
anv- judicfal division in which defendant' s attachable property or
credits may be found, and several writs may be issued upon the same
complaint and affidavit to different judicial divisions. An attachment
may be ordered by the judge or clerk upon a debt not due, where
the complaint, verified by oath, shows tbat defendant has sold or
otherwise di po ed of hi property, or permitted it to be done, with
fraudulent intent to cheat or defraud hi creditors, or hind er or
delay them in the collection of hi debts, or is about to make
such fraudulent sale, conveyance, or disposition of his property
with such intent, or is about to remove hi s property or a material
part ther •or out of the Territory, with the intent or the effect of
cheating or clC'frauding his creditors, or hind ering or delaying them
in the coHection of their debts; and the complaiut mu t al o show
tnc nature a11d amount of the plaintiff's claim, and when the same
will become due. In all ca es of' attachment the defendant i at
lib ·rty to giv' bond and procure thereby the discharge of the
attached property.
ational
Bank . The law of the nited State relating to
d
Unit
the
m
where
ele
ta
cffe
and
force
ame
bank have the
tat .
Contracts. All contract entered into by Indian with itizen of
the United tate in good faith and for a valuabl con idcration,
and in accordance with tbc law of the trib or nation to which eaid
The Indian nation have no law
Indians belong, are val id.
itizem,
re tricting the making of mercantile contract of any ort.
of the nited tates may contract with one another the ame as in
the States.
Corporatio n . There i no law for the formation of corporation in the Indian Territory.
om L in tb Indian T rritory the
Costs. In the United date
estimat •d clerk' and marshal' co t"' are required to be d•po itecl
at the tim of the filing of the ·nit, and befon• the ervice of proce .
. . on-re ident are required to give a bond for co ts in addition to
depo it.
Corirts. Th e United States Court in the Indian Territor ha
juri diction in all civil cau cs where Lhe d fendant are found .in or
re ide in the Indian Territory, and all the partie to the uit ar
not citizens by blood or adoption of the ame Indian tribe or

TERRITO RY.

nation, in all matter ,,here the amount hrvolYed, damage claimed,
or thing in controver~y i over $100. It al o exerci~e ' the juri.,diction and powers of Probate courts, and has exclusiv e original jurisdiction in all probate matter .
The Indian Territory i divided into thr e judicial divLions . The
first judicial division i composed of the herokee and reek
nations, and court sit at In cogee in lay aud oYember of each
year; the econdjudicia l dh-i ion is com po ed of th Chocta,Y nationt
and court its at South McAlester in January and eptember; the
third divi ion i composed of the (;bicasaw and eminol nations,
and court sits at Ardmore in :March and October.
United tate Gorn.mi. ioner.. Thne are three United tate .
Comrni sioner appointed in each judicial divi ion, with powers
of justices of the peace, ,,hen the amount or thing in controversy,
or damages claimed doe not exceed 100. They have also the·
same powers as Circuit Court Commi sioner throughout the United
States.
Depositi ns. The plaiutiff may commence taking depositions
immediately after service of ummons, and defendant after :filing
answer. They may be taken on reasonabl e notice to th opposite
party, or upon interrogatori es and commission. When taken upon
interrogatori es, neith er party nor his agent or attorney shall be
present at the examination of the witnes unless both parties are
present or r0presented by an agent or attorney or unle s tbe opposite party or hit; agent or attorney bas been sea onabl y notified of
the time ancl ].)lace of the taking of said depoeition , or the party
attending has been notified by the oppo ite party to attend.
Divorce. The following are grounds for divorce: First. Impotency. Second, Desertion for one year without a reasonable cause.
Third. Where either party had a husband or wife living at the
time of the marriage. F01.1rth. Where either party shall be convicted of a felony or other infamous crim e. Fifth. Habitual
drunkenness for one year, or cruel or barbarous treatment as to
endanger the life of the other, or offer of indignities to person of
the other as shall render his or her condition mtolerable. Sixth.
Adultery. Seventh. Insanity.
. Execution s. Execution can not be issued until ten days after
Judgment, unless by order of the court. The same becomes a lien
on all personal property of the person against whom issued from
the time the same is put in the hands of the proper officer. It may
be stayed for three months by giving a good bond, except when the
judgm~nt is agU:in~t a c_ollecting officer or attorney at law or agent,
or agamst a prmcipal m favor of surety, or of a debt due haviug
the force of a judgment, or a judgment for specific property, or its
value in favor of vendor or mortgagor.
Executions obtained in any other than Indian courts ar not
valid for the sale or conveyance of title to improvem ents made upon
lands owned by an Indian Nation, except where such improvemen ts
have been made by persons, companies, or corporations operating
coal or other mines, railroads, or other industries under lease or
permission of law of an Indi an Council, or charter or law of the
Unit!=)d States. Upon a return of nulla bona on an execution upon
any Judgment agarnst any adopted citizen of any Indian tribe or
against a?y pe1:son residing in any Indian country and not a citiien
thereof, 1f the Judgment debtor shall be the owner of any improvements upon real eetate within the Indian Territory in excess of HiO
acres occupied as a homestead, su ch improvemen ts may be subjected
to the payment of such judgment by a decree of the court in which
such judgment was rendered.
Exemption s. The personal property of a resident, who is not
married _or the head of a !amily, in. speci~c. articles to pe selected by
such resident not exceedrng $200, m add1t10n to wearmg apparel, is
exempt from attachment and execution. A resident who is married
?r is t~e.head of a fa_mily has a like e~empt~on to the va~ue of $500
rn addn10n to wearmg apparel of his family. Exempt10n applies
only to debts by contract, excepting for purcha1:1e money of the
property which is claimed as exempt by the vendee. The homestead of any resident who is married or the head of a family is
exempt from the lien of a judgment and from sale under any p'rocess, except for purchase money or for specific liens, laborer's or
mecJ:ia?ic's liens, for ~mprovem_ents, or taxes, or against executorst
1:.dmm1strators, guardians, receivere, attorney for money collected
and other trustee of an express trust for moneys du e from them in
their :fiduciary character. A country homestead Rhall not exceed
160 acres of' $2,500 value, or eighty acres regardless of value. In a
city one acre of like value, and in no event to be reduced to less than
one-quarter of an acre. The widow and minor children of the
owner are entitled to a like exemption of her hu band's homestead
during the minority of the children and the natural life of the
widow.
Garnishme nts. After judgment the same may i sue against any
per gn _believed to be indebted to the judgm nt d Jbtor, and he may
be reqmred to appear before the Court. and discl o e whether or not
he has _in hi· pos ession any ~oods, chattel , money , etc., belonging
to the Judgmen~ debtor, and 1f he luwe any, judgm 1Jt may be rendered agarnst him therefor. In ca , of attachment a writ of garnishment may j ue before judgment.
Intt:rest. Six per cent. per annum is the rate of interest by
operation of law_; the partic may agree in writing for as much as
10 per cent.; all mterest beyond this is usuriou and void the ontract, both a to principal and intcre t. Judgments and deer, es
~t·ar the same rate of intere t as the contract ucd on. If no rate
i ' t xpres ed, then 6 per cent.
~•dgmen~s . There i ~o lien e tab!i h d by the ame. To fix
a hen execn 11on mnst be 1~sued. Actions on the ame must be
commenced within ten years from the dat of the jndgment.
License. Trad e• s must pay a liccn e fee to th Indian ation ot
f~·om $25 t o : 500 per: year. Licen es are granted by the Commiss~on r of ln?ian Affairs for the term of one year. Traders must
give a bo?d m tbe am of $10,000 to obey law and regulations of
tbe Intenor Dt·partment. Commer ial traveler are not taxed.
. Li :rnitatio~s. 4-~tion for liability on contract, exrre s or
1~pl1 cl, _not rn wntrng, all action for trespass on land or for
must
hb ·I, action . for taking or injuring good or chattel
be brougb t lll tbre years. All action of Crim. con. aasault
Cl

and b attery, and fal e impri onment, all actions of land,~. sp oial
?r g ~neral, and ~1~ actions again t officer for e cape of'persons
imprison ed on civib~~~Sr,Ollllllu t be brought in one year. AL

UNIVERSITY OF WASHINGTON

B

KI G A. TD

Onl nl ERCI A.L L

other action again t oftic r for mi ' l'easance or non- fea anc in
oilice, action upoo penal tatute , whl're the penalty or part of it
~oestotheTTnited tate-,or ver -on .:nina for H,nust be brought
111 two .Y ars. Actions on promi ory note not 11nder s ii, in fiye
years; from due nudeneal. ten years. On official bonds of l\far bal
or Constuble witl ,in four years from date o f cause. A tiuns
against Executor and ~\dmii1istratt1r8, eight year from tbe time
the call ·e of action Hccrut d. The act app1ies to non-rei:-idents as
w II as reim1cut . Fraudulently ab~conding from another .., ate or
Terri ory. without creditor , knowledge, eusp nds operath,n ot
stntnte until creditor becomes appri 'ed or the re'idence of the
d btor. Ou mutual account curr nt, statute begins from the dute
of la t item. An w promi ' e to take a cu ·e out of tatute mu t be
in writing, nnd no joint-c,mtrnctor an hi11d another by such lll'W
pro mi e; part paym nt tak s the ca e out of the ' tatute from its
date for a like pe1 iod a ' that which obtained in the original contract. lf claimant <.lie bet' re the expiration or the period, the
repre entativ \\'here acti n urvives ha one year after the bar
within wh1eh to sue, but not th reafter.
Married \Vomen. l\Iay hold separate property and carry on
separnte bnsine . If sh fail t o checlule her vrop rty, the burden of proof i on her in a cont t with her 1.lu buncl', creditor .
"\Vom n b ~come of a 0 ·e at eighteen. \\'He' , -eparate property not
liable ror any debt contracted by her uulet::s the contraet was made
wit.h pecial r fer nee to it being liable, or in reference to it.
Mortgages and Ch attel M1Jrtgage s , The law of mortgages torr al e ~tute ha no "pplication to the land tenure' of the
Indian Territory.
Ctrnttel mortgages ~ hen properly proved or acknowledged, shall
b rel:Or<.lccl or fil din the judicial diYi ' ion in which the murt 0 ·agor
re iclee. (See 49 Ark. '3.) T1.le acknowledtrment shall be by the
granter appearing in per on before the proper autbo1 ity, and stating that Ile had executed the same for tlie considel'lltion and purposr thel'ein mentioned and set forth: wbt •n it i to be provt n it
shull be clone by one or 111ore of the ubscribing witnee e. per ' onally n,ppearing bl'fore the proper uflicer.ancl t acing ou oath that he or
they saw the grautor subscribe such d ed or instrumeut of writing,
or that the granter acknowkclged in bis or th >ir pre euce that be
had ubscriued and ex ·cuted such deed or instrument for the purposes and consideration ther " 11 expressed, bnd that he or they had
subscribed the same a witne se, nt the requ st of the g, an tor.
\Vhen the instrument is so provtcl or acknowledg d and the mortgagee d0
not de:--ire to r cord the 8ame, be may file it m the
Clerk't1 office when b indor ·e' upou thu back thereof the following word : "This instrum 1,t i, to be filed, but not reco1 decl, and
such iudor ement must be igned by the mortgag e, bis agent, or
attoruey. \\ hen so filed it is a lien on the prop rty for oue year
from the date of the fl.Ina, bnt it ,,. ill be void a' again t crediturs
nfter the expiration of one year unless w1tbin thirty day next preceding the expiration of one year from such filing; and eacb .rear
thereafter the rnor1gage , hh; agent, or attorney hall make an
affidavit exh1bitiug at the time iast afore -aid th interest of the
mortagce churned by virtue of such mortgage, and if saic.1 mortgage
is to ccure Lhe payment or money, tbe amount clue and unpaid,
and such aflidav1t ball be attached to and filed with the iustrument or copy on file to which it relate .
Notes an<l Bil ls of Exchan!!e, The general rule' of commercial law on the e subjects prevail. 'l'bree days of grace are
allowed, and this applie ' to bills of exchange paycble at sh'.ht.
There are no holidays peculiar to the Territory. Notes and bill
due on Sunday. Fourth of July, or bri~tma are to be pre t nted
and prot sted the day befor , but notice need not be given until I he
dny aftt rwnrd. Protc t are the common form, and are made by
J\otarie Public. Acceptances must be made in writing. If the
drawee destroy or retain the lJill, be is tMken as ha ing accepted it.
The stntutes tix in detuil the damage, to be awarded the holder of a
bill iu ca~e of non-acceptance or nun-payment. Protested bills bear
interest at the rate of 10 per cent pe·r aunnm.
Protest. (See ~·ote and Bills of E.tchang .)
E--uits. ( 'ee Courts.)
Taxes. ( ee License.)
Will~. Every person twenty-one year ' old, of sound mind, may
devise all his c ' tate. and may dh,pose of good and chattel at the
age of eighteen. Married womtn can make will ' . Every wi!J
(except wbere mmcnµntirn will are allowed) mu t be in writing
and snb"""ribed by the te tntor or some oue for him, at hi' request,
at thee I, and if ' igoed by another, he mu t subscribe as wit11e ' s,
ands1atetheractinwriti11g. Thi siguingmu:::tbemade,ora knowledged to have been so I!rnde, in theyr~ euce of each of t~e atle ting
witn ,- -.ei:-, and at the time of the ' 1gumg or acknowledgrng he mu t
declare th, iu trument so subscribed to be his will. There mm,t be
ut least two witn sses, each siguino· his name as uch at the end of
the will, at the reqne't of the te tatt r. NnucupatiYe \Yills are good
to th, value of $5l 0. \Vhen a will of a nou-re::-ident of the 'l'erriory, relative to property witbin the same, bas been pro,·cd wirhout
the same, an antll n ticated copy thereof and the certificate of probate tbercof may be offered for probate in thi Territory and
admitted. Th Court h re hull admit 1 he copy, and, if it appears
from the c py that tbe will \\' H proved in the foreign court of probate 1 to be eo e:s:e:cutcd as to b valid for pt rso111:1lty. Wills are
prov od and aclmi1 tcd to record by the Uuiled ~ta, s ourt in the
Indiiin Territory in the judicial d1vi ion whl're the te tator re ·icled,
and if he bad no known r t.:idencc in this Territory, then in the judicial division where he died, or where bi' e tate or tbe great r part
rhereot liet-. or where there may be any debts due him.

IOWA.
BA KING LAW .
(Revised by vV

1.

B. COLLIN ,

ttorney at Law, Keokuk.)

The con titution provide that any act creating banki~g a soci~tlon must be submitted to a vote of the p ople; and. subJect to th1s
provi ion, the
neral Ass mbly may provide t'or State banks a nd

38

w

593

-IO, A.

branche .
tockhold ers are resp onsible to the amount of their
stock over the tock held . I n ca e of insolvency, bill holder s are
to be preferred.
u pension of specie payme nt is not perm itted .
The General A embly, by a two-third vote, may amend or repeal
any Jaw, and no special or exclu 'ive µrivilege hall be given . A
full and accurate ' tatement, verified by the oath of the presiden t or
vice-president, or ca bier, or two directors, m u t be made q uart erly
~o the Auditor of the State. The Auditor may cause to be made four
examinations per year ot eac~ b ank._ The qnarterly st1:lteme~t
must be publish ed for one day, m a daily newspaper published m
the county where the bank is located; and, ii there is no daily
paper, it must be publi ' hed in a weekly paper for one week. All
bauks other than 8aving banks shall h a,e the wo rd'' State,. made
a part of their name.
' aving bank are not to be incorporated under the g@neral i n·
corporation law, bnt under the provisions of Chapter 60, Section 15,
of Act of General Assembly. Tbey must have a capital of not Jess
than $10.000, which may be increased h1 the ame manner as the
original organization was formed. Upon a s,yor.n tatement of the
officers of the bank, the tale Auditor shall grant a certificate
authorizing the bank to commence business. Article of incorporation are to be filed with the Recorder of Deeds in the county w h1 r ein
is located the bank' principal place of bu ineE<s, and alsc a certifi ed
copy thereof · hall be filed ,vith the ecretary of tate. An allilonncernent of organization must be published in a county newspa p er for
four con ecutivt weeks. The period of incorpora tion shall not
exceed fifty years . Such bank shHll be managed by a board of
directors or trustees. nn mb ring not le s than five nor more th an
nine. who sball be shareholder and citizens of the rate, who hall
make oath to faithfully p rform their duties, w hich oath shall be filed
with the State Auditor . Elections are to be held annually by person or proxy of shareholders. ( ee chapter, enate fi le, 3, about
vote by director .)
Savings banks may receive deposits ten ti mes larger than the
amount of paid-up capital stock; a bank of $10,000 ca pital m ay receiYe deposits of 100,000; of $25,000 capital, may r eceive $250,000, and other sums in like proportion. Investment of f unds m ay
be made iu stocks or bonds, or interest-beHring notes or cer tificates,
of the United States, or o f thi State, and of any city, town, county,
village, or school district of this tate; but the asseti- of the bank
shall not exceed 25 per cent. of town, village, or school d istrict
bonds or warrants. Notes or bonds must be ecnred by mortgage
or deed of trust upon unmcumbered real estate, in thi t:;tate, worth
at lea ·t twice the amo11nt loaned. Such banks are empowered to
make loans and d1 count, purchase and Bell commercial paper ,
notes, hi lls of exchange, drllft' and other per onal or public securities; bn t they shall not pnrcbase, hold, or make lo&ns upon the
shares of tbeir capital tock. In loans upon real estate, al] expenses e.hal1 be paid by the borrowers, and in urance policie shall
be as igned to the bank for its benefit. They may hold real estate
to do busine sin and also that purchased at foreclo ure or other
judicial sale for debts dne it; but some of the real estate la t p ur chased shall be old within ten year after this title i vested in the
bank.
The capital stock shall be $100 per share, par value, ball be
deemed personal property,and shall be tran . .Jerable,but um t be paid
for before acquired. All ' hareholders hall be everally liable, over
and above the stock held, for an amount equal to their respective
shares, and no tran fer of stock hall affect such liabiiity for t he
period of six months thereafter.
uch banks hall n ot issue drculation, or contract debts except for depo ' its and for the necessar y
expen es of tran acting bu ' ine~s. The capital stock and assets ot
these bank , shall be ecurity to depositor'. The limit of liability
of any per on, company. corporation, or firm. to the bank, shall not
exceed 25 per cent. of its capital stock actually paid in. The un authorized u e of the term Savings bank is prohibited u nder penalty. All banks ball make quarterly report of condition. and transmit the same to the Auditor of State. The Auditor is also t o
examine each banking association four time a year. When a bank
is violating the law or doing an un afe business, the Auditor is to
direct a discontinuance of the same; and upon a refusal to report to
the Attorney General, the Auditor may appoint examiners at the ex pen -e of the bank. False statements and intentional fraud are prohibited under severe penalty. The capital stock is subject to th e
same rates of taxation as other taxable property.
lortgages a nd
other ecurities are exempt from taxation. Bnnks may reor a anize under the law, but are prohibited from advertising rnore capit a
than has been paid in, under a penalty of fine.
COM11ER IAL LA·w.
Acknowledgments of deeds to land made within the State before some Court having a e:eal, or Judge or lerk thereof or D~puties,_or some f ustice of t~e Peace,
Notary Public, ~r County
Auditor or his deputy, rn the Umted States or Territories
must be made before some court of record, or officer holding
the seal thereof, or by a Commissioner of Deed , appointed by
the ("-,-overnor of the State, Notary Public, or Justice of the
Peace; in the ca e of the latter official, his authority to take the
acknowledament bould be certified to by a Clerk of a court of
record, un~er seal of the court, as also his official character and
the genuinene s of bis signature. In foreign countries deeds' may
be acknowledged before any ofl::icer authorized by the laws of such
country to certify to acknowledgments, or any Amba sador }lini ter, Consular Agent, or other officer of the United tates pr~perly
authorized to receive acknowledgmentis of deed , but the certificate
of acknowledgment by a foreign officer must be authenticated by
one of the above named officers of the United State by hi official
written statement that full faith and credit is dne to 'the certificate
of such foreign officer. Witne es are not required.
Assi gnments an<I Insolvency .
o in olvent law. As ignment not valid unless for benefit of all creditors when assent of
credito_rs is pre umed. J;)ebtor must fu rni b "'.Orn inventory and list
o1 creditor ; and the a s1gnment, which vest m the assignee title to
all property of the debtor, must be recorded. A ignee must gh e
bo~d', prepar~ an i1:ve_ntory and valuation, and notify creditors by
mail to file claims w1th111 three months. All claims not filed withi n
thr~e mon ths. af~er n_otice published can ~ot be paid until all
claims filed w1thm said th~ee months are paid. Claims objected to
may be pa sed upon by a Jtuy, and the assignee is in all respects
Original from

O:

UNIVERSITY OF WASHINGTON

594

BA KI G A TD CO)Ij\IERCI.AL LA w -IOWA.

subject to order of court, and renders a final account thereto. All
personal property must be di po ed of within six months and all
real estate must be dispo ed of and final settlement made within one
otherwii;;e ordered by the
year from da~e of a ignment, t~nle
court. An a signment does not discharge the debtor from his debts
and liabilitie., but only E:ntitles creditors to share equally in his
e:8tate .. ~arn~ng .. by creditor f?r pers~mal services rendered at any
time witbm mnety dayR precedmg assignment, is a preferred claim
and to be paid in full. All claims filed must be sworn to and
claims not filed within three months from the date of the' first
publicati_on _will not be paid _nntil clai?1s filed within that time have
been paid m full. The assignment 1s docketed as a ca e in court.
Special ai;, ignments under the common law valid.
Atta< ·hment process will i ia:ue against all propertynotexempt
from execution on filing of a sworn petition, alleging 1st, that
the defeJ?.dant is a f~reign corporation, OL" acting as such; or 2d,
that he 1~ a non-resident of the State; or 3d, that he is about to
remoye_ his property out of the_ St.ate, without leaving sufficient
remarnrng for the payment of his debts; or 4th, that he has disposed of, or is about to dispose of, his property (in whole or in
part) with intent to defraud his creditors; 5th, that the defendant
1s about to dispose of his property with intent to defraud his
creditors; 6th, that he has absconded so that ordinary process
can not be served upon him: 7th, that he is about to remove
permanently out of the county and has property therein not
exempt from execution, and that he refuses to pay or secure the
plaintiff; 8th, that he is about to remove permanently out of the
State, and refuses to pay or secure the debt due the plaintiff; 9th,
that he is about to remove his property, or a part thereof, out of
the county, with intent to defraud his creditors; 10th, that he is
a.bout to convert his property, or a part thereof, into money, for
the purpose of placing it beyond the reach of his creditors; 11th
that he has property or rights in action which he conceals: 12th'
that the debt is due for property obtained under false pretenses'.
Attachment may be brought before the debt is clue when the 4th,
5th, 7th or 12th of the above causes can be alleged under 01tth.
The first attachment levied becomes the first lien, and there is no
pro-rating. The penalty on an attachment bond is three times the
amount of debt. No person may be imprisoned for debt in any
civil action on mesne or tinal process, except in case of fraud. No
judgment shall be rendered in any garnishment proceeding condemning the property or debt in the hands of the garnishee until
the principal defendant shall have ten days' personal notice of
1mch proceedings in a court of record and five days' personal notice
if before a Justice of the Peace, if defendant is a resident of the
county. If a non-reside, ,t of the county or State, the same notice
shall be given as is required for the service of original notices.
Pension money exempt from, whether deposited, loaned or invested.
Courts. Terms and Jurisdiction. After January, 1887, the Circuit Court abolished, and the District Court has and assume all
the jurisdiction of all suits civil and equitable, and have criminal
and probate jurisdiction. Superior Court.is may be eRtablished by
the vote of the people in any city of 7,000 inhabitants, and,
when so established shall be a Police Court, with jurisdictiou to
try all violation of city ordinances, and the same criminal jurisdiction as Justice of th·e Pe11ce Court.El. Has no probate jurisdiction.
Has the same jurisdiction as the District Court to try all suitt, in
law und equity, save and except granting divorces, alimony. and
,separate maintenance, and the trans~ript of Superior and Justices'
·Courts will b.ave to be filed in District Court to create a lien on real
-estate, and are then enforced as judgments or the District Court.
Terms of Supreme Court, January, May, and October. Justice's
jurisdiction, $100, or. by con3ent of parties, $300. No appeal from
a Justice unless amount exceeds $25. No appeal to Supreme Court
unless the amount in controversy exceeds $100, unless upon certifl.cate of Trial Court.
Executions may issne immediately upon the rendition of the
judgment. and are returnable in seventy days from the date of
issue. On the judgment debtor entering good and sufficient
security on the proper court records for the amount of sucb. judament, interest and costs-accrued and to accrue-he can have t">a
stay of execution as foll owR: under $100 three months, above that
sum, six months by giving bond, which shall be filed aud recorded
and have the effect of a judgment. Stay must be taken within ten
days from the date of entry of judgment, and the party taking such
etayci if he has been personally served with process, shall not afterwar be allowed to appeal. If the jndgment is not fully paid at
the expiration of the stay, judgment is entered against the surety,
and execution may be issued forthwith. After stay, judgment
draws ten per cent. interest by operation of law. There can be no
stay for wages due mechanic or laboring man, nor by a surety on
stay bond. Defendant may redeem real property so]d under execution at any time within twelve months, meantime remaining in
possession of the property, bnt where he has taken an appeal or
stay of execution he can not redeem. During the first six months
he has exclu 'ive right of redemption, but after that time, and
before the expiration of nine months, any creditor having a lien
can redeem.
Exemption . llomc tead of 40 acres in country and half an
acre m city or town, with building , without regard to value. Homesteads are exempt to any widow of a soldier or sailor. who
died of di ea e or woundB contracted while in the service of
Pension money. or
the United tate , or after di charge.
homestead pror.ur d by pen8ion money, exempt from attachment or execn tion. Peusion money, whether in posse!.sion or
loaned or inve ted. Per onal property exempt includes tools: instruments, library, neces ary team, etc., of mechanic, farmer,
teacher, or -prof es ion al man; wearing apparel, hon ehold anct
kitchen furmture, $200; certain farm animuls and necc ary food
for six months. Foregoing relate only to re iclent , being heads
of families; unmarri d per ons and non-residents being only
entitled to retain their own clothing and trunk , eave and except
pensioners. Where debtor is a printer, the printing pr s and
types, furni~,u ~ and material up to $1.200, are exemp~. Earnings
of debtor w1th10 90 days of levy are exempt. One i-ewmg machine
exempt to seamstres . No exemptions waived by failure to except
to levy of execution or to det:iignate or select exempt property.
Interest. Legal rate, eight per cent.; partie may contract, in
writing, for eight per cent. Judgment draw ix per cent., or euch
rate as is fixed by tbe contract on which the judgment or decree is

rendered, not exceeding eight per cent. per annum. Open accounts
draw six per cent. after six months from date of la t item. Contract for more than eight per cent. forfeit ten per cent. on amount
oi contract, and all int.ere t and co ts.
Judgments in the Di trict and Superior Court may be obtained at first term after suit commenced, if undefencled, and
judgment of the District Court are lien on real estate owned
by the debtor at the time of such rendition. If the land lie
in the county where judgment was rendered the lien attaches
from it elate; if in uny other county, from the time of fil in~ therein an attested copy of the judgment. Lien also covers ail landt
which defendant may acquire within ten year from elate of
judgment. Jud&'ments of Superior Courts aud Justict•s of Peace
Courts become 1iens on real f'8tate by tiling tram;cript in Di trict
Court within County where obtained, and become liene in other
countries in the same manner as if rendered in the Di8trict Court.
Limitations to Suits. Actions for injuries to per~on or reputation, or to recover a statutory penalty, must be brought within two
years; to enforce a mechanics' lien, two years; on unwritten contracts, five years; on written contracts, ten years; on judgments of
courts of record, twenty years; to recover real estate, ten years.
Revivor: Admission of debt or new promise to pay, which must
be in writing, and signed by the party to be charged.
Married ,vomen may own in their own right real and personal
property acquired by descent, gift or purchai::e, and may manage,
sell, convey and devise the same by will in the same mnnner as the
husband can property belonging to him. Ne1ther hn band nor wife
is liable for the debts or liabilities of the other incurred before
marriage, and, except as herein otherwit-e declared, they are not
liable for the separate debts of the other, nor are the wao-e , earnings or property of either, nor the rent or income of such property,
liable for the separate debtEi of the other. Contracts may be made
by a wife and liabilities incurred, and the same enforced by or
against her, to the sRme extent and in the same manner as it she
was unmarried. But both are liable for the expenses of the family,
and the education of the children, whether contracted for by one
or the other. They may be sued jointly or separately therefor.
D?wer and the estate of cur~es~ are abolished, but the surviving
w1fe or husband takes one-third m value of all the leaal and equitable estate possessed by the other during marriage.
l\1ortgagPs must be subscribed by the parties and acknowledged
and recorded same as deeds: are foreclosed bv civil action. Mortgagor has one year in which to redeem after execution s-1le.
Chattel mo1 tgages to be valid against existing creditors or subsequent purchasers withou1 notice must be recorded immediately
in the county where the holder of the property resides. A chattel
~ongage may include all kinds of personal property, aud the creditor may enter into posse1-s10n ot the mortgaged property at any
time after the execution o1 the inistrnment.
Notes and Bills of Exchange. Grace is allowed upon all negotiable bills or notes payable within the State according to tbe law
merchant, except those drawn payable on demand, and notice o1
non-acceptance, or non-payment, or both, is required according to
the rules oi commercial law. Damages allowed on protested paper:
three to five per cent. To hold indorser note must be dnly presented, payment refused, and indorser notified. Open accounts are
assignable. Paper fall ing due on Sunday, 1st day of January 30th
of May, 4th of July, the 25th day of December, and any day appointed by the Governor or by the President as a day of fasting or
thanksgiving, shall be considered and treated as falling due on the
preceding day. Defense!'l to non-negotiable paper and ac,.ounts accrued after notice in w ri 1ing of asi,,ignmen t to maker invalid as
against a~signee. Providing that if negotiable paper be obtained by
fraud, the holder thereof shall recover no greater sum than he paid
with interest and cost .
Suits. But one form of action in this State, known as a civil action and regulated by a Code of Procedure. Actions are commenced by serving defendant with notice, stating generally the nature of the claim, and filing a petition in court, ten days before the
term. Actions generally are prosecuted in the name of the real
party in interest, and in the county vvhere defendant resides or
property in question is situated, or cause of action aro e. Process
must be served in Justices' Courts on debtor at least five and not
more than fifteen days, and in the Di strict Court ancl Superior
Courts at least ten days, before the first day of term. If defendant
is served outside of his county, but inside of judicial district, process must be served fifteen days : el ewhere there must be twenty
days' service for every 1,000 miles or traction. Service short tor
first term is good for next term.
State and Cou11ty Taxf>s become due and payable on fir t Monday of January, and one-halt' thereof may be paid before the first
day of March succeeding the levy, and the remaining orn'-half before
the first day of September following: provided. where 1he half bas
not been paid before the first day of Apnl sue;ceeding the levy the
whole tax shall b ecome delinquent from the fir st day of March following the leYy. If the second in1stallmeut be not paid before the
fl.r~t day of October succeeding the levy, it shall be d elinquent. All
delinq nent taxes draw interest at the rate of one per cent. per month
until paid. Personal property i liable to distrl'RS and ale for all
taxes, and the tax list is the warrant therefor. When a mercha, ,t or
other prr 011, a se ,cd with p rsonal propt·rty only, slrnl1 Ett-11 and
tran,-fcr the nme, in bulk, after ~he taxc thereon arc due and pay!lbl e, rnch taxe shall become a lien npon nch p ersonal propl·rty
rn the hand of the vendeP, and shall be colkcti ble aaain t such
vendee tlw ame a if as es ed in his Imme. Taxes Oll prr o , al and
real property are made a pe1:petnal lien on real property. Lanciti are
sold on the first Monday rn December after tuxes become delinquent. 'fhref' rear Are allowed in w~1ch to redeem by payment of
amount for which lands were sold, with ten per cent. penalty, and
t~n per cent. per annum in~erest upon the wholt. amount: provided, after two years and nme months from the tax ale notice
mut-t be given to the per on to whom the ai d land is a sei;:s'c>d and
the person in actual P(?SSe sion, that deed will be taken ninrt.v 'days
hen_ce .. Where land 1s a_sse sed unknown and is unoccupied, no
notice 1s nece~sary: pr01;ided, that a non-rmiident m1:1y fih• with the
Treasurer of the county a written appointment of some reElident
of the county where the land is situated, upon whom service shall
be made. Taxes become a lien as betwee11 vendor and vf'ndee DE>·
cembn ~1st of each year. City t»x s are a e sed an<l collected as
provided by the ordinances of each city
·
ungina1 rrom
0

0

UNIVERSITY OF WASHINGTON

DANICI G AND CO~I1IERCIAL LAvVS-KA.NSAS.

I{ANSAS.
BANKING LAW.
(Revised hy J. G. SLONECKER,

ttorney at Law, Topeka.)

There is no co1rtitutional pro\'isi\H1 relating to banks except
banks of issu1-1. Other bnnks ar organized un rr the general corporation act,, bnt the chart r must ' tate the names and re idence of
stockholders and the nnmbcr of Rhan, held by each.
apital not
less than $5,0P0, of which half must be paid in before commencincr
busincs 1111d not I ss than ten per cent. each month the reafter until
all is paid.
npi tal may be increased, the incrense to be paid in
fnll. 'l'wenty per cent. of deposi. s mu t be kept on hand or on
deposit with solvent banks, nt I ast half of whi ch mnst be in casb on
hand. Not more than fifteen p 1· r cent. of capital nnd surpln ' shall
be loaned to one d btor. Officers criminally liable for receiYing
deposit ' when bank is insolvent. Dividendl'I can 011ly be paid out
of net profits after dednctiog bad debts. Printte bank"' are subject
to the provisions of the law. The bank commissioner or deputy
must mitke examination of each bank at lea ' t once a year. Four
repol'Ls per annum are reqnir d and the comm issioner urny call for
-0thPrs. 'rhe reports are practically the same a tho e required of
National banks. Refn ' al to comply with the law forfeits charter.

COMMER IAL LAW.

Acknowledgments. (See IJe~ds. )
A<'ti,ms. C lvil actions arc begnn in the courts by filing a
per.ition and prrecipc in tbc office of tbe Clerk, and causing summon::- to issue th rc·on. Security for costs must be given by the
plaintiff in each ca"e before ' ummous can be is ned, unless tlJe
plarnti:II file, an affidavit that his can e is just, and on acconnt of
his poverty he i ' unable to give security, Non-resident plain t ff:3
may de po-it a sum of morwy ~atisfactory to the Clerk, and rt'sidents
can depoi:,it $13 in lieL1 of bond for co ts. In actions on contract
,f or the recovery of money the am •mnt for which judgment is
-claimed mn ' t be indorsed upon the snmmons, and judg111 ent can
not be taken in case of default for more than the s ,1m ' O indorsed.
Ac ions couc ming r al C8tate muRt be brnucrht in the county in
which the land or a part of it is situated; other acti ons must be
bro .1gbt in the county in wt:li ch tlle defend L Jts or 1>me one of
the,n reside or may be snmmoned, except acrions again t fo:-t'ign
,corporations and non-re~idents, and in the latt r case the action may
be bro Light in any county wt:lere the defendant h :1s property or deb rs
owing to him. Actions against d : m1est1c corp(lr·1tion may be
broLwht in the county in wt:lich the corpora ion is situated or has
its principal place of bu~ines , or in which any of the p inciµal
officers reside or may be summoned. If tl1c corporation is an
insnrance company, the action may be bronght in the connty where
the ca.nse of action or l'lome pint rhereof arose. and as to foreign
insurance companies the summous may be served upon the ~tare
superintendent of in,nrance. Actions a~ninst railroadt1, stage lines,
etc., m :1y b brongbt i11 any county throngb Wt• ich the rnad or line
pa::ises, and senice may oe made upon any agent or upon any person authorized by said company, by no tice filed with the Clerk of
the Oourr., to accept service in such county. Action!:! for divorce
may be brought in the county of which the pluintiff is an actual
resident.
Aliens, if non-re idcnts, can not acquire title to real e ' tate; but
heirs of aliens who have h e retofore Required land may take uch
land by drvise or descent and hold the same for three years if of
age, and for five years if minor , when it reyerrs to the State if not
previously old in good faith. Minor aliens residing in the United
Stares may Require title by purchase and retain it for ix years after
they migh t, under the natnraJizatiou laws, have declared tlleir intentions to be me cir.izens, when it shall revert to the State if such
aliens have not become citizens. Resident aliens who have d eclared
under the naturalization laws their intentions to become citizens
may, dnriug six: years thPreafter, ex:erci e all the property rights of
citizens, " hen the land owned by them shall escheat to the 'tate, it
-such aliens have not bl'come citizens. No corporations in which
more than twen1yper cent. of stock i O\Yned by aliens shall acquire
or bold real c~tate. Forfeited land is sold by jndicial proces~, and
proceeds llfter payment of costs returned to alien om1er . An alien
own in~ land prior to the taking effect of this act can di pose of the
,s ame a nring hi life.
Appeals. Appeals may be taken from judgments of Justices ot
t he Peace to the District onrt, by tiling a bond of not less than $50
and not less than double th amount of the jui1gment appraled
from. Civil cases rn ay also be taken from the Di,,.1rict Court to the
Supr me Court by petition in error which has attached to it a complere tran cript of the case, or s1wh portion thereof as may be neees ary to raise th questions desired to be decided by the Supreme
Court.
Arrest. There can be no imprisonment for debt except in cases
of frand.
Assig-nments and Insolvency. Assignments must be for
the benefit of all creditors and only diE>charge tbe debtor to the
amount of payments mnde. The a~ ignmeut mui:-t be executf•d,
acknowlPdged . and recorded lik co □ Ye.1 t1.nces of real property; and
within thirty day after the execntion of the deed of as i!:mment. Hn
inventory of th8 property and effect' a 1-1igned must be filerl _in the
office of the Jerk of the District Court of the rounty i11 wb1ch the
aei i~nor re,ide , and mu toe sworn to ·,nd n chednle of liabilities
and with the name of th creditorei, the amount. aud cb>1racter of
their debtp:1, and 1heir addre~s sn far as tb -:ame ball be known to
the a ~icrnor, v riiied by his affidavit, shall b fil d on the date of
the exec11tion of the al" igument in the offi ce of Auch cler ic Tbe
C1erk, witbiu two days thereafter, shall mail to each creditor, whose

595

demand <·:x:ceeds $10, a notice of such nssignment, mime of the
a signor, diHe of as -ignment, name of as io·nee, ind names of all
creuitors and amounts a8 statect in snch scbedule; and ' hali name a
dny, not l<'ss than twenty nor more than thirty days from ~he date
of a signnwnt, on which creditors shall conye11e at hii,1 office and
c h, o e an assignee.
ntil such ch, ice is made the as::signee nt1med
in the a::.,;si ·nment remnin in po ' ession and control. If tt majority
in int re-t of the er, ditors w11use <.kbt exceed $10 are preseut in
person or hy attorney at the meeting, nn HSt'igne" may l)e chosen by
those repre'enting the gn~att"r part in valne and nnmber rrhe
assignee thn ' chosen must accept wit hin fiye days after hit' notification and tile a bond. If the creditors fail to elect an assignee the
Jndge of the District Co urt appoints. 'rhe assignee shall ap,,oint a
dny within six months after the dale of the a1-signment, when he
will procei->d publiclyattheconntv ~ent to adjust and allow demands
agaiust rhe estate; and he shall give notice of such tim and place by
advertisement. publhd1ed in so me newt-'paper printt>d in tlle county,
for three months, I h e last in1-ertion to be at least ronr Wt>e ks before
the appointed clay, and s11all al...:o giye notice by le tter addressed to
tlle creditors who::.,;e add ress iR known. The a1-signee ~hall require
nch evidence of th j nstice of such demand::, as i req nirf'd to show
justice of demands of a similar character iu tbe I Ji ·trict Court, and
aµp nls may be taken from the d<:>cision of the 11 signee. No preferences are allowed and no provis10n i...: made by law for any exemption to the family ot' the debi or, and the assignment is merely a
conveyance and t ran,fers what. is st~ted in the del'd or assignment,
anct no more. The Conrt or Judge orders sale of a sigm•d proµerty
in SU\ ha manner and at .:uch time a i-hall appear most advan rao-eons. Dividends are to be declared as soon a' practicable, and the
District onrt has general npervision of the assiV'nl'e
and or
0
matters pe, tnining to t he estate.
Atta~J11nent. At or aft r the comm encement of an action an
attachment may be had by either a resident or non-reRident ph1intiff.
The nfiidn,vit of the plnin1iff. his ao·ent, or attorney mu t bd filed,
slatmg tbe nature of th claim, that it is j11t-t, the amount affiant
believes ougll to be rt coYervd, and the xistence of so11ie one or
more of the following grounds : First. That defendaut is a foreign
corpora! ion " r a non-resident of the State < but in this case for no
other claim than a dem:rnd a1iRing 11pon contract. judgment, or
decree, nnles the cause of action aro~e wholly within the limits of
the Stnte). Second. That the defeudant absconded with the intention to defrnnd bis crrdi 1 ors. TMrd. That tb.e defeudimt has left
the county of bis re sidence to avoid a service of summons. Fourth.
Th at he so concealed himself that summons can not be served upon
him. Fifth. Tbllt he is about to remove his property or a part
the reof out of the jurisdiction of the court with the intent to defraud
his creditors.
1a.:th. That he is about to conv, rt hi."' property or a
p •ut tberno f into money for 1he purpose of placincr it be,·ond the
rea~b. of _his creditoro. Sev~nth. He has _pro erty or rights in
act10n which he conceals. Eighth. Ha1- as~1gned, r , moved or disposed of, or is abont to dispose of hi proper t.y. or a part thereof
with the intent to defraud, hinder, or delay his credirors. Ninth.
Ot· fraudulently contnicted or incurr d the debt on which the suit is
brongbt. Or, T enth That the suit is brought for dama!res from
the commissio11 of some f't->lony or misd menu 1r. Or, Eler,enth.
That t~e debtor has fHilecl to µay for i-my article or thing del ivered
for wl11ch by contract he was bound to pay upon d livery. On
5th, t:ith, and 8th an action may be brou2:ht and attachment had
before the debt i~ due, but nn order of the jLtdge i 11ecessary before
the attachment 1 sue . Attachment orders may issue to differ nt
conn ties and bond must be given to be a1>proved by the clerk, except
where the defendnnt are non-r ..:idents or foreign corporations.
Where any per~oo C?r co rpora)iou is ind e bted to _or llas property of
the d efendant m h1~ possess10n, orders of garmshment may issue
on similar terms withou t boncl, and garni::.,;hments may be sL1ed out
before jnstice of the peace upon oath of claimant that he is otherwise in danger of losing his dt"mand.
Chattel Mortg-ag-es. Every chattel mortgage or conveyance
intended to operat e as sn ch , which shall not be a companied by an
immediate_ delivery and_followed by an actnal and continuect change
of poss ss1011 of the thmg mortgagPd. sbnll b e absolutely void as
against the cred ito rs of the mortga!;or and subs quent pnrch Ysers
arn1 mor· g,.1°·ecs in good fait.h, unless the mortgage or n. true copy
thereof b11ll be forthwith filed 111 tlle office of the re!.!ister of deeds
in the county whe re the prop rty is at tile time; or if the morto·acror
be a resident of the State, 1 hen of the county of which he sb~ll° at
the time he a re sident. ,-\ 11d every t'UCh mortga~e shall be void as
a gainst the creditors of the mortgagor or ~ubseqnent pur hasers or
mortgagel's in good foith after the expiration of one year arter r:-ame
,ms filed, unle~s with111 thirty day next precedirw the expiration of
said year, and each year thert aft er. the mortgagee, h1 ao·ent or
attorn(•y, sball make an affidavit exbibiriog the interest"' of the
mortgagee in the propP- 1 ty at thar time, and the amount yet due
thereon. But !'luch affidadt may be filed any time if no p11rchase or
lien in ~ood f ait!1 hu_s inter\'ened, or _1 he mortgage~ after 1he year
and without aftid~tv1t may secure himself by takrng po::.,;sest-'ion
Snch affidavit slrnll b attachvd to and filed with the oriamal mort:
gage. 'l,bere is no stipnlated ti 1~e in which mortgage i-. to be foreclo ed. It may be done at any time nfter breach of condition and
before debt h, barred by statute of limirations.
A mortga~ee ~f chattels, after condi~ion b1:oken. may sell tbesame
~m ten day~ nonce by post( d ha1:d-bills without fnrther procecdmgs. Or, if the mortgage so orov1des, he may sell nt private sale·
or if the mor1 gagee has raken possession (as authorized to do
any time)._ t_he mortgagor or a sub~equent m~rtgagee may, before or
after cond1t10n broken, demand sale on notice as above. Any surplus goes to mortgagor or subsequent mortgagee.

at

Contracts. All c<,ntracts which, by the common law are joint
only, shall be construed to be joint and several. Any per'son jointly or severally liable with others for the paymen·t of any debt
may be released from such liability hy the creditor and such release shall not discharge the other debtors beyond the proper proportion of the d ebt for which the person released was liable. The
nse of private seals in written contracts (except seals of corporations) is abolished.
Corporations. Corporal ions ar formed nnder a g neral statute, bnt there are separilt provisions regnlating the diftP-rent kinds
of corporations and to o,ne extent the reqniremeutR of their organiza1io11. In gen ral, they ar formed hy the ex cution of a charter
by five or more persons,i,, ~t .1 at: t three of whom must be citizens of
unginal from

UNIVERSITY OF WASHINGTON

596

DA.NKIN G A D

OnL\IERCIAL LA ,Y -KAS .A .

tate. The charter mu t tate: First. The n ame of the cortbi
econd. 'l he purpo::-e for wbich it i formed. Third.
poration.
The place when~ its bus111e::- is to be transacted. Fo11rth. 'rhe
term for which it i to t'Xi t. F1Jth. The number of it directors
or trustees and the name and re~idences of thosP ,Yho are appointed
i x th. The amount of its capitai stock and
for the fir t year· and.
the number of share.., into which it i~ diYided. The l erson
signing the charter m nst acknowledge thP e:s:ecution of 1be same in
the t:'1:1.llle manner a the execu 1ion of a deed is acknowledged, and
the ame i then filed with I he Secretary of Statt:>, and the organ
ization of the corporntion date::, from the dare of filing. If no pc·riod
for the e:s:Ltence of tbe corporati on is uamec1 in the charter it exLt
for a p('riod of twenty years. The uarne adopted must indicate the
nature of the bu iness. The corporate name nrn1:1t begin with the
word" the 'and end with the word '·corporation," "company,''
"association, ' or "F-ociety," but this doc not apply to banks,
beneyoJent. or religiou::, ~ocieties. There must be at leai:;t ti.Ye
directors, three of whom must be residents or the l:,tatt'. There is
no requiremt:>nt of the number of shares a perrnn mnst bold to
qnalify l.lim as a director. The tre,isurer js required to have an
office in the Staie. The annual meeting oft hes ockholders l'or the
election 1,f ctirectors must be beld wit bin the State. hut the dirt-ctors
rnav hold meetings at sue h places a tbey desire. The capital tock
caube increa ed to an amonnt not exceeding thr,,e times the original amount fixed m the C'barter. Dividencts can not be declared
from anv other rernurce than that which reeults from profits. The
corporai ion can borrow money not to <'xceed the amount oi its
capital stock. Stockholders are liahle for debtR of the corpora1 ion
to the extent of any amount unpaid ou their ori_gintil subscription
and an additional amount equal to tbe par value of their stock.
Thi applies to all corporations, except railroads and religions
and benevolent societies. Corporatiomi must file statement::: annually in December with the Secretary of State under a penalty of
$:200 for failure so to do. Suits muy be brought by and against. corporations the same as individuals. There are laws regnlating banks,
msurance companies, raHroacls, alld other snch corpomtions, and
reaulating the manner in whicb such corporations organized under
the laws of other States may do bus ness within tbi::; State.
Courts. Terms and Jurisdiction. District Courts, holding two
to three terms a year in every county, have general original
jurisdiction in law and equity. Regular terms ot the Probate
Court are held in each county on the first Monday in January, April,
Jnly and October, _and spec~al o~ ad:io~rn.ed t_er~s. may_be held as
bL1siness may require. Justice's Jur1sd1ct1on m c1 v1l act10ns for the
recovery of money, $300; to recover specific personal property, $100.
Days of Grace. (See Notes, etc.)
Deeds. No particular forms of conveyances are prescribed, but
the following are provided for. Aconveyanceinsn b!--tance; AH conveys and warrants 10 CD (here describe premises) for the sum of
(here insert the consideration). being dated, signed, and acknowledged by the grantor, it:1 declared by statute to be a conveyance in
fee simple, wtth covenants from the grantor for himself. his heirs
and personal representatives that he is lawfully seized of the premises , has full right to convey tbe same, and guarantrei; t.he quiet
possession 1hereof, that the rnme are free from all rncnrn brauc ·s,
and he will warrant and defend the Eiame against all lawful claims.
A conveyance in substance: A. B. quit-claims to C. D. (here
describe premhies) for the sum of (here insert the consideration),
beincr dnly signed and acknowledged hy the grantor, is a go od and
sufficient conveyance in qnit-claim. The same rule holds in regard
to mortgages. As between _the partie~ ~onv~yan~es are valid _without being recorded. The wife should Jorn with her bus band rn the
conveyance, and any conveyance or mortgage of the bomeFtead
without her 11niting in the same is absolutely void. If the wife has
never resided in the State her signature is not necessary. Powns
of attorney to convey land must be acknowledged and recorded tbe
same as deeds. Grantors need not attach any seal or scroll to thPir
and no witnesses are necessary unless grantors are unable
sicrnatnres,
0
to write. Corporutions convey by deed, sealed with the corporate
seal and signed by president, vice-president, presiding member, or
trustee. The acknowledgment must be before a j ndge or clerk of
the District Court havi11g a seal, a Justice of the .Peace, Notary
Public, County Clerk, Register of De~ds, mayor or cl~rk of '.111
incorporated city. Every Notary Pubhc shall add to his officwl
signatt1re the date of the expirat ion or his co~nmission as Notary
Public. In case.s where the acknowledgemen t 1s made ont of the
Stnte it must be madP before a court of record, a clerk, or other
officer having the seal therPof, a Commissioner of Deeds for Kansai-,
Jut:itice of the Peace or Notlu-y Public, or before any consul of the
United Stat1s resident in any foreign country or port. When the
actinowledgmen t is mad~ befor~ a ,Jns~ice of. t_be Peace,_a clerk of a
court or record mu t certify to hi official pos1t1on. All rnstruments
of writing for conveyances or incnmbrnnces of real estate in this
State executed and acknowlectged or approved in any other State,
Territory or country in conformity with the la,.,vs of such State,
Territory' or country, or in onforrnity with the lnws of this State,
are as v,:tlid a if exccutl'd w1 thin this Sta: e.
If the deed is executed by a corporution, the president or other
per on execnting tbe ame shonld acknowledge it, and the officer
should certify that he was per onally known to be the preside11t of
such corporation, and that he acknowledged the execntion of the
instrnment for and on bellalf ol the corporation for the purposes
therein expre i-ed.
Deed and mortgacre mu t be recorded in the office of the register of deeds of the county in which the land i ~itnated, or they
will be void as to subsequent grantees in good faith without notice.
Depo itions. Depo ition are taken upon notice to the opposite party. 'l'he notice run t be erved o a to allow the adver e
party sufficient time, by the u ual route or travel, to attend, and one
day for prl'paration, exclu ive of unday and the day of service.
Courts are al o authorized to appoint connnis ion r to take deposition .
Tile depo ition may b~ tak~n by ~tating the fact in narrative
form, or in reply to questions f1rst \\ntten d~wu. . .
The depo . ition. muy be taken before auy Jndg , JU t1ce, or chancellor of any court of record, a ju ·lie of the pl'ac , :uotary public
mayor or chid magistrate of any city or town corpornt e; or a
cornrnis,ioner appointed by the Governor of the ~tate of Kan as to
take depo itions-such officer not to be attorney or relative of
either party, nor otherwis interested in tho event of the ' nit.

If there are ndjournment , thry shall be not d by the magi trate or other officer, from day to day, at Lhe clo e of the day imd
legal rea on therdor g Yen.
Objections should be entered to witne, es uppo ed to be interested, and toque rionssupJJO!:'edt obcillegal. Tbi~ ,utryi madeon
behalf of the party 1 aiRing tbe ob1ection ~imply by a short note
made by the magii::;trate or officer taking t Ile depositions.
Ei1ch witnes rnn .. t sign bi:- O\\ n depo~ition.
The notice mnst be attnched to the tlevositions nnd inclo ed with
them.
Ttie deposition shonld be commenced on 1he day named, and
ome µortion uf a depoi:-ition taken on each . ., ucces~ive day, nndays excepted, ndjoumments bt ing from tttnrduy to londay;
Sundays and 11ati0Lal holidays not bdng re1!ar ed. A legal reason
for every adjournml'nt :::honld appear in the officN's certiticate .
\Vb en deposition " are t:1kf:'n under an agr1l' ment the aboYe
instrnctions will be fulloVI ed, except wbere they are modifit·d l>y the
agn~ement. In such c1.1se the agreement will be followed. It "hould
l>e attached to the depositions, if sent, aud i ef1 ired to in the caption, ns the notice is, when takea under a notice.
If taken by interrogatories and cro ' -interrogatories, under
agreement or otherwisf', eacb interroga1ory and cros -intcrrogl:ltol'y
must be put to each ,dtne s a1 d ant-wered so far as be can answer
H, an~l the answer written down. The deposition must 8how that
e,1ch interrogatory and cros"-interrogato ry was thus put and answered.
The fees for taking deposition should be taxed, and a memorandum made by whom they were paid.
It the deµos1tions an· tal,e11 before the mayor, notary public. or
commissioner aµpointPd as afore aid, they mm,t be ce1 titled und r
bis offici 111:1eal. If before any of the other officers aboYe 1inm d, a
certificate mu~t. be annexed. under the seal of the court of the
connt y, or the great seal of the State, t bat the officer by wbom the
depoi::i ions \Yerd taken was, at the time of tnking the s11rne, snC'h
officer as he represent!-! himself to be in bi certifi·..:atc. This ton kl
be attached to tbe magistrates certificate.
This proof of official character is omitted when waived by arrreement of parties at the foot of notice. Thi agreeme11t doe ' not
waive the taking depositions at the time aud place uamed in the
n oUce.
The whole should be sealert up by the magistrate, the title of the
suit indor::-ed on the 011tside, the name of tlle otncer tnking 1he
same, and'' depositions ou behalf" (the party takrng the same)
and -addressed to the "clerk of the . . .... at . . . . . . .Kan as," or
•· ...... , jn~tice of the peace, at . .. , 'as the ca e may be. The
officer before ·whom the depositions arc tak<>n f'lhonkl indorsc across
the back of t he envelope, "Thesedepositin n~ Bea led up by me," and
sign his name oflicial1y thereto. (See Testimony.)
Descent and Distribution. The homestead is the ab~olute
property of the widow and chi ldren-one-halJ in valne to the widow,
and the other half to the children, when both survive. Tl:e homestead can not be divided or sold by an action for partition until all
the children attain majority. One-half of all real estate owned by
husband during coverture, and not conveyed by husband and
wife, nor sold at judicial sale, goes to the wife in fee simple;
except of land sold by husband whose wife never resided in the
~tate. Remaining estate goes to the surviving children, nnd living
issue of prior deceased, children taking per sti rpes, in equal shiues,
or, if none, to the widow. For want uf wife or child the whole e ·tate
goes to the parents. The rules applicable to widow of dece1:1sed
husband l:lpply to husband uf deceased wife. Illegitimate children
inherit from tl:le mother, and also from the fatber, if his recognition has been general and notorious, or in writing. When a
child would jnheri t from either parent, such parent will inherit
from the child.
Divorce. Divorces are only granted by di ' trict court for the
following causes: Former marnage; one year· abandonment;
adultery; impotency; preguancy of wife by other than her lrn band; extreme cruelty; frandnlcnt contract; habitual drnukenne s;
gro.:-s neg led of duty; conviction ot felony; and an action may be
commenced to declare tbe marriage void for want of c»pacity of
understanding or the parties. l:,ubsequcnt cohnbitation i a defense. 'fhe plaintiff mnst haYe retaideu in the ,tate on year, and
sne in the county or residence, by pcti ion, under oath. In ca e or
service by pnblicntion, a certified coµy of petition and notice:>, within
three clays after first µublictition, must be mailed to the defrndttnt,
and such scrYice must be proved by affidavit, or the p' niutiff mn t
make affidavit that the re iclencc of the clt'fcndant i unknown. Tbe
residence of the plaintiff gh·c~ jnrisdiction; each party may testify;
tlleir admissiOLt3 may be testified to, and deposition may be u ·ed;
temporary alimony p enclenle lite and suit mon 'Y be allowed by
court or Jndge in vacation. The wife's name may be chang d and the
cmtody of cbildr1 n awarded to her. A decree of alimony has the
same etiect, and may be enforced as anv other money j udgment.
Divorce is no bar to fnture rnaniage. Proceeding to reYcrsc decree of divorce mnRt be Cl)mmenced within six 111011th ' a1ter it ' rendition, during which time it ir:1 big·1my for either pnrty 10 marry.
Al imony nrny be sn d forwi 1ho11t divorc ' . .Afrer petition filed, the
court or j11d~e in vacation may control, by order, tile children and
re train the di ' position of the property.
Executions may be ordered a soon a judgment is obtained. It
is the duty of the Jn ' tice, without any order, to i ue execution
within ten days from rendition of judgment. Executions are
made returnable within thirty clay . PersoJJal property levied on
mnst be apprais 'cl, and adYertised for ten clay , and old at auction
to the highe t bidder. There i no stay of execution in the District Court, except where a cat1e i taken to the npreme Court on
appeal. and tben only upon th giving of proper honds. In judgments upon notes or mortgage when the written instru111ent conta.ine. the word "apprui ement waived," no execution or order of
sale can i ne until the expiration of six month after the date of
jndgment. Execution out of Di trict Court are returnable in 60
dayr.,. In Jn tice's Courts, by filing bond, stays or execution are
granted as follow : On any judgment for $20 and und "r, thirty
days; over $20 and under $50, Rixty clays; oYer $:'>O and not exceecling$100, ninety clays; over$100, one hundred and twenty days.
'rbe Legislature of 1b93 enacted a law providing for the redemption of real estate old on execution or order of ale. giviug the
d<,bto1 eighteen month in which to redeem. It provides that
where there are s@li'igiaal<freditors, that after tbe rnle the debtor

UNIVERSITY OF WASHINGTON

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O 11\IERCI L L \VS-I{A SAt,.

shall have twelve month , and if lie fail tor deem then creditors
may redeem from ea ·h other for three month . The debtor i entitled to po_ se sion of the. property during the period provided
for red mpnon, and no receiver can be appointed unle she commits wa1:<te. Thi act clii:'ipenses with appraitoe1nent, and provides
also that any contract waiving a rioht of redemption i invalid.
in existence
It i~ not Auppo~ea that this law appfie, to mortgaaes
0
at the time the law t ok effect.
Ex mp_ti~n . _Ilome tead of 160 acres of farming land, or of
one acre wltll m an rncorporated town or city, with bu ilclincrs therein, nnli mi.ted in value. Every per on residincr in this tate and
being the head of a family, shall have exempt'from seizure ~pon
attachment or execn tion, or other proce s is ned from any co1ut in
t~is tate: famil)'. Bi?le, school book , and family library; family
picture and mu 1cn.l 10 truments nsed by the family; all wearing
nppn,rel of the family, all bed , bed 'tends and bedding nt-ed by
the clebtorand hi family, one ookiug stove and appendages, and
all other cooking utensils, and all other stoves and appendages
nece . ary fo_r t~e u e of the debtor nnd _his family; one sewing
macbrne, spmnmg wheel, and all other implements of industry
and _all other household furniture not herein enumerated, not ex~
ceeclmg $500; two cows, ten hogs, one yoke or oxen and one horse
or mnle. or in lieu of one yoke of oxen and one horse or mule a
span of horse or mules, ancl twenty heep and their wool; n~ces ary rood for the support of nch stock for one year; one wagon,
two plows, clrng, and other farming utensils, not exceeding $300;
grnin, meat, Yeg ~tahles, groceries, etc., for the family for one year;
the tools and implement of any m1;chanic, miner, or other person, kept for the pnrpo e of carrying on his hm:iness, and in addition thereto stock in trade not exceeding $400 in value; library,
implements, and oflice furnitt'1re of any professional man. Also
personal earnings or tbe del>tor earned dnring three months precediug the garnishment or attachment, and th1:ce months' pension
money where uch earnings or pension money is nece~sary for the
snpport of the debtor's family. A lien on the homestead m11.y be
creat~d by h~1 l_rnnd and wife joining in the mortgage, al o for
material used m improvements thereon. ReEiidents, not the head of
a family, have tools, implements, a.nd stock in trade up to $400,
exempt from execution.
Interest. Legal rate, tx per cent., but ten per C<'nt. may
be ag reed npon. Exces of ten per cent. is forfeited, and in addition thereto there shall he detlncted from the amonntdne for principal, with lawful intere t, an amount eqnal to the interest contract ed for in exces of ten p er cent. The legal intere t originally
contrncted fnr <·ontinnPR nntil the debt is paid, and uo additional
intereet can be charged by way ot penulty for def'anlt. A purchaser
of a n egotiable note for valne before mntnrity, without notice,
take~ the note fre e of the u ' nrious taint, the remf'dy of the maker
being agairn,t the original holder. (Took eff ~ct May ·~s, ! '9.)
Judgment of courts of record are liens on real e tate of debtor
within the county, but lose then· priority over snb eqnent judgments unle s ext>cution is issued antl leYied " ·ithin one year after
judgment. The lien can be extended to other connties by filing
certified copies of j ndgment. Lien continues for five years, and
may be revived within one year thereafter: hnt the is~uance of execution prevents the jnclgment from becoming dormant t ntil
the expil'a.tion of five years from date of i ' sne of each execntion.
Justices' judgments become liens on filing transcript in District
Court of the connty in which they were rendered.
Limitations of Suits. An action for the recovery of real property, sold on execution or by ex:ecntors, administrators or guardians, brought by the execution debtor, or the heirs. ward or guardian, or any claiming unde r them after the date of the judgment or
order of sale must be within five yeurs after the deed is recorded
To recover by holder of tax deed within two years, and aaainst
holder of tax deed within ti ve years afrer recording of tax deed
Other actions for recovery of real property, within fifteen years
after canse of action accrues. On official bonds and con tract in
writing, five years. Contracts not in writing, three years. Trespas , detinue, replevin, injuries not arising on contract, and relief
on the ground of fraud, two years. The tlme during which any
defendant bas been ab 'ent from the State, or bas absco □ dert or
concealed himself, is not to be computed as any part of th e period
or limitation. If the cause of action arose in another tate between non-resident of this 'late, and by the laws of the .'tate
where the act n arose the action is barred, it is barred in this
State. Any cu,:;e founded on contrac t, part payment or a written
acknowledgmen t or promise, renews the contract. The statute
runs from the date of such renewa.l.
Married Women. The real ancl personal property owned by
n woman at the time of her marriage, together with the r n ts and
profit tliereof, and an v property which comes to her hy descent,
devi 'e or beqne tor girt of an v person except her bus band, remains
her sole and eeparate prop erty notwithstau ·ing her rnurria cre, and
is not snhject to the dispos d of her husband or liahle lor his
debt . .Married women may ell and convey their relll and personal property and enter into any contract with regard to the
same in the same manner and to the Fame xtent as a married
man may in rehtion to his property. Rhe may sue and be sued in
the same manner a.s if he were single. Rbe may carry on any
trade or bu ines , perform labor or services for her separate account, and her earnings or proceeds from labor, trade or business
remain her separate property, and may be used and invested by
her in ber own name.
.l\'.lortgagPs. A mortgage of real e tate, to be valid as against
snb eqneot bona .fide purchai::ers, mns r. be duly acknowledged and
recorded in the ottice of the Regi., ter of Deeds of the county where
the land is ituated in tbe same manner that other real estate
conveyances are. In the absence of stipulations to the c11ntrary,
the mortgagor of real p roperty retains po~E'lession until the mortgage i dnly foreclo eel and 1:<heriff's deed delivered to the pnrfort~age may be di charged on ma, gin of record by
cba:--er
mortgagee or attorney or a._ si nee in pre ence of regi1:1ter, or by
satit--faction ente red on the in trument when copied on the margin
by the regi t r; or hy an indep ndeot release rluly nckoowlt>rl ged
and recorded. Wife mu t join in all mortgages except those for
pnrcha e mon y
Mortgage are foreclo ed by suit only, in which all partie in intere t. ufaseqn nt lien holder a well as prior. are made pn.rties
defendant. No r al es ate within this State hall be sold for the

597

payment of any money, in Eiecu,ity for which it may have been
pleclg~cl, except in pn11mance or a judgment of a court of competent juri dictlon ordering ~uch i-ale. There is no strict foreclosure in Kan a . (For F\.1rms. see Deeds.)
(For Mortgages on Chattels, ce Chattel Mortgages,· see Execidion .)
Notes and Bills of Ex<'hange. All bonds, notes, and bills of
exchange, except bauk checks and sight drafts, made negotiable,
shall be entitled to three dar of grace in the time of payment.
All bonds, notes, and bills of exchan~e, foreign and inland, drawn
for any sum or ums of money, certam, and made payable to any
person or order, or to any per on or bearer, shall be negotiable by
indorsement thereon if payable to order, and by delivery if payable to bearer, so as to ab ol utely transfer and ve t the property
thereof in each and every indor ee or holder, successively; but
nothing in this ection shali be con trued to make negotiable
1:1.ny such bond, note, or bill of exchancre, drawn payable to any
person or persons alone. and not drawn payable to any order,
bearer or assign . No person or per ons, bank or body corporate,
re ' iding or doing busineefl w'.thin the limits oi this State, can be
held liable for prote t darnBges on any bond, note or bill protested
heretofore or hereaft er fo·· non -acceptance or non-payment. \Vhenever the third day of grace falls upon a Sunday, July 4, December
25, or January 1, or upon any day appointed for a public fast or
thanksgiving, the n ext preceding clay is the last day of grace. By
acL o f I !):3 a provi ion in note, bond or mortgage making amount
payable in gold is Yoid.
Protest. ( ee .Notes and B ills.)
Suits. ( ee A ctions.)
Taxe... One-half the annual levy becomes due December 20, and
if not paid all become,;; due and there is a penalty of five per cent.
added. If not paid by June 20 still another five per cent. is added.
The tax is then delinquent. and real property is nbject to sale on
the first Tuesday in eptember following. After sale it bears interest at the rate of fifteen per cent. per annum. and the same rate on
all nb,;equent taxes. Lien attaches to real e tate on ovember 1
in the year in which tax is levied, and lands sold for taxes are
redeemable within three years from day of sale and until deed is
is!-ued.
TPstimony. No person is disqnalified as a witness, in either
ciYil or criminal cases, by rea on of hi being a pa1ty to, or interested in, tbe eYent of the action, or on account of any religious
beli e f, or by reason of bis conviction of a crime. 'L'his rule of
eyidence ext~nrls to actions Jor diYorce as well a all other , and
even the 11 d 111i eions of the p itrties are received
In cri n°jnal ca,.;;es. the 1ailure ot the accmied to testify can not be
alluded to in argmnent or c mstrued as any evidence of gmlt. No
party will be al lowed to te tify in hi own behalf in res pee t to any
transaction or communication bad pereonally by such party with a
decea ed person. wh en the ad,,erFepartyis thee:s:ecutor, administrator, heir at law, ne:s:tof kin, snrviYing partner, or assignee of snch
d ecea ed µer,.,on, when they have acquired title t o thec~meofactio n
imm ed iately from snch d eceaeed pen-on: or of tran actions wb(•n the
otht-r parry th ereto is cl ecea eel; or of traneaction, with ad ceased
partner or jo nt contr11ctor in the ahFence of bi· surviving partner
or joint contractor; in all caFe , howernr, when the deceased'S'
deposition has been taken, and is used on the trial, the adverse
party m ·1 y le . tif'y.
'I'he following persons arc incompetent to te tify: Per ons of unsonnd mind; children und er ten year of age, e:s:c(•pt iu the discretion of the rnnrt; hus1,and and wife for or agains each other,
ex:re pt in ca--e ' of agency or j niut interes , but in no ca:::e conc<'rnim! communication marle during marriage ; nor an nt1orney. clergyman, or µby1:aicia11 with reference to conticlcntial communications
made to them, nnlr the party offer himself a a witne1" , in which
case the communication to s nch attorney, clergyman, or physician
on the same rnbj ect are admi' ihle.
Trui;.t~ and Powers. All trusts concerning land must be
created in writing exce pt uch as arise by implicHtion of law, and
no truet. whethe r implied or creatc•d, can rl feat the title of a purchaser for a Yalnahte cnn sid, rati11n without notice. .All inRtrument creating tr11 ts, c111ly execntert and acknowledged, m1:1y be
rt'C rdt'd in th e offiee of the rcgir-ter of deed~ of thP connty where
the land i ituat ed . and the record of such trust shall be df'emed
actual notice to all pnsnns claiming under a co11Yeyance made
party paying money to a
after the recording or the trn t deed.
tru t('e in gond faith i not r, Rponr-ible for the application of the
money so paid. Nor can any fraudulent application of tbe money
by 1he trn1stce affect the title of uch a purchaser. No truRt re::-ults
to one payi1 g the consirleration for a conveyance to another except
in favor or crediror or in ra:-1e of frnud. A dry or pi1 :-:ive tru t
pa se the title dirertly to the beneli.dary. rrbe ov<T-execution of a
power i only Yoid ])7'0 tanto. A married woman may be given a
power of sale of her fee w1 tbout the concurrence of her husband.
A power of sale in a conveyance as ecrrrity pa se to the one
entitled to the money the payment of which i::i secured.

Warehouse RecPipts. Warehouse receipts shall not be
isFu~d UJ_ile._s the property the~ein described has been bona fide
rece!''ed rnto store and_ sball be rn E:tore at the time of iesuing the
ecurity for a loan or
o snch receipt shall be IF ned a
receipt.
debt unles~ the property therein deRcribed hall be at the time the
proper ty of the pe, ~ on or company is ning the same and 1:1ctually
in store at the time of issuing euch receipt. No pH on hall sell
~ncam~er, ship, transft->r, or in any IJHnn er remove beyond hi~
1mm_edrnt~ cou~rol any prop~rty for which a receipt ha<: been given
as aloresind, without the wntten ussentof the person holdincr i::uch
rec ipt. Receip~s for grain i ' sued hy any warehouPe are negotiable
by endorsement m blank or hy spf'cial endors m nt in the Fame manner and t~ tbe_ Pame ex:1e1 ,t ~: bills of exchange and promi~sory
notes .. V10l11t1on of !he prov1 1ons of tb act iti a f lony. Lbe penalty herng not le s than 1,000 and not more tht1n 5 000 fi1 1e and
i m ~ri onm<.. nt in the penitentiary not le~s than on y ar nor 'more
than fiv e years.
uy person or full age and sonnd mind and memorv
Will .
having an inr ere tin real 01: personal property of any d ;;:criptio~
whatever, may give and clev1fle tb same to any per on by la!:lt will
and teetament lawfully executed, F-nhiect. neverthelePE<. to the
ri g hts of creditorFi, and to the provi ion~ of this act. Will mn t
be in writing, signed ,at. the end by the testator ' or another in bis
ungina 1rrom

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BA KING A

D COnI.MERCIAL LA 1V S-KE TUCKY.

pre ence and by hi e:s:pres... direc ion, and "nb cribecl iD bis pre ence h, two or more competent "'ime ... s~s who saw him snb crihe
or hea1·d him acknowledge it.
ompliance " ·i1h these requirement
should app ear in the witnes~ing elan~e. A " 'ill e:s:ecut d, proved,
and alJ r.,yed in another tate. according to the laws or that tare,
relative to prop(;:'rty in thi
tate, may be admitted to ree, rd in tbe
Proha e Court o f tile county in which i-uch property i i:-ituated, by
producmg an authenticated copy, and thereupon ha the same
validity as if made in t bi State
.
~
E,·ery ,Yill, when admitted to prohate, shall be filed m the c,ffice
of the Proba1e Court, and recorded, to 5etber with the te timony,
in a book to he kept for that pnrpo ·e.
Any person may. m'lke a wi1l in writing and _inclose the same in a
sealed wrappPr, with the nam, of 1he te8ta~or rndor~ed thereon, and
depm,it the ,Yill i.n inclosed and indo~sed m_ tlie office of the J~1dge
of the Probate Court in the county 111 which such tes1at,,r live~,
su bj •ct to the o rd,·r of the testator only during hi life.>, and af e r
his death to be delh-erecl to the party nal)led on the back of the
package a.., the party to whom it i to he dell\·ered; and if no such
party 1s named, tbeu to be publicly opened in the Prvbate Court
within two monlhs afrer notice of the death of the testator.

KENTUCKY.
(Revised by W. 0.

HARRIS,

Attorney at Law, Louisville.)

Acknowle<lgmPnts an<1 f'ertiiica tes. Deeds executed within the State m nst be ackuowledged before the Clerk of the Couuty
Uourt or Notary Publi<:. Deeds ?ther than those of manie~ women
mav also be acknowledged before and proven by two witnesses.
Deeds executed without the :--tate and within the Cni ted States must
be ackuow1eda d before the Clerk: of a Court or bis depnty, Notary
Public, Mayor'of a city, Secretary of State, Commis~ioner of Deed~ ,
or Judge of a Court.
Deed:- executed without the United States muP-t be acknowledged
before a fure ·gn Miuister, Consul, or Secretary o(· Lcgatinn 11 f t~e
Unitt>d States or the Secretary of Foreign Affair~, or Jndge of a
Superior Coui't of the n 11ion where 1be deed sball be executed,
atte-tec.1 in either case by the offic r' s seal of oflice. ·when the acknowlec1ament is taken hv an ofticer of thit! State he shall ~imply certify tbat1"'the deed was acknowledged before him, and when it was
done.
\\. hen the acknowlpclament is taken by au officer residing out of
thi::i State it must be C<~'tified in effect as follo\-\ s:
State of .. .. ......... • • •. • .. • • • .. · · l scT.
Conaty .. ..... . .................... {
I ...... docertifytha1 this instrument of writing from . ...... and
..... bis wife,"' as thi~ day produced to me by the parties, and
acknowledged ancl deliverer1 hy .. .. .. and ... ... his wire, parties
thereto, to be their a ct and deed. and the contents and effect of
the in!'-trnment bcinir explained to the mid . .. . .. by me, i-epa ratel y
and apart from her-hu:-band, she thereupon declared that she did
freely and Yoluntarily execute and deliver the same to be her act
and deed and com- euted that the same might be rrcorded.
Given ~nder my hand and !:;eal of office this .... day of ........ .
As ... ignment and Jns,1lve11c_y. There are two statutory provi sions on tbe subject of insolvency. First. Any assigume1~t,
mortgage, sale, judgment, or other dt::vice r~:5 )~'ted to by a debtot· m
conte1nplation of insolYency and _wt ha ce~1u_1 t0_ prefer one Ir
more credit ors, if a1:<"ailed by pet1t1011, filed withm s 1~ month• after
the tr1msfer h; recorded. sh1:1ll enure as a geueral assignment of all
the rlehtor's c:fft'Ct~ for tbe equal benefit of nll creditors. Seconcl .
Assiguees for the benefit of creditors are required to exec ut e bond
with sure, y to be approved l)y t be Uonn ty Court, and to take an
oatl1 fairhfnlly to ex, cute the t1 ust. 'l'IJ cy mn::;t also return an
inventory "ithio 1-ixty day 8, and a repo1 t or sale::i within two yea rs
from q alificat ion.
Atta<'lnn P11ts. 'fhe plaintiff in an action to rPcovcr money
rnav obt , in an 1itt11cbment against: First. A dcfen •· an1, wbo is a
forciITT1 corporation or a no11-re:-ident or the State. S ,-co 11d. ,-rho
ha b%eu absent therefrom four months. 1'!1 ird. Who has deparred
therefrom w1tb intc11t to defraud hii; crrdito,s. Fo 111'/h Wbo bas
left the county of biM re:-idence to avoid the ·nice of a snmmons.
Fifth. \Yho :-,;o couce11l:-i hituselr that a summons can not be t~rve_d
upon him. Si.ff/i. Wbo is about to remo ,e_o r ,hns removed ?1S
prOpl'rty or c:, ma,teri~I pa,t ther_e ~ ~nt o~ tills Rtut1i. 1~ot leaYrng
enon<rh thcreiu to sa11:-fv 1he plamnfI ~ claim, or the chums of sa id
defeird •lllL',.._ creditor~. · 'ere11tli. Who ha-- olcl, conveyed, ot·
otbt'rn ii-e c1i-,po~ed of llis property, or 1:mfferecl or permitted it to be
olcl with the frandu lcut intenr tu clwat. hindel', or delay hiR creditors' E,uhtlt. Who i:-s about to fell, convey, or otherwh;e dit-:pose
of hi property with :1ch inte11t. ( Hut au at1ach111ent shall not Ile
grantecl on the ground that 1hc clefe11cLrnt ~-- a foreil,!ll corpcnation
or a 11011 -rl'i-icle11t of tllh:, Stilt<', f Jr any claim <•tlier than a cleht or
demand ari-.ir,g upon a c·on1ract, t'XJ1n·--t-, or imµlierl, or a,iudg111cnt,
or award .) Al:--o in a11 UC'tion for tile reco\'e ry o mom·y c1nt• ll])Oll a
contract jucl ,riuf'nt or award, it the clef'emlunt have 110 prnperty in
thi-. 'tat'e uCjl'Ct t~ cx<·cntion, or !lOt e11011gh therl'of t_o ~ati,fy the
plaintiIT':-- cl rnancJ, and tlte coll ·ctt n of th e clenrn11cJ \\l I he C1JL!a11g red by de lay in ohtai11iug j 11cl~ment or an turn of 110 P!'opcrty
f ound. Al:-:c> in an ac tiou to re('ovvr pcr:-:onal pn,pcrty "l11 ·h Ila:-;
bee11 ordered to b · d(•livered to piaintitf, a11cl \\'hich pr }H'l 1) or pnr t
tlwreof, ha1-1 hcen J1:po. 1•d of, eonc<•aled, or re111ove~l. i,o tlrnt Lue
order for it"' delivery Ctlll not b · t xecut('d h) the shcntr.
A.ffirlaril mul Bond. Before an attachment can he ohtailwcl
an aftidavit m, 1 t b · filed, LHmii1g: i t. Th · 11at1m"' of plai111iH's
claim. ~d . 'l'hat it i:-- j11 t. 3cl. Tile Htlll "hich atliaut helie,c•i; th
plaintiff ought to rc·covcr. 4th. Tl1e fromHl oft~ tachm_e111. Jn 1~11
action upon a. ierurn of "11utt,1 bo,,u 110 0011d 1 · rcq utrl'tl, hut rn
all otht>r casP" bond mu t be gi\cu, \\ith gooLl ·u rcty, in clouble tbe
amou11t of the c);um.
Hilh of I.ading. 'l'here i no statutory proYii-ion on t bi subject in Keutu<.:k) .

Collaterals. There are no statutory provi ions on this subject
iu Kentucky.
Cont acts. A seal or ecroll is in no ca e nece~sary to ('rive effect
to a deed or other writm~. All un ealed writing 'tand upon the
same footing with sealed writing\ having the ~ame force and efft>ct,
and 1he same action' may be fouudect 11pou them. Tile ::--tnte or
Conntv seill or the seal of a Conrt, corporation or "otary to nny
wri1ing ha , not, however, been di:;;penE'ed °" ith.
harnpertons ~011tracts, gaming conTa cts,and contracts or as~unmce nrnde_or given
in comiderat ion, jo wbole or in part, of any tick tor share rn u lottery or share in a prize therein, 11re void.
Corporation s . By the constitution adopted eptember 2 ,
1891, the power to grant special clrnrters to corporation is taken
away from the Legislature, whic!1 is re~1uil'ed to_eu~ct general lnw
for th' incorp01a1ion of compa_mes. 'I_lle c11nst1tnt101;1 al.:o repc~1l
all existino- char1ers uncler wlllch busmc s haf< not 111 good fulth
bcrn comnfenced prior to September 2A, 1 91. The following i an
outline of the provisions of an Act \\·hich became a law April 5t
1 93:
Existing Corporations are allowed to oi:e.rate nnder. tlwir
charte rs nntil September 28, 1 ~97. when all prons1011 thereof mconsistent wit t:l the new Act sball tnnd repealed, and tlwreaftcr the
corporation shall be deemed to be organized nnckr snicl Ac1. Such
corporations may also reon~anizc under tbe new Ac.t, or mny amend
tbeir cba1ters uud,-.r it: but in tho iat er ca e it mu~t fir ' t, by re olution of iL8 Board of Directors, accept tbe provisions oi the new
constitution.
All co,porations are requirrd to have a i!!n over th<'ir principal
place of busines•, and on such sign aud on all printett or adYt rtising matter, to cause to b e painted or prin 1ed the wonl "I11corporat<:'tl," under penalry of fine of not Jes::- than $100 nor more than
$500.
Anv number of person-: not 1 e s than tbree may b ecome incorporat ed.by signing and acknowledging ~rticlrs of 1ncorl?or'.11 ion, specifying: 1st. The nam ,~ of the cnrporat1on. 2tl. lt8 pnnc1pul place of
bnsiness. 3d. 'J be 11ature of its busine~s. 4th. 'fhe amount of c 1pital stock it any. and number of shares. 5th. Na.,nes, place ' of residence a1;d number of shares sub cr1 hed by each stoc"holder. 6th.
Date hf commen cement and of termination ol corporate t'xis euce.
7th. By what officers bnsiness is to be conducted . and time nnd
place or eleGti0}1, 81 h. 1?ighest amoun~ 1 f iuclel>t~dne or ii ability
wbicb corporation may rnc11r. 9th. v\ hether pnrnte property 01
stockholder~. not s ubj ect by trJe provii:<ions of the Act to corporate
drbt8 shall be liable therefor, anct, if so, to what extent.
aid art :clt's'shall be ackuowledgecl and recorded like deeds h1 the Uou11ty
in which the pdncipal place of bnsinesi:- ii:i situated. ancl a copy
thereof til ed nud recorclecl in the oftice of the t-ecretary or Staie.
Af er snch tiling anct recorc.liug, an<l the payment to t be Stare of a
licensetaxofone-tentho foneper cent. on its cnpital 1-tock, the corporation is det>med folly organized; but, before tran1::1acting any
business other than with itl:I 1,wn stockholdert:1, at leai:-t 50 per cent.
of its t:1tock m st in go d faith be ::;11bscribc·d, payable at such times
as the Board of Directors may require. l:itockholclcrs are liable to
creditors for their unpaid snbscriµtions, and to the rxtcnt of the
par val ,e of the stock in addition. From th s double liability are
excepted stockholders in the fo]]owing cla8 cs of orpor,1t1on.:, to
wit: Charitable, beneYolent, t ,1rnpike, bridge. railroad, telegraph,
telephone, mining, wmer-wny, water, gas, and al1 companit"S.
Corporations are forbidden to take a lien on or purclrnse thvir own
stock, except to secure a pa st i ode >teduess, or to l ngage in any bu i1wss other than that for which it w as organized, or to hold rral estate in excess of what is necessary for canyi11g on its bu"ines ' , for
a longer time than fl.ye year . under penalty of er::cheat.
Directors must 1,ot be less Luau thr<'e in number aud each
must own not less than three shares of stock. Elect1nns must b
by hallot and shall be held in th ·s Stnte. The first election mnst b e
held at a m <'eting held b efore the corporation commencl's busiuC'i- ,
and thereaf ter an election mu~t be held annually on the day named
in the by-laws, which must not be changed within sixty da., sol the
election. Of any sucb chauge nolke mnst be given to each stockholder twenty days before the e]('ction.
Any corporation organized und er this net may, by the consent in
writing o f a majority of its stockhold ers, unless oth rwi ' e provided
in its cl1arter, close 1ts bu iness.
N olice of such clo-iing must he published at least once a week for
four consecu ti-v e weeks in some newspaper publish1,d in tbe county,
a nd all deb ts must be paid in fu11 before the officers receive anything.
Cu1·porations organized to carry on the bu inc s of bankingt
bnildrng and loan, trust in urance, and railroading, arc goverut:d
by special provision of the act.
Days of Grace . There i no statute on th· subject, and onr
courts bold that it is regulated by the custom of the place of payment. The cnstom ge11era ly pr~•vailing in Kentucky, is to allow
three days of grace on all uegotiable int:ltrument .
Depositions. Proof may be tak en by depo itions in all (Jnitable actions, and in ordina, y or common luw action fl, where the
witnes · reside twenty mile s or more from the plaee where the
court is held, or is ab ent from the 8tnte, 11rnl iu many other ca -es
frnnmnau,d in the ~tatute wheie the\,\ irne~s it- privilege .
Depo-1ition a·e taken ei1her on notice to th e oppot::ite pmty or
upon written int rrogatorie~. 'l'he orcJimny mcttrncl of taking
is upon notice 1 bnt where the pine of taki11 g i more than one
day's travel by ordinary method:-- and more than one hundred
mile from the ph1c' of ~itting of the comt, the party 1 •ceivmg
notice may reqnire the depo tion to be taken upon i11tenognto1ies
by giviug 11otice to that cfft ct to the ud v ri::c 11arty or his
attorrn·y upon the 1:<inne dny, or the day fullowing th, one upon
which the HnH notice was 'erve(l. Except i11 d1 vorc ca ei:;, rle poitio11s are required to be taken upon rntenogatori('S, if all the
µ1:1rtie · ugai11st whom they are to be read have been con~tructiv ly
n mmoned and have 11ot appearecl, or he clef endaut , or und( r disabi lity other than overture or infancy and cuverlur' combined.
In l'Yeral o her ca"'c, nurnenitcd in the 'iv 1l Code. th e c.:onrt rnay
require depoi:;iti011s to b e taken npon i11terrogatol'iei::, and they may
n1 way be ·o taken by con i-ent o f all parties
The o1licer unthoriz •d 10 take deposit ion in thi .,tate, to be
u1:-1ed in its cour1 , are: An examiner uppoiuted by tt:le Judge of th e
'irc uit Court of hi <i~trict, a Jnd1re or 'Jerk of a onrt, a Ju tice
of P eace. o r a rotarydf~~ij.1.from

UNIVERSITY OF WASHINGTON

B . .\.. KI G
Depo itiou may be taken ont of thi , tate before a ommi siouer appointed by the Governor of thi tate, or before a Jutlge of
a Conrt, a Jn tice of the Peace Mayor of a city, Notary Pnblic, or
a.uy otber person empowered by a commi --ion i , n d to him by
consent of the parties or by ordt:r of the ourt.
It' th' d ' i)0.:1 itiou i' taken upon int .. rrogatorie neither party is
allowed to be present, tither in p r'on orb) agent or attornt:'y.
The officer' ertificate must ' tate when and where the depo ition
wa t,1,ken; that the witn "wa duly ' IYOrn before giving it, and
that it wa written nnd ub,cribed by him in the officer' presence.
or wa written by the officer in the pr -ence of the witne~ and
in the pre ence of the
read to and subscribed by the witne
offic r.
1'he certificate must also tate whether or not either of the partie and, if either, which of them was present in pe1"011 or by agent
or attorney during the examination of the witnes'.
The officer may trnn..,rnit the deposition in a scaled envelope
omt, with an endor ement showing
addn'~sed to the Jerk or th
the style of the action, and thnt the env elope contains depo'ition .
This may be ent by mail or by private per on, in which case the
per on mm-t make oath that they have not be n op >ned in transit.
Exe<'utions. An execution may be issued upon a Judgment at
any time uutil the collection of it i ' barred by the statute of limitation', but no execntion shnll be i -sued on any judgment, unlet:is
ordered by tb court, until after the e:s:µi ration of ten days from the
n ex cution con titute a lien on the µroperty
rendition tb reof.
of the debtor from the time it reache' the hrnd , of the proper
officer. E:s:C<'PI a., hereinafter stated, any execution upon a Judgment
may be replevined for three months at nuy time htfore a sale under
the snme, by tbe defenrtant giving to the officer nn obligation
(known a a replevin bond) payable 1o the plain ti tr, with good surety
for the amount thereof, including intere t and cost .

A jud~ment to enforce a lien can not be repkvined. No replevy
is allow,•d uµon a judgment a.!ait t any collecting; officer or attorney at law, or agent, fo:· a deliuqnency or default in executing or
ful.fllling the dutic8 or bis office or pace, or for foiling to pay over
money colkcted by him in such caµac·ty, nor agnin ta priuciµal by
his 1rety. nor upon a debt due by obligation baYing the force of a
judgment, nor npou a judgment f or spcdfic proper,y, or f r the
property or it value. Before n sale or land under an execution, the
officer sball CHnse it to be apprni~ed under onth by two disintere ted. 1ntelli~ent housekeepers of the county; and if the land so
sold does not bring two-third' or the vahrn1ion, the defendant an d
his repreecntatives sbnll hnYe the right to redeem the same within a
year from the day of s:.ile, by paying the purchaser or his representatives the ori~mal purcllase mon ey and ten per cent um p r
annum intcre ~t thereon.
Exemptions. 'l'he following property i' exempt from e:s::ecution, itttHcbment, distres or fee bill, namely: 'l'wo work bea t , or
one work bC>astand 011c yoke of o:s::en, two plows and gear; one wagon
and set of geur, or cart or dray; t,Yo a:s::cs. three hoe~, one spade,
one ~hoYcl. t,wo co ws nnd calves, beds, bedding and furniture uflicient for family u e; one loom and spinuiug " ·bcel nod pair of
card'; all toe . . pnn yarn and maunf ,ctnred clo1h manufactured by
the family ueces 11ry for family use; carpeting for all family room
in n : one table; all books not to exceed $50 in value; two addles and their appendage ; two b1 idl 1s: six cl.tails. or so many a '
1hnll not exc8ed $10 in Yaine; one cradle; all 1he poultry on band;
ten he.ad of sbe,·p, not to exceed $Q5 in value: all wenring aµpanl,
sufficient provi'iom,, including bread:,toff and anirnnl food, ro t:-UStaiu the family ftiroue year. 1f not on hand, other iiersonal property,
wnn·cs, money or o-ro wing crop, not to e:s:ceed $40 in v11lue fur each
Jllt'rnblr nf the family: provcuder suitabk for live stock, if there be
any :,nth stock, not 1o exceed $70 in Yalne, nnrl if such provender be
not on hand, such other property us ..,11a1l nor exreed snch um in
valne; all wa::-hing appuratns not to r:xcecd ..,50 in Ynluc: one
sewing machin . n,,d i-dl family portrait, nud picrures; one cooki1 g
stove and ap1wndngr""' , aud other cool-iug utew,il ' not to excee t iu
valnc $~3. rrhe t ool i- of a mechanic. not ex eeding $100 in Yalne.
are exempt. The libraries of ministers of the lYn~pel; the profc'sional l1l.muies of lawyers; the profes ' ional libraril:'S and i,, ~trum ents of physician ' !Ind 1:1urg 0111:1. not e:x:cPeding 5 0 i1. value, arc
exempt. 'l'he wug<.' not 10 cxct ~..:i $50 or all perau11 who work for
wages are exempt. except a to u.,._,bts contract d for food, raiment,
or hou 'e rent for the family.
In add tion to the per8ona1 property exempt from e:x:ecntion, etc.,
there is a homcEite d exemption of so mnch land, including the
dwell 111g hon1:1e and nppnrtenances owned hy the debtor as shall
not exceed in valne $1.0dO Thi:- exemption docs JJOt apply to debt
or Iii.I bilities wlJieh t'Xi:..l-ted prior to t be pnrclrn.:e of the land, or the
erection of th irnpro,·emc nt-- ther on. Only those per"on are
entitled to :x:emptionf. who baye families resident i11 thiEl commonwenltb. If the land exemp tion i' claimed, they mnst also be housekeepers.
Interest. The la1Yfnl rate ot interest is ix per centum per
annum, and contract for a greater rate are void a to the excess of
intere t.
Judgment . A j ndgment doe!s not coustitnte a lien on property iu this "' tate. A 11 jndgm >11 t except for rnalicions pro ' ecution,
libel, ~landn or iujnry 10 the per on, bear intereot from their dates.
(See E.1 ·ecuiio11s alld Limitations.)

Limitations. The follo,Yin g; are the periodEl within which
actions must be brought, the 1.ime commencing to run from the
accnml of the cansc of action. Fifteen y1 ars: Actions to recover
real property; actions npon jmlgme11t and written contract except negotiabl instrnm nti:i. . .,eren years: Actions by seu ior patente n,gninst jnnior patentees, who bave held po ~e'E-ion for l'le-ven
year . Fire yrars: Actions upon verbal contractR, upon a liability created by i:itatute; action' for tre µasst o real or personal property or for damao-c- for witbholdin!.'.· ':1rne; for tile specific recovery of pe·1-onal pr >perty; action ' upon negotiable in ' trnmen1s;
action upon account ' between nwrchantFi nnd actions for relief
T1co ywr8: Actions np u merchant '
from frand or mi rake.
year: Action for iujnry to p rson
On(>
old.
goods
fnr
account
or character, and for breach of vromise of mnniage.
1

Mardecl \Vom n. Durini; the life of the wife. the hn band
no Rtatc or intere t in hu· real prop >r ry. The r al estate

ha

of the wife i ~ not liable for any debt of the hu band, but is liablefor all of ber owu debt' Ctlntrncted before marriage, and for
-ucl.J. of them contracted after marriage as shall be for nece arie for herself or any memher of her family, and shall be
The husband is not
evidenced l>y a, writing signed by her
liable for the debts o the 1nfe cont, acted before marriage, except to
the amount or val ne of tile per onalty he m:1 y have received from her
by reason of the marriage, but he i-- l!able for nece 'aries furnished
to her lifter marriage. .M arried women may couvey 1eal estate by
joint deed with their bu b!lnds or by separate deed but in the latter ca-e the husband must previouely barn com·eyed. The conveyance mu t be ncknowl dged btfore rnme one er tbe officers
previou ly named (see ai.;J.:n,, wltdgments), and recorded in the office
of the Clerk of the Co mty Co11rt where the land lit:' . An acknowledgment before wituess swill not suffice. Hecordi11g is necl's ary
to give Yalid ity to the deed of a married " ·oman. As to other per-son8, recording is o,tly neceesary in order to make the deed valid
against creditors and pu chasers for value. 011 the joint petition of"
the husband Hnd wife, or on petition of the wife, tl!c husband being
made a party thereto, :filt-d iu the Circuit ourt in the l ·o unty of
her re idence, aud on sati fnctory evidence thnt the application is
not made with the intent to cheat, hinder, or delay the creditors of"
t,he husband, and that his creditors wiJl not be injured ihe court
may empO\Yer the wife to use, enjoy, ell or conv ~y, for her own
beuefit, any property she may ow11 or acquire, free from the claim
or debts o ~ her bu band· or to make contracts, 11e and be sued as
a single woman. or to trade in her own name: or to di--pose of her
property by wil] or deed . Any married womau \~ ho sball come to
tbi commonw ealth wi1hont her h1rband he re icliug elsewht•re,
may ncq 11ire proµerty, contrnct, and bring and defend actions as an.
unmarried womirn.
A mnrried woman mav make a "Talid will. She ma, HlFo make a.
mortgage to secme her own debt, but not tbat of her husband or
any other person.
1\Iortgagf> s. ~ o deed of trust or mortgage. conveying the legal
or qnitablc ti tle to r<.•al or p ersoua l estate s hall be valid agaimt a
pnrcl.rnser for a valuable consideration without notice thereof, or
agaiost creditor , un1 il such d , ed shall be ac.:knowl dgt'd 01 p1 oved
according to law, aud lodged for record. Any person frnudnleutlv
eelling, conceali1 ,g or ditapo, iu!r or any per'onal prope1 ty, on " ·b1ch
tbere is~ mortgaf!e of record with intent to pre\·ent tbe enforcement
of the hen thereon, or the foreclo nre of thP mortgage and dl ,e of"
the property, b11ll be deemed guilty of a misdemeauor. Liens, by
deed or mortgnge, mny b , di~cba:·ged by an entry acknowled~ing
·at1sfaction of the same on the margin of the record then·of, igned
by tlie person ent itled to same and attC' ted by the ckrk. The
release to be e:ffecth e nrnst be made by the pen,on shown by the
record to be the ilolder of the lien notes.
Notes anrl Bills ofE.xchang(>, All bill' of exchange are
negotiable, but notes are only made so when 'payable and negotiable at any bank incorporated uudn any law of this commonweHlth
or organized in tbi commonwealth nuder any law of the nited
States, whi ch shall be indors ed to and dLcomi"ted bv tbe bauk at
which the ~arne i' payable, or by any other of the ·bank in the
commonwea'. th a above specified. '
~on-_negotiable instruments are a signable o a to vest a right or
ac~1<;m rn tbe assign e, but a11y defen"e good aga n st the payee and
nnsrng before notice of tLc assignment is go d against the at'.signee
Indorser of non-negotiable note" can, n1y be ht"lc.1 after snit i,11d
return of·• no prop 'rty ag~1inst the maker commLnced and pro ... ecuted with dne diligence. \\bat L, '- due diligence" bas uot been
exactly determined: lmt a delay of ten days bas been held to relea...,e
·
the indor er from all liability.
P1:otest. _Protest should b e made upon the laE1t day of grace.
It 1s el' cnt1al to a r covery Bgain t indor rs on for ion bills or
n egotiablt notes placed in t lleir rank:, bnt ~111 i11lnr d billi:: is 11ot r qnired by law to be prote t d, nor i a certificate of a notary of such
protest evidence of it elf of di honor.
nits ar~ ~ommel?ced by :filing in the clerk's office of the
Suit.
proper con rt a pet1t10n sett mg forth the cause of action :md causinoa ~ummons or wm'lllng order to be i i:-ued thereon. Non-resident~
of the State are required to give .ecurity for costs.
tate. all
Taxation. All_ real and personal property in thi
and all
State.
thi
in
ding
re
person
to
belongrng
personalty
property of corporation 01 ganized under the laws of this State
are. subject to . taxati_on. J ersonal prop rty inc1udt.. s choi::< s in
action 1:1nd al] i~tnngible property. Corporations, in addition to
th~ tax upon their _property, must also pay a tax upou 1heir frnnch1 ~s, the Yalue of ,vh1ch 1s fi.:s::ed by a Board consisting of the
Auditor, Treu urer, and ecretary of tate. The followincr classes
of pi o_perty are e~empt fro~ taxa,tion: Public property, p111ceE1 of
worship, cernet ene . chantable m titutions. edncationul institution not conducted fur gain, public libraries an their endowment!:', pars_onnge and hon ebold goods to the value of $250.
A sessment 1s made as ot: September 15th of earh year. Taxe of
bank and t_1 ust corn pf mes aFe due July 1st those of other cor:poratlons thuty ~n,y s after notice. For non-payment a fine of $50
1, asse :-e~1, a!19 mterest rim at the rate of 10 per cent. per annum.
Taxes of md1Y1dnal' are due l\I·nch 1st. after which time they may
be collected by distre on good1:1 and cbnttels. After July 1:-t real
estate may be old. aud 8;fte~· !S'ovember 1st a pennlty· of O per
cent. on the fa~r C?f the bill ,~ added. Property sold mAy be redeemed by payrng mterest at 1he rate of 30 per cent. per annum
and a p nalty of 15 per cent. on the tax.
Wills. Any pe!', on o_f sound rnin<l and over twenty-one Years of
age may make ~l Wlll. Wills must be in \\Titino- with the name of the
test1~tor _sub:cnbed the1eto e~the~· by _him elf ~r by ome other p ron m Ju .. p1 e._enc an_d °?Y his dire ·t10n. If not \Yholly writ ten bv
the teRtator th 1' ~nb" npt10n must be made or the will arlrnow1edo-ed
by ~he te~tat_or 111 the prt'sence of l\\'O witnesses who shall -ubsctibe
tl1 ~11' names 111 the pr sence of the te tator.

'l'?e ;Yi.11 of a person dorn!ciled ont of tlli . . tate is Yalitl a' to person_,1lt} 1f exerut:tl according to the law of the domicile· but to be
va_lld as to land\ it mn~t b e:secnt 'd as n'qnircd by th, 'the lnw of
th ·" tate.
Original from

UNIVERSITY OF WASHINGTON

600

~D

OllllIEROIAL LA ,rS-LO"CI IASA.

LODI IANA.

BANKL. G LAW.
(Revised by F. L. R[CHARD

ON,

Attorney at Law, New Orleans.)

There is no tate official examination. The State banks make
quarterly statements of their condition by publication. Since the
adoption of the constitution of 1879, banking corporations must
be organized under the general free banking laws adopted in
1855, amended in 189:.1 as hereufter stated. Savings, Deposit
and Tru t Companies provided for by act 150 of year 1888.
The number of persons organizing must exceed five. No special
acts of incorporation can be pas1-ed. There are no laws requiring
8avings banks to invest in any particular class of bonds. There
are seven banks in the city of New Orleans still doing busioess
under State charters-the Citizen's Bank, the Canal Bank, and
the People's, Bank of Commerce, Germania Savings, Metropolitan,
Traders. The others are National banks. By Act 95 of 189~, the
General Ranking Act of 1855 was amended as follows: 1. Period
of time rnu:-t be fixed in Act not to exceed 99 years. 2. Banks
can not bold real ee-tite for longer time tban five ye-ars, except such
as is necessary for the transaction of their bnsines~, or except that
held as a!!eut or trustee. 3. All managers and directors shall be
citizens of Louisiana. 4. Sare Deposits and rrru,.t Birnks with'111t
power to i ·ue bank notes, may be orgnnized under this law witb a
capital or $,)0,000 or more, of which capital at least $10,000 shall be
paid up bel'ore commencing bnsiness. Ct may he made a receiYer,
trustee, assignee or syndic, and execute trustc1 of every description. The capital stock 1:1.s paid in ~hall be I aken as 1-ecurity. Money
or other valuables depo~ited by marrit'd vvomen or minors may be
drawn out without tue authority of their husl>ands or tutors.

COMMERCIAL LAW.
The laws of this State are found in the Louisiana Civil Code,
Code of Practice, and Revised Statutes of the State, adopted in
1870, and legislative acts, and the Constitution, adopted in 1879-as
interpreted by the decisions of the Supreme Court of the State, published in its Law Reports from the 1st Martin's Reports in 1811,
to the 42d Annual Reports published in 1891, inclusive.
Acknowle<igments of deeds executed within the State maybe
made before a Notary Public, Parish Recorder or his deputy, in the
presence of two witnesses. These witnesses must be males over
14 years of age. In other States, before a Commissioner of Louisiana, or any ot:licer authorized to take depositions in the State
where he resides, but the official character of such officer m 1u~t
be properly verified. A Louisiana Commissioner may certify to
the official position of any public officer in the State for which
he is appointed. An account or claim can be proved by the exparte affidavit of creditor where there is no contest. No seal or
scroll of private individnalis is authorized or reqnired by the laws
of this State. When a married woman executes a deed with her
husband, she must be examined by the officer separate and apart
from her hue.band to ascertain if she acts unrler his coercion.
A dt>ed to b · authentic and to be admissible in a court of justice
without other proof of signature, mui--t be acknowledged and signed
before a Notary or Commissioner of Deeds in the following form:
"I, the nnder ·igned anthority, do certify that the above deed wus
signed and sub cribed to before me by said .............. ... .... in
the presence of said . ... ....
. ..... and .................. lawfnl
witnes es, male and over 14- years of age, who declares that he
signed the above, heinz a wal'e oft he contents, and is for the purposes
therein contained. In witness whereof I have hereunto set my
name and seal on this, the. . . day of ....... 189.
Signed ..... ... .
otary.
In other States the Notary must a,nnex a certificate of the Governor of the tate bowing hii::: appointment DA Notary.
Thi is not required of a Commissioner of D eeds for the State of
Louisiana.
A· igoments and In olvency. Under the State laws insolvent debtor may make surrender of property to creditors, or an involn utary surrender mny be forced by any creditor who shall have
is ueCi an execution which is returned unsatisfied. Surrender vests
all property of debtor in creditors, aud "top all legal proceedings
againi-t him. Debtor must file sworn clledules of assets and
liabllitie . Creditor elect a syndic at a meeting of creditors
before a otarv Public appointed for that purpo e, who gives
bontl and manages the e tn.te. l\fortga~e or privilege creditors
are not bound by the decision of the ma,1ority of the creditors if
they wi h to ell the property, but may a k for the sale of sufficient to pay the mortgage 01 privil ge debt. Debtor can only
obtain final di charge by con ent of a majority of creditors in
number and amount, and where di charge is not granted, debtor
can be forced to male a new ce ion, wben he can be shown to
have arquired property, but debt subseqnently contracted are
entitled to preference. Where a jury find the debtor guilty of
fraud, be i deprivrd of the benefit, of the in~olvent law , 11nd is
liable to impri ·onment. A debtor can not make a voluntee r extra
judicial a ignment of his property and obtain bis diRcharge without
the con ... ent of all of hi creditor .
o tinw limited for applying for
discharge. Respite-A d btor alle~in_g_ ihat he can_ nor, me_et his
obligation_R, but that he h_a as e suffi ·1ent ~o pav hr deb! ~n. ~ull
if given t11ne, may, _on _filing a s_chrdnle of hrs a e~ and h_ll b1ht~e ,
on hi ex-parte application, obtam a tay of proceedmg agam t h11n,
and call a meeting of hi creditor before a 1 otary. The vote of a
majority iu number and amount of the e may give him an exten ion
or time not to exceed three year . Creditors oppo. ing may require
security. If a re p1te i gra11ted by a maj rity of the reditore in
numl>er and amonnt. the d •btor i allowed t, keep and di~pOP<' of
Iii property a . he pl •a,e , and the only coni-: ·q 1e11ce of hi failur

to pay his in tallment upon ~is debt is that il~solvency en_ ues and
he surrenders whvt is left. 1f any, to a syndic. A crednor may
protect himeelf by a wrrt of sequei::tra1ion or attachment.
Attachment. ,-rrits of attachment i sue on application of
creditor, under oath, when the debtor re ides out ot the tate;
when he conceals him elf to avoid being cited; when he ha mortgaged, as igned or di posed of, or is about to mortgage, assign, or
dispose of his prope!rty, rights, or credit , or ome part thereof,
with intent to defraud his creditor or give an unfafr preference to
some of them; and when be has convert eel, or i about to convert,
his property into money or evidences of debt with intent _to place
it beyond the reach of his creditors, or, if debt _not due, 1 abc_mt
to remove his property out of the tate. Creditor mu t furmsh
bond equal to the amount claimed to bf' due, with at least one
solvent surety, resirling within the juri diction of the court, ~onditioned for payment to any party injured by is nance of wnt of
all damages sustained by him in caFe it is decided that _the attachment was wrongfully obtained. Arrest of the debtor 1s allowed,
but is or little practical value, as it only secure the per on oJ
the debtor to answer the snit. and he can not be held for the payment of the debt. Corporations may be suerl in place where damage or trespnss is done, before magistrate's court, when the damage
is not over $100. [Act No. 7, 18 .] Garni hmcnt may be had as
an accessory either to a writ of attachment or tteri ractas.
Corporations. fitotntory Prorisions. (Jnder the genernl law
of this t,tate. any number of pcn-ons, exceediug six, nrny form
themselves into corporations for literary, scientific, religious, and
ch·1rit1:1 ble purpm::es; for works of public impro,,ement, and ~enerally all worl-:s of public utility nnrl advantage; and any nnrnoer of
persons, not lt'SS thim three . may form LhemselveR iuto a corporation
for the purpose of carrying on mechanical, mini11~, or ~u11111_1'act_uring bu -inc~s, except dhitill mg or ma11uf1:1ctur111g rnt< 1x1c1-1tmg
liquors, wi1h a caµital uot less than $5,000 or more than $1.000,noo;
and any number of persons, uot less t han twenty-fivP, mav form
tht"'mselves into a corpo1 ation for athletic, military, gnn prnctice, or
social purposes. Any number of persons, not l ~s than thr e, may
form themi:-e lve8 iuto a corporation on complying " ·ith the aen<>ral
corporation laws, for the p11rpos_e of cnr_rying on :111y lawftD bu iness or enterp rise not oth1·rw1se specially provided for, excPpt
stock-jobbing. Tbe Legislatnre can not pas~ a Ppecial act conferring corporate powers.-Constitution 18:9, Art. XLVI. 'J'he genernl laws under which corporations are formed are subject to
alteration, amendment, and repeal.
All clas8es of foreign msnrance corporati ons may trans,1ct bmnness in this State. A deposit of $:25,000 is firt-t required. Tnis deposit mnst he made witn the Secret ,ry of State, l>nt if a similar
deposit has already been mane in any other State of tbt:> Uni, n, t9e
deposit is not reqnired. Thil-1 dc•poFit is requirf'd to bn made rn
raeh. See Act 1866, p. Hi. Bnt if t-:ecnritiei-- are depo~iterl iu other
Stat sit will answer. Thf>y are depo 1ted with the tate Treasurer.
A ce1 tificate of authority to trm1s1:1ct bufineFs i iFs11ed h_v the ' ecretary of State. No license fre or tax ueed be paid before the certificate of authority will he iiasued. Full detailed annnal Ftatemcnts
are reqnirecl to he mude by ford gn in~nrance corporation . The e
J11. 11c;,t show any losses on the 1st of JanuHry of eacb y<'ar.
l',le cntiticate nf nuthority to tran~act bu in ss will be revoked
wben the foregoing provi~ions ,,re not complied with. All foreign
insurance corporation s mav hold red estate \\'herever and to whatever extent they choose. ·J\Iutual or assessnwnt corporatioJ?S will
be admitted 10 do h11 siues iu this Rtate when they comply with the
laws applicable to other classes of in1:1urance corporation s.
Courts. Terms and Jurisdiction. The courts of origina1 jurisdiction are: In parishes other than Orleans: (1) Justices'
Courts- Exclusive jurisdiction up to $50, and, concurrent with
the District Courts. between $50 and $100. (2) Dist, ict ConrtsConcurrent with Justices' Courts, betwePn $50 and $100; exclusiTe
for all civil matters over $100. and in all 1-1robate matters. B. In
Orleans Parish: (1) City Courts-Excl usive jui isdiction up to $100.
(2) Civil District Courts -Exclusive uver $100. Jni,.tices and City
Courts open at all times. In pariFhes other than Orleans, District
Courts have four terms in each parish. ln parish of Orleans, Civil
District Court sits all the year ronnd, by Act 111 of year 1 92.
Un amounts from $100 to $2.000, inclusive. un appeal may be
taken to the Court of Apµenls, and on errors of law alone on amounts
under $500, and on all amounts over $2.000, to the State Supreme
Court. An appeal lies on both law and fact .
Days of Grace. The days of pnblic rest, and 11') other . . in thi
State: The firr-t and eighth of Ja11uary, t\\'enty-"econd of February,
Good Friday, Fourtb of July, fir::-t of' No\'embt'r, twenty-fifth of
December, Th nkflgivi, gs Vay 1\fardi Gra . nnd the twenty fifth of
Novem bc·r, known 11,i,; Lnbor Day. alHl in cit.ie with a pop11lation
exc eding 100,000 a Satmclay half holiday. Commercialpaper falling due on these days is payal>le the day followrng.-Act Jnly 7, 1 92.
Execution. Property taken under a writ of fierz tacias must
be advertised and appraised, and can not be old for le s than twothirds of the appraised value, until it has been re-advertised. Advertisem<'nts of movablP for ten days-oi real e tate for thirty. If
two-third of appraised value is not bid. property must be re-adverti ed for fifteen days, and sold ou a crl'dit for twelve months for
whatever it will bring. There is no redemption of property sold
under execution or mortgage. No tay of execution is given except
on appeal, and execution may i sue at any time after the delay
for appealing suspen ively has xpired. Embezzlement punished
by imprisonment not exceeding even years. [Act 1 .]
Exem Iltions. To hea<i of family, real e tate if owned and occupied as a re s idence, together with certain furniture, stock, implements, provi ions, etc.; the property not to exceed $2,l)()(J, and no
exemption if wife bas separate property woetb over $2,000. Widow
surviving is entitled to $1,000 ont of deceased husband's estate, if
in nece1:1 itou circumstances, by preference over even a firstmortgage creditor.
Int er st.. Legal rate is five per cent., but eight per cent. may
be agreed upon. If higher than eight per cent. is charged, such
charge forfeits entire intere t. If paid. it may be sued for and
recovered within twelve months. But a higher rate may be recovered if included in the principal of the note.
Judgments recorded in the office of the Parish Recorder become
mortgag s from date Vr~f:Vafcf.rdfflon ail real estate of the debtor

UNIVERSITY OF WASHINGTON

B NI{I G

ND co:MMERCIA L LA WS-:MAINE .

.and may be thus r corded in any parish wh re debtor owns real
estate. They are valid for ten years, when they must be renewed.
Limitations to nits. Prescription-Ac counts stated and acknowledged in writini are pre'cribed only by ten year . [Act
of 1 .] Per onal actions one year: Action for torts of all kinds;
for injury to or non-delivery of merchundise shipped on ve-:sels;
for fees of jn tice, nota,ry or constnble; for innkeep rs' accounts;
for account of retailers of liquors; for wages of laborers or ailors;
for frch;bt 11nd for tuition by month. Three years: Action for
.arreur::i.g;es of rent churges, or hire of movables or immovables
for mooey lent; for suiaries of overseers, clerks, or tuition by
,quai tor or year; for fees of physicians, apothecaries, uttomeys,
sheriffs, cl rks and record rs; on open accounts of merchants,
whether whole ule or retail, and otbers. Fonr years: Actions
·by minors again t th ir tutors, counting four years fr(i)m majority. Five years : Action on bill of exchange or promissory
notes, countin<Y from maturity, and for nullity of contracts or wills:
for recision of partitions; to set aE1ide public and judicial sales for
informulities. Ten years: All other actions; the right to a usufruct
or servitude; all judgments, v,rhether rendered within or without
the State, but judgments may be revived before lapse of ten years,
..and are then good forte,, years frnm date of re\'ival. Real actionsTen years: Where possessor holds in good faith, and under an apparently good title, his title is perfect by ten years' pos ession.
Thirty years: Possessor, whether in good or bad faith, even without title, acquires title by thirty years' po ession. Renunciation
,of an acquired prescription can be proved only by writing, si<Yned
by debtor, or his agent; interruption, if debtor living, may be
proved by parole, bnt if he be dead, must be proved by signed
writing. A sale of real estate may be rescinded for non-payment of
the price within ten years after the last payment becomes due.
Prescription does not run against minors or persons under interdiction. Husbund and wife can not prescribe against each other.
~larried Women. Separate property of wife may b e controlled
by her; revenues of all eparate property ndrninii>tered by the
·husband, and all property acquired by either husband or wife after
marriage con titute part of community, unle s bought with the
separate means of either and as a separate 9,cqnisition. A married
woman can not sue without the concurrence of ber hu band or the
..authorhmtion of the Court, and she can not bind herself or her
property for hiEI debts. Wife has no dower in her husband's real
estate. Tbe wife can have no claim upon tbe property of the husband to tbe prejudice of third parties, unless recorded. Where
one of the spouses i agent for the other. be or she may be witness
!or the other in a m ·1tter connected with that transaction. After
,dissolntion of marriage by death tile survivor i entitled to one-l1alf
of all property remaining after payment of debts. acq_nired during
marria.g e, and the usnfruct of the other hal!, unless this half is disposed of by will of deceased spouse.
M01·tg-age-s can be foreclo ed at any time after maturity of the
debt by inst itnting a regular suit and obttiining judo-ment thereon,
or, if the act imports a confession of judgment in favor of the
holder, he can app1y to the comt for a.n order directing the Sheriff
to seize and sell the property. All mortgages mu t be recorded
before they can baYe any effect as against third parties. Trust
deeds are not legal, and chattel mortgages are unknown to the
laws of Louisiana. There i~ no redemption of property sold under
mortgnge. All tacit mortgages have been aboli hed flince 1870.
In making sales or givin&' a mortgage upon his property. it is not
necessary for tbe husbana to obtain the i;iignature of the wife. A
mortgage resultin~ from recording a judgment can not have that
effect until tifter aajonrnment of Court. [Act 1 .] Lien for labor
on lorrs granted by act of 1 90. Pri1vilege on crop-- to be recorded
(act of 1890). 'l'he vender of an agricultnral pro 1 nct of the United
tate has a five da? ' privilege for 11npaid purchase price in preference to all other
All other privileges can be enforced against
the article upon which it bears while in the hands of the person who
created them, but can not be enforced agaim,t third holders of the
property,
Notaries Public. :Must give bond for $10,000, in New Orleans,
and number limited to 100; bond to be renewed every five years.
[Acts of 1 90 .J
Railroadf'I not permitted to charge more than three cents per mile.
[Act of 18~0.]
Notes and Bills of Exchange. The laws of the State of Louisiana, in relation to commercial paper, as well as most other commercial matters, are taken from the Enili:-h common law. Smith's
Commercial Law, Biles, Edwards ana Par ons are th e standard
authors upon the subject. Co mmercial paper may be denned to
be the written evidence of a debt transferable by delivery. It may
be a bill of exchange or promissory note. The promissory note
is a written promi e to pay a certain sum of money, at a future
time, unconditionally. It is not necessary to state the place of
payment. or that it be made payable at a bank, or at any fixed place
of payment in the State. If no place is named, it will be presumed t o be payable at the place wbere it is made. If none is
stated, then at the domicile of the maker. Three days' grace are
allowed upon bills of exchange and notes, or other obligation' made
negotiable by law, but no grace is allowed on sight bills or orders
for money on demand. All negotiable instruments are dne and
payable on the day following the th ird day ot ~race, when the third
1s Sunday or legal holiday, and if thi day oe a Sunday or legal
holiday, then snch inRtrum nts are due and payable on the following day, not a Sunday or legal holiday. Whenever a pr<1miRsory note is indorsed for the benefit of the maker thereof, if
caused by the maker to be discounted in any bank in operation
within the tate, or if the maker obtain any money in consideration of Raid note from any person. the indorser sball be bonnd to
the holders of the note as if it had been discounted or negotiated
for his own use or b nefit. Bill and notes, or other obligations
for the payment of money, to be evidence of a debt., must express
the whole sum in wdting. 'l'he cent may be in figures. Days of
public re tare January 1, January 8, February 22, March 4 (i n New
Orlean ), July 4, December 25, Sundays, Good Friday and hrove
Tue day (in N w Orleans) . An admini trator appointed by
anotber State Court can not sue here upon a claim due the deceased. In all ca e the succession must be regulc1rly open in tbis
State, and the administrator qualified here before he can take any
legal proceedings. '11 he heirs or a deceased creditor may, however,

a

601

bring the uit in a court of this State. The death of the drawer
of a check before payment does not revoke its payment. [Gordon
& Gornilla, case 34, 60-1.]
uits. Actions are commenced by petition setting forth ~au~e
of action etc. and signed by plaintiff or his attorney. Plamtiff
must, in 'Orle~ns, if required, give resident secyrity for costs of
court; in other parishes, must ma)rn a deposit to co,:er costs.
Full names and residences of parties shonld be supphed. All
testimony must be taken contradictorily after notification to the
oppo~ite party, but may be taken out of Conrt and reduced to
writing by con8ent of all pnrties. Administrators, etc .. may sell
bonds and stocks at private sale upon order of Court to that effect.
In case of minors family meeting nece sary. (Acts of 1 90.)
Taxes. The Collector is reqnired to give ten days' public no~ice
of his readiness to receive taxes, and afte r ten days from the e~p1ration of such notice, must give ,.,,ritten notice to each rE:s1d~nt
delinquent; non-resident delinquents are notified by pt~blicl:!-n~n
in parish paper. If taxes 0 11 movable property are not paid w1thm
ten days more, Collector may seize nnd sell property, after t'.venty
days' advertisement. Taxes on real e8tate can not be entol'ced
until the expiration of tbe year for which they are levied a,ncl after
legal notices to delinquents and advertisement. Lands ~old for
taxes are redeemable within one year, by the owner, his agent
or heirs 1 or any creditor, on payment of the p1uchase mon~y,
with 20 per cent. interest and costs, and all s ubsequent taxes paid.
Lands sold for taxes due prior to 1880 are not redeemable. ::,tare
taxes are six mills on the dollar, and µarisb taxe~ not exceeding
ten mills; City of New Orleans tax 2.02 per cent.
otice mnst be
given of s11le for taxes, which ~hall not be by publication (constitutional prnvii:-ion ).
Succecsion. Donation can not exceed two-thirds if the donor
leaves at llis death a legitimate child, one-half if he leaves two, and
one-third if he leaves three or a grenter number. Tbe wife has no
dower right, but is entitled to one-half of the community estate,
after payment of debts. If 8he i left penniless she may claim the
marital fourth.
Warehouses. A certificate from Clerk of Court necessary before transaction of bu iness by public warehouseman. Transl'er of
warehouse receipt,; transfers property which it represents. [Act 1888.)
Wills. Tbereare four different kinds of will , viz.: The olograpbic, nuncupative by public act, nuncnpative by private act,
and my tic ( or sen led) will.

MAINE.
BANKING LAW.
(Revised by RICHARD ·WEBB, Attorney at Law, Portland.)
Discount and savings banks created only by pecial charter;
subject to examination bv the Bank Examiner, who may, at any
time, call for statements and make exam nation; rn ay institute
proc~eding to wind up; makes an annual report to the Governor
and Council. Cnpital -tock of di ' count banks mu~t be paid, onehalf in six months and one -balf in twelve mouths from the date of
charter; they can not go into operation until one-half of the stock
has been pai<l in; can not circulate bills in excess of fif ty per cent
of their capital stock without one dollar in specie for every three
dollars of such excess; nor, at any time, more than capital stock
paid in and specie on hand; must keep five per cent of the capital
stock in spt>cie reserve; must not owe more than twice the amount
of the capital stock, aside from deposit . Directors incnrring
illegal debts or illegally impairing capital are liable therefor.
Stockholders are liable for an 1-1dditional sum eqnal to the am<>unt
of stock. Officer are, pre'ident, directors, and cashier. Report
to Exam in rs wh en req nired; tax of ½ per cent on capital if
issuing bills. No bills to issne by persons or foreign bank~.
Savings banks have president, vice-president, treasurer and as~istant treas urer, when trustees so determine, and not less than
five trustees, not more than two of whom shall be directors in
any one National hank; they shall not nct a:'I guardians or administ rators, nor shall any banking company; no loan to be
made to any officer or his firm; pay di videndi- from pro tits not exceeding 2t/2 per cent. semi-annnall.v; may lrnve deposits f'ICaled
when insolvent without fanlt of officers. Deposits by married
women and minors are their property and may be rf\covered by
them. ~pecial provisions as to in vestments. Report annually
to Examrner; tax of 7a per cent. on franchises. No constitt1tional
provisions relating to eitber.

COMMERCIAL LAW.
Ackuowleclg1 nent. Deeds of real e tate mnst be sealed; witneRS nsual but not necessary; recorded to be goon ao-ainst third
parties without notice; to be recordf'd mn t be acknowlecl<Yed by
onl" granrc•r; wi thin the State befol'e a Justice of the Peace O ot.ary
Pnblic, or woman an pointed therefor: in other Stn tes and Territories, before a Magi trate,
otary Publ ic, ,Tustice of the Peace or
Commis"ioner of De di,, for this St.ate: in foreign conntrie before a
Notary Public, United States Mi oister or Consul· clerk's cert.ificate
of capacity of official out or the State is recomm~nded.
Actions. At law b egun by writ. under common law practice
but ~<>?,taining decl_ar~tion. Service on inrtividnal , 14 dayR (hefor~
M:nmc1pal and Jn--t1ce s Con rt. 7 da,v1:s) and on corporations :30 days,
before retnrn term. Retumable in any connty where either party
lives in this State;_ if ncitlwr party ljves here, in any county where
per onal property 1s attached; but m all trn tee pro es', in some
connty where one of' the trnstees resides: if properr.y attached and
no one to serve on in Stttte. or if service fail~oris defective without
fault, new service ordered by Conrt or Ju::1tice in vacation hefore or
after entry. No affidl¼'Lts. r~(l!Jir d for omm nce111ent of snit
Names (with full fir t rla'nlle9~a't18.f"flesiclence of all parties (including

UNIVERSITY OF WASHINGTON

602

BA KING A D COMMERCIA L LA w

partners) should be furni bed or corporate name of mcorporated
company. To attach real e .. 1ate, all original uot, s, comract , etc.,
or coµie", and itemized i;:tatementi:- of accounts and claims, or baluits in equity are begun
ance tated and agreed ui,on, i req11ired.
by bill of complaint, tiled with cle, k and sub~ cena i~ ' ned by him or
in erted in writ of attachment a1.d served by copy of bill and writ.

Arre t. ( ee Executions.) In actions ex delicto, on me ne proces and execution, a of course without affidat it or order; in

acti on tX con.tractu. on meern: proces upon affidavit of the creditor, bi agl nt or attorney, 1 bat be bas 1ea.::on to believe and does
beli eve that tbe debtor is about to depnrt and reside beyond the
limits d tbe tate and ca1ry wltb him means of bis own moie than
is necee ary for hi' immediate sup 1,ort, and t bat at least kn dollars
i due on tbe claim; on execution, only after supplementa1y proceedings and fraud proven. but if contract judgment or action
exi tiug April 16, 1887, arreet on execution. Debtor arre ted on
meEne 1,rocee or e:secution may dii::cl1 se: l'he up property not
ext mpt from attachment and be discbarged from arrest by Justices'
Court , or n ay gh e bond and dieclose accordiD!a ly to its terms (See
Jnsol'l'rnt Law). "O an est in actions ex cont ractu for less than
ten dollar , and none in civil actions of married women ..

Assignments.

(See Insolvent Law.)

Attachment. All property not exempt attachable on mesne
proces as of course wilbout affidavit; Fecurity for co~ts only if
creditor is non-re1::-idt'nt; lien by att acbrnent sin the oriler in which
they are mude for thirty clays after judgment, (extend ed ·w here
exl cution is delayed, appeal from taxation of .costs is rnken, or
dech-ion of law court certified down in vacaOon) within which time
le, y may be made. Personal property may be avp1 aised and sold
on nws11e vroce8s to avoid expenr-e, dep1 eciation or las~. on request
of either J>arty and proceed8 held by officer in lieu of the property;
foreign attachment (gamisbment) lrno\\ n as trustee procees, at tacbes
proi,e1ty held by, or debt due f1om trustee, U1iless (1) due on
negotiable paper, (2) money collected 011 procees by officer. (3) in
hbnd s of J>ublic oftcer, (4) due on contiugency, (5) trustee liable to
execution, (6 ) $QO, for persomil labor of tbe debtor, wife or minor
child within 1 n.mith in action not for necesF-aries. Equi1able
trnr:-tee proceFs where prope1 ty cannot be reached by process at
law; not exempt and for p1 operty conveyed in fraud of creditors,
and property secreted rn that it is not repleviable.
Supreme Judicial
Terms and Civil Ji,ri.'ldiction.
Courts.
Court: 2 or 3 terms a year in each couuty; unlimited jnrisdiction
exct>pt as Fpecified below; fulljunediction i11 eqrnty; appellate jurisdiction in bane on questions of law, from trial terms and Superior
Courts. Superior Courts: in Cumberland conuty except equity,
div orce, real acti01~ s, extraordinary legal remedi es and so 11 e (lthers,
exclusive jmi8diction to $500, concurrent jmisdiction above that
eum; eits fin-t T11esch1y of every month except June, July and
Au gust. Rem ebec county; e:xclusive j nrisdiction, with exceptions
to $500 co11cmTent in habeas cm pus and dh orce; sits first Tuesday
of April. Septfmber and Dt·cemb(:r at Augns1a: E,econd Tuesday of
Jun e and .November at Waterville. Courts of Probate: neual jurisdiction of probate matters: full jurisdiction in insolvency (q. v.).
Municipal Courts and Tiial Justices: exdusive juriFd1ction of
forcible entry and detainer and in otber caEeE< np to $20; in some
places concurn·nt jurh-diction of l1:1rger amounts; appeals 10 Sup erior Comt " ·here established, and elsewhere to Supreme Judicial
Court.
Estates of Deceased Partners. SnrviYor to exhibit partnershi}) JJropcrty to exl:'C;U tor or admh1h-trator of deceai:- ed "ho shall
inc ude it in inrnntory, have appraisal made, l\ut cany out only the
inter est of deceased. Survivor may give bond; administer partnership estate, pay debts and e"Xpenses and pay over the 8bare of
deceaFed partucr to his legal representative. lf be does not, then
the administrator mu t gh e such bond a1Jd administer and may llfle
sarvivon:. 1rnrne t o collect the debts. Assets real and persoual of
tbe pmtneffhip may be solcl, commiesio11erE< on exorbitant claims
!lpi ointed as in es tates of individuale; and if partnership estate
in suftic1t-nt to pay debts it may be represented iDl"O vent and administered ns other insolvent esrnteF, but this shall bar the recovery of
any balance f1 om survivor or eFtate of a deceased pnrtner. Upon
death ofpe1son so givirg bond before completing adminh:tra1ion,
an administrator of the partner hip may be avpointed to complete it.

Estates of Ueceased PeTso11s. Administered in Probate
Comt with appeal to the 8npreme Judicial Comt as Supreme Court
of Probate. A dmini trator or execu tor to give baud unless executor
excu~ed in will; bave inventory and appraisal: pay debts and
charger< and distribute balMnce of person)-!] property according to
law or will of the teFtator; ·des of persunal property mnde upon
liceni-e; ale ' of real e tate wh<·n nece1ssary to pay debt s and charge~
and in some other cases, UJ)On licen::-:e, filing bond a11d taking oath.
All ov,·unce to widow and mi11or cbildr<·n, made by court from p ersonal eMtate. Act ion brought again t in one yc·ar after notice of
appointment to continu1 at plaintiff's exvense and burred by tender
with in year: if brought after without s1atute notice or written
dem nnd. to c011tiuue one tl rm and barred by tender pending con
tiuu ance, defendant recovering co t . Limitation o ft\\ o years after
notice of appoi n1m c11t. Non-re ident ex cntor or aclrninii-trator
mn fit appoint attorucy. 'I'ime of demand or 11otice extended for
ab. t11t creditor if fmther al"set. but prior payments not di tnrbed
o
tb reby. E:xami1 ·at io11 of anyone n peered of embezzlemeut.
admi11 ibtrntio11 granted aft<·r twenty yeart-l ; commi sioners may
be a1,poiutecl to dl'lerniine rluim deemed exorbitant in like manner
a i11 inf--olv<•11t Cf-:1atei--. Appenl to ' upreme Judicial Court ae
Supreme Court o f Pro hate H al ci-tatc ck cend ( 1) to children and
i i,.u or deceased children by r1µ,ht of representation; (2) if no
children, to al1 O"t-C'eudant1-< if in ,1rne degree equally, otherwise by
right of repre1-e11t•Jti011; t3J if 110 i . ne, to fat her and moth<-'r in eqnal
shart' ; (41 ii 110 sn ·h i i,me or fatber, one lrnlf to mother and oneten~, and the children or grand-children of
half to b1l,1tni- v11d
of rep re ( 111 ation ; (5) if no i ue, futher,
11gnt
uy
tho e decem,ed
brother, or 1-it-ter, to mother to exclm1ion of it-sue ol brothers and
si ter:--; (6) i I' 110 ucb ii-1:me. fHtuer, mot her brother, or iFter. to next
of kin in equal degree tho e claiming tbrongh nearer HnceFtor preferr ct; (7) "lien mi11or di •s unnrnrned, to oth<>r childr n of ame
parent and iHrne of thoi:;e dccen ' ed <'q nally if of equnl degre , otberwise by light of rep1 c. ei.tation; (8) if uo kindred, to hu band or
wife; (9) lacking that it Cl:'cheats to the tate.
1

-

IAI TE.

Per anal e tate Bfter payment of amount allowed to widow by
conrt or by law, debt , fnneral. and admini tration charges, distributed as real estate. except tba.t widow takes one-third; if no
is ue one-half, if no kindred the whole.
Jn"oll'ent. E ., tates are adj adged in olvent on re pre entation:
After payin _g e"Xpen es of fnneral and admiuLtration, are appropriated to (1) al1o\, auce ~ranted by court to widow, wictower or children,
(~) expen~e of last 1ck11ess, (;1) preftrence by Umted tate1:- laws,
(4 1 taxes and debts to State, (5) all other d bts. lf e tate will not
pay more than Fuch expern-es and the fir t four claes<' , no repreeentation of insolYency i nece,sary. Probate Court appoints two
commissionert1 to deter u ine claims, wbicb are to be preeented
within six month from appointment; time may be extend< d,
not exceeding eighteen montbi:- in all, or three months more
Claime presented in writing "' ith
where commissioner dies.
affidavit of claimant or person cognizant thereof st1:1ting "'ecurity and credit upou best kno"·ledge and belief; interest
allowed from death of testator unles otherwise proYided by
contract; securHy valued by comrni::-:sioners, and if either par~y
dissatisfied, by three disinterested per on selected by Judge; 1f
creditor refuses security at appraisal it goes to estate aud so much
is actdcd to his claim. Suits pending may be prosecuted to
determine amount. Contingent clnims proved and f'und rese, v<•d.
Appeal from commissioners by claimant, administrator or credito,
by writteu notice in probate< ffice within twenty days; c:rectitor or
heir appealing files bond for co ts; appellant, other tban claimant,
gives him notice of appeal within thirty days; appeal by anv
person determined by suit for money bad and received brought by
claimant within three months after CommiF>sionl'rS report, annexin g
or filing ecbedules or claim; claimants ornittiug to ghe notice of
prosecuting appeal by accident or mistake may nave leave to do o
on vetition to Supreme Judicial Con rt within t,Yo years after report;
where clarn1 allowed sml claimant bas omitted to bring suit upon
appeal of any other person by accident or mistake, he may have
leave on like petition; but in neither case after four year from
granting administration nor is any decree of distribution dis1mbed
thereby. Appealed claims arc deemed contingent. Judgment for
debt against administrator certified to Probate Court, execution
issues for costs which rn ay be allowed and paid from e tate unle s
admiuistrator appealed without reasonable cause. Claim not
presented or disallowed, barred; but 101 mer may be presented
against fmther assets, and latter allowed in set off only to amount
of com .ter claims by estate. Executor or administrntor mu .. t settle
account within six months after report. After thirty days from
report, Judge may order distribution. Account for payments made
pursuant thereto allowed without.
Execnt.ioni;1. After t,Yenty-four hours from rendition of judgme11t, retnrnable in three months, renewable within ten } ears after;
capias or arrest authorized (See Arrest and Man ·ied Womer,); no
stay except by order of Court for canse and one year agamst absent
defendants unl ess bond :filed; levied on real estate by apprait,al and
extent, also on real esta1 e and interrsts in the same and f1 auchises
by sale; money and, by consent, circulating notes applied direl tly .

Exem JltJons. Homesteads, $500, when dnly re~if::tercd; debtor's
apparel, necessary furniture for family, $100; bed and bedding for
each two pereous; family portraits. bibles, chool book s in u"e;
State statute:-; library , $150; regular pew; cook sto-,·e and iron
warming stoves; charcoal, twelve cords of wood, five ton anthracite coal. fifty bushels bituminous coal, $10 worth or lumber, wood,
or bark; produce of !arms till hnnested; barrel of flour, thirty
bushels of rnrn and grain, potatoes for famfly 01 e-half acre of flax
and manufactnres therefrom for family; tools of trade; 1.·,, 111g
machine $100; puir working cattle, or pair mules, or one or two
horses, either, $800; bay to k eep them; harn ess for each bon:e and
mule, $20; horse sled or ox sled, $20; domestic fowl, $50; two
swine, one cow and one beifl r, 1f no oxen, bor e or mnle. two cows;
ten sheep, their wool. their lambs until one year old; bay to keep
them and cattle; plow, cart, truck or express ,vagon, bnn ow, yoke
with bows. ring and staple, two cbaim, mowing machin e; fii:-hing
boat of two tons: debtor may elect if be bas more tban is exempt.
Insolvent Law applies to residents where debt is not lef!ls than
$300; is voluntary, and wl1ere one or more creditors holding onefourth of provable claims, involunt»ry; applies also to abeconding
debtors witbin six months; assignees electl'd subj. ·ct to approYal of
court, who dispose of property, pay expens<:s and divide asi-ets,
and may be authorized to carry on brn,inees; provi ion~ for discharge upon petition and final oath taken, within two ycnrs after
commencenwm of proceedings aud not after; di charl!e may
be opposed for (1) swearing- fal sely. (;2) concealing property. books
or pavers, ( 3) directly or indirectly preferring wit bin fonr months,
bavmg reasonable cau e to believe him 1f in olvent or co11templating in olvency, (4) cnn ing effec I to be attucbed, (5) destroying, altering, n111tilatin gor fol ifyin g any books, documents, papers,
writings or sccnritie~, making or being privy to fal se or frnncl11lent
entry to defnmd credit ors, or give prefrrence, (7) removing or allowing to be r emoved. with like rnt ent, m1y pruperty, ( ) making
fraudulent payment, transfrr, couveya11ce, or c1ssi!m111eut of
pro 11 erty, (9) lrnowi11g fali:;e. debt proY ed and not di 'Cln8iIH! it to
as iu:nee within thirty days , (10) being n merchant or trader and
not keeping proper books of acco1mt. Di scha: ge, if grant<-d, avoided
for earne cause:; wit bin two yenr:-1 by creditor 11ot kno,~ ing in
sea on to op])ose. Di 'Clrnrg 11ull and void if procured by money
or promi1:1e of future prelerence. One in 0 1vent 'ecoud time
rcqnires a _ ent of majority in n n n bers and val 11e of crcdi tors. nnd
a third time, tli- ent of three-fourth , lor d1ecllargP. 'ompo ition
upon co111:1 nt of majority ot creditor for over $50, a11d threetonrths of the value of all debt for a pc·rc 11tag •; creditor receivin~
more from debtor for a ent. , or a~ ·igning for more to one who will
cons<'nt forfeit to creditor onino.! all he rec •i vc : debt created
by fraud, embezzlement, d ~falcntion of public officer, or ,vhne
acting in nny fiduciary capacity, may be proved and rereive
dividends but are not discharged; on provable claim~ dne foreign
creditor or to be prrformed out or tate, no arre t after discharge.
Fr 1 udu lent conveyance void· pennltie ' for rniscondnct of insolvent
as igm~e, and mest-enger; proceedings are in Probate Court with dir ct app als in certain ca e · to the Sn pn•rne Judicial Court, and in
nperYiRion by bill in equity; dehtor owing leFs than
all other
$300, may make a cren ral dii-clo nre and be d1~char~ecl from arre t.
Applies to p1utner hip and corporation1s, except tho c of public
nature; no di cbarg()ttg~mfflll llioi:, or of liability, officers or stock-

UNIVERSITY OF WASHINGTON

BA KI G A D

O i IERCIAL LA \VS- .M t RYLA D.

holders; pr ference of all kind within four months and older
mort_!rngeH pr~,f rrin g, not record~•d, thr e months. avoided by
elect10I1 of assign e and ~rntute n,s1gom nt to him.
o as i(Ynment
law; a ignnwn ts for r ditor vnli I, as at common law b unless
avoided by proceeding' in iIPolvency.
'
Interest six per c nt. or rate agreed in writing; judgment , same
rate; account' and dvbt not on t1m bL•ar interest from de mand.
Spe iul rate in time notes does not continue after maturity unle s
so provid >d; nor after judgment in any case; no usury laws:
Judgment -. At law; bygen eralorder atendoftermonallca es
.vhe,t~ erdi~t or default, unles
rnyed by pruceeding for new
trial, ~:co ,turned for judgment by plaintiff; in eqnity. only by detr e 1g1,ed by Justice. No lien ex ept by Yirtue of attachment on
m sne pruce 's (q. v.) and where specially provided by law.
Limitation .,f Actions. Six years; debt on nn aled contract
or liabil1ty (except jnd!!ment ); actions upon judgment out of
State of Court not of r ord; for arrears of rent; as:5umpsit or ca -e
on contra<,~ or liability. xpres or implied; wa te; tre~pai-S qu. cl.
and _d. h. a ; c•i,-.e, except lunder and libel. Fonr years; again ' t
Sheriff. 'l'wo sears; aRsanltand battery. fal e impris,mment slander,
libel a11d penalty. One year; scape scire facias and on recognizance, igbteen n~onth . . ; stolrn bonds and coupons, except by owner,
twenty years; wnnessed notes, bank bills. peciaiities. real ncrion,
other Judgments aud nll otber per'onal action . "'nit becrun when
writ i made. Incapacity of plaintiff, death of eithe r pa~ty within
thirty dtiys before or after eApiration of time, fnwdn 1ent concealment of nc1ion, ub~ence from State when cause accrnes on residence
out of the State and abs nee aft,·rwards, extends time. Actions
barred where both parties livl'd, are barred ber
New promise
must be in writing or part payment. Against executor' and administrators, two years and one-bait unl ss furrher asRets or claim not
matured. Agninsr heir,-. or dev isees, one year aft, r claim nccrued;
remedy in qnity, if not prosecuted within time limited and if without culpable neglect
:Married \Vom.en lrnv same right and liabilities a to property,
contracts . and all :rnits as men . except bn"'baud mnst join in con
veyance of real et-tate con"eyed direc rly by bim to his wife; her
property not liable for his debts; not his llnble for her prior debts
nor for others made on b er creel it.
he may sue and 1.J, Rned as if
sole. Dower of third; onc-111111' if no issne irnd estate solYent. Husband bas sane in wife' ' solvent estate (See Arrest).
lUort •!a<:!es. Of real estate: executed and acknowleded as deeds:
convey fee with cond 1tiun of defent-ance; usuallysecme payment of
notes. ForecloRed without posse sioo by ~ervino- or mlYertisinonotice, or by possession obtained peaceably or b} consent or by
snit. Redemption in three years from 11otice or possession; mny be
limited to uot less tbau one year in mortgage; power of sale
morr gages, used, recoanized by con rt , but Lno statnte. Cbartel
mortgages to be good ngninst third parties recorded in Town lerk ' s
office where mortgagor re ides; or, if all parties non-resident wbere
prop~rty is situate~!; or possessi_on taken and reta hwd_, no 1-e.5:tin&
req 111red. Notes for over $-l0 for chattels old and title 1etamea
must contnin agreement therefor, and be r e orded as chattel
mortgnges; nch mortgages and note foreclosed by notice to
mortgagor or assigrn' of record, or, if out of 'ta te, by publication:
redemption in sixty days.
Notes and Kills. Three days of grace on bill , nnte , drafts
and order on time or sight and not on demand; two days if tbe
third i~ nnday, Fast. 'l'bank:::gi \'ing, Jmnrnry ht, F<'brnary ::2id,
May 30th. Jnly 4th,or bristmas : fonr days if the second ar'.d third
are ea h on on' of these da? , or if the second it- Rnnday and is one
of tbe In t four, or it the third day is the first Monday in Sept 111ber. On notes paynble at tlxed place on d mand at 01 after a time
certai n. no recovery unless demand proYed there before snit; ns ual
demand and notice to chnrge indorser; notarial protest pro, es ir;
but one indorsing note at inception before payee does it- a maker.
WaiYer or demand and notice, accept1m e of bill, ctrnrt or order
must be in writing and sig11cct. Recovery from indort-1er without
suing maker. Kate of damngc' on µrotesrc d bills of 100 or more
payable in this conntry one to nin per cent. according to place.
egotiable paper presumed to be taken in payment of debt or liability for which it is given.
Taxes. State taxes asses, cd by Board of rate A sessors to towns
on State valuation whicb i~ revised annually; connty taxe are granted by tbe legislature on thr e timate of county commissioners and by
them apportioned to towns. Stare connty and m n11icipal tiixes are
asse ed too- ther on poll,:, and renl prnperty sit nnted in town, and
personal property ownrd by inhubitants, not exempt upon valuation by the assesso1 who commit them to collector by warrant; 1118)' be collected b_y arrest. distress or snit. On reai estate
they are a li en; proceedin~s to enforce by Rale begin upon nonpaym nt for nine mon ths : uon-resident owrn•rs bt1Ye eighteen
mouths from sale to redeem by pnying t-lx, costs and twenty-five
per c nt interest from twelve months after commitment; residents.
two years after collector's return with twenty per cent interest afte1
ret urn. Land of non-re"ident' mn t l>e sold aft r, ightee11 and not
more than twenty montb from commitment; sale is of smallest
fractional part of interes t to one who will pay tn.x l:!s, inten·st and
costs therefor. ~ta te tax a se'sed by Board of Rtat' Asses ' ors on
gros"' recei pt of railroad~ and express companies, and on Yalne oJ
telegrnph and t elephone lines; collL'Ct d by snit. No tn:s: to corporatious on capitnl stock, except banks (q. v.)
tatc ta:x:e at 2½
per cent. col latera l inh critn n ce' al ove $.iOO.
SpPcial exceptions and exemptions from a s ssment, and special
proviRion i- for taxing personal property situated here but owned
out or the . tate.

MARYJ_J ND.
BA~ KING LA '\Y.
(R •vii:- cl by FIELDER C. SL1

GLUFF,

tty at Law, Baltimore.)

Prior to tb ' Act of 1 70, th, Stnte bank were incorpornt d by
spociul a t of th l gi ' 1111 ur '. Th
ct uf 18'i0 hap. 206,, is a

603,

general act, under which all bnnk mu t be incorporated. It provides that all bank8 incorporated under it ' provisions, if located in
Baltimore city, hnll have a capital stock of not le than $300.000,
and, if anywbereelt--e in the Star , of not les than $50 00ll. It fnrthe:r
provides: (1) Stockhold rs mnst own stock four rnontbs before
they cHn vote it for any p11rpot-e; (2) Directon, must ue stockholder~
and citizens of the :::Hate ; (3) no one can be dir ctor in two banksat the same time; (4) t ,t men ts mu t be made annually b y the-dire tors to tbe tockholder · (5) statements ot the condition of the
bank must be made to the Trea~nrer of tbe tate on tbe 1st of January and July in each y ar.
aid stu tern nts mu t be published in
the pap r of the city or county where tbe bank is, and must be
veriti cl by the affidavit of tbe pre ident or ca.bier; (6) the issu e of uotes is not to exceed tb capital stock paid in, and no note oi
less tban $5 to be is ued, nor of any amount intermediate between
$5 and $10 ; (7) the debts are at no time to exc ed the capital stock,
and the director are linble for su<:h e.x:ces ; ( ) if dividends are
declared which impair tbe cnpital stock, the directors are liable;.
(9) no director can be paid for bis services ; (10) a bank can bola
land for its irnmediate accommodation in its business, and sucb asmay come in payment of debts due, but must get rid of sucb land
as it acquires for debts, in three years ; (11 no loans must be made
to the ::,ta e or the United 'tate' to exc ed $50,000; (12) banks must
not pay out any fnnds or money other tban the legal currency of the
United Stares, notes issued by tbe authority of their charter, and
note~ i ~ued by otber banking incorporations receiYed at tbeir par
value by tbe banks so paying them out; (13) all State banks,
wh t her incorporated under tbe proYisions of this act or not, m ust
pay anunnl1y to th ' tate twenty cents on ev ry $100 of the is!'-ue ot
uotes then in actual circulation, which such bank may have lawfully
issu d, to be applied to tbe augmentation of the free school fund ot
the "tate . There is no system of official examination, other tha n
this tntements made to the tate Trt:'a urer.
18Kti . hap. 501, continues this act in force till January 1. Hl05.
There are no laws restricting Saving banks as to the class of bonds.
they may mvest in.

oinrERCIALiLAw.
A"knowledgtn.Pnts of conYeyances of any interest in real or
lea ehold prop "rty for above Eleven yeurb , may be made within th
State, and in the county or city in which th lund, or any pa.rt o.t
it li es, b fore a Notary Public, Jn~tice of rbe Peace, a Judge of tbe
Orpbnns' "'unrt, a J ndge of tbe ircnit Court of any county, or a.
Judge of the t\nperior Court, Court of Common Picas or Circuit
Court of Baltimore ity. If within the Stat , bnt out of th
county in which tbe estate conveyed lies, th ey mny b made before
a Jndge of any Circuit 'onrt for the circnit where tbe grantor m a y
be, or hefot e nny Jndge of t he Orphans' Court for the city or count
in which the gnmtor may he, ~ ota.ry Public, or a Justice of th
P ace: the official charact er of the Justi ce mn ' t be c rtifi d bv th
Clerk of the ircuit, onnty, or Superior Court (Baltimore CHy),
under bis official seal, or Judo-e of the Superior, Common Pleas or
Circuit Court, H grnntor be in Baltimore City. If withou r tb
tat , they mny ~ mn ~le before 11 Notary Public, a Judg of an.
Court of the Umtcd tates, or of any ::::\tnte or Territory Court
having a seal, or a ommi ionrr of Deeds for this State. 'l'be seal
of the offi er or court to b affixed to tbe certificate of acknowledgm nt in all cases. If acknowledged without the nited States,
the ackno~ledgrnent may be made before any Minister, Coni:-ul
G nrral. V1~e_or Con ulnr Ageut or Deputy, or a Notary Puhlic,
or a Comm1ss1011er to take acknowldegmentf< for State of M ,ryland. [Act of l e 2, l 'hap. ftLJ Ev ry deed conveyino- any intere t
in real estate, mn._t be signed and en1ed by the""grantor, aud
attested by at lenRt one witne s. A scroll eal i sufficient.
owords of iuheritauce are nee S!lary to create an e tate in fee simple
and no separnte ex!l.mination of a married woman i required.
t
As -i~n m e n ts and I n solvency. A debtor may be declared insolYent upon his own application or upon a petition tiled by one or
more creditort, the aggregate of who~e debt amount to the snm
of $250-nllegmg some of the cnu es specified in the statute (1 0
Ch. 29 , ec. 23). No preferences nre allowed except to emplnve~
fur wa~_es c_ontr_act_ed not more than_ three montbs anterior to deed
or app11cHtion m ml:lol vency. A d1sclrnrge releases the claims of
all creditors living in the State, but does not affect the clairnR or
non-resident credit~H·s npl e~s they are filed in the proceedings.
V:o1_untary deeds o1 ~1.ss1~m_ent f~H· th ben fit ol creditors, prov1drng for an equal d1stnbnt10n o1 the asRer~ amono tbe creditors
are n11id, but deed with preferences (except to e""mployes as al~
readv srnted), or exacting releases, ar Yoid in all cases if the debtor
is proc eded ao-ainst in in olvency within four months after the
recording of the deed; otherwise valid.
Attachm en t s for debt [See Act 1890, Cbap. 5-:1~] or for nuliquidated damages, sounding either in contracts or torts can be
obtained in all case when the defendant i a non-reside~t or ha
abscon?e~, atti~avit being first made hy the plaintiff to the correctn ss ol Ins clmm and tbe fact that the defendant is a non-re i.dent
or ha. ~bs onded. They may be also obtained in connection with
an ongllJnl process when the creditor or some one rn bis hehalf
shall giYe bond in donbl the amount of the debt, with sureti to
be approved by the Clerk, and make attidaYit b fore the Clerk of
tbe omtwherethesuit is brought that tbed ~fenduntis bona fide
ind bted to the plainti:ft in the snm claimed, and that the plaintiff
knows or, has good r ason to belie-ve that the d btor is about to
ab cond from the ~Hate, or that the defendant ba assioned disP?S d of or concealed. or is.about to assign, dh,pose of o; co1{c al,
h1' l_)l'OP rty, or some portion thereof, with int nt to defrnnd his
cre_d1tor~, or that t~e ~et ndant fraudul ently contracted the debt
?r rn nrred the obliqa_hon: or that the defend~mt has removed o:r
1 -~b~ut to r_ m9v 01 property, or S?me portion_ th reof, out of
thus tttt , with 11 tent to defraud creditor . A clmrnant mav have
the attach d propert~ relea ed by fili.ug a bond in douh·le th
amonn~ of the a _pp1:a1semen_t. Any kind of property or credit
helongmg to the defendant, rn the phlintiff's own hands or in th
hand::;: of any onE> e~se, and shares of stock in a corporation, may
be attached. Credit not due may be attach d, but wag 'S, hire or
salary nor due can not b tlttached, and th
um of one bundr d
dollars of such wages,1..9-ii: or salary, !:-hall always be exempt from
attachment. Impn Olfffi4!1ilitl:tf<!>~l'flebt i aboli h d.

UNIVERSITY OF WASHINGTON

604

B

KI G A D

01\I IER IAL LA W:-,-1\'[ARYL r D.

[Act 1886,
Defendant may be ued wherever he does bu ine
.
Ch. 456.]
In addition to attachment again t non-re idents or ab condmg
debtors for debt (i.e., a liquidated nm), a heretofore, attachments
mav now be i -ued against uch debtor in case urising from contract when the damages are unliqniclated , and in action for
wrongs independent of contract, but in such case no attachments
can be i ued until a declaration i :filed setting out e:pecially and
in detail the breach of the contract complained of or the tort
actually committed, verified by the affidavit of the plain~if:f or
some one in bi behalf aud until a bond shall be :filed sim1l1.1,r to
the bond required in attachments for fraud. (See Attachments ,
ante.) [Act of 188 , Ch. 507.J
Bill of Lading. warehouse, elevator and torage receipts,
and any vouchers acknowl1 dging the po se~sion of J[OOds_ as in
are made ncCTotiahle, uuless oth rwtse provided, rn the
torao-e
0
ame ense as bills ~>f exchan~e and promissory note~, and are
made coucJni;:ive evideu1 e in favor ot bona fide holder for -value,
that good ' therein de cribed we1:e actually received. ( See ~ct
1876, ch. 26t.) Penalties are provided for acts and frauds which
impair the value of the:"e securities.
Collaterals . The conver,ion by any banker, broker, merchant,
attorney or age11t of collaterals is made a misdemeanor . (See
Code, Art. 2i, ec. 93.)
The normal connition of all persons is one in which
0011 tracts.
thty are capable of making any contract. 1~he .four~b anrl Feventeenth $ections of the Sratute of Fnmds are m force 111 Maryland.
A citi.len can not make a contract with an alien t:'ncmy during the
continmrnce of ho-tillties; but aliens. n,,t enemies, may contract
and bold real µroperty as fully as citizens. The later cases decide
contracts of infants to be voidable and not void: and they are capable of ratification by iufants on arrival at age oft"' enty-one. 'l'be
contract , of infants for necesFaries are binding upon them. The
contract of a lunatic is voidable and not void. Tbe rules of the
common lnw o·overn the contracts of married women for the most
part. A wife '"'can convey her real property. provided her husband
j inR in the deed. Tbe statute providei,i that a married woman shall
hold the fruits uf her pen-011al lubor to her sole and separate use to
an unlimited amonnt, with power as afemmesole to invest.re-inv est,
sell, anddh1poseo f the same. All gambling contracts and contracts
made on Sunday are void.
Corporatio ns are organized under the authority of the General
Incorporatio1 1 Law. See Code, Art. 23 and ch. 134, Acts 181l0, ~s to
-clas~el'- of corp, ,rations that may be formed under ge~eral law, and
provisions co1.1cerning 1ormation of same. ('orporat10ni:; sha]J not
be c ea1ed by special act, except for municipal pnrpo.:es, and except
where there is no provision in the general law providing for c~eat!on
-0f corporation propose l to be formed. In such ca.:e:'l apphcat10n
must be made to the legislature.
Courts. Terms and Jurisdiction . The Circuit Courts in the
counties have jurisdiction at common law in cases involving more
than $50, and equity in all cases invo]vino- more than $20. They
hold from two to four regula1 terms in each county at which they
have a jury; there are, however, intermediate terms fixed bl t~e
rules, to which process may be made returnable. The CHcmt
Comt and Circuit Court No. 2 (a new Court created by the last
legi 'lature) of Baltimore City, have exclusive equity jurisdiction
in 1he city. The Superior Court, the Court of Com1?1o~ P_le~s a~d
Baltimore City Court have concurreut common law Junsdict10n m
ca es invoJyjng more than $100. The Court of Co1~111~on Pleas hi:s
exclusive jurie:diction iu insolvency, i:nd th~ Cnmt?al Col!-rt m
criminal caseB. The Orphans' Courts m Baltimore City and m the
countieti have probate jurisdiction. Justice's jurisdiction, $100.
The Common Law Courts have three terms in the year, and rule
dayF everyrnonth in tbey~ar, tow~ich process ma~be_retur nable.
The Equity Courts have Eslx terms rn the year, begmnmg the :first
Mondays of January, March, May, July, September and November.
Days of G1·ace, Three days after matL1rity allowed on all
bill and notes when not expres1::ly excluded, except tho$e payable
-0n demand a11d at ~igbt, wbethn the paper is negotiablP or not.
When the Courts are satisfied, by affidavit or
nepoAiti ns.
othcrwi e that there are material and rompetenr. witnesses residing
withouL the t1-1te, they will di1 ~ct that a cornmi~e:ion. h~ is~ucd to
take the te .. timony of 1mch w1tneF1-e . The Commiss10n ers are
selected by the Court, and must qualify b efore some 1,er~o!1 authorized to adminiFter an 011th in the State wbere they reflde. The
depositions, duly certified bv the Commi~sion ers, shall be a~mi_t1ed
as evidence at the trial of the can -e, suhJect to the same ohJ ections
and ex< CJJtion .. a the same te timony would be if the witness had
bc•n peri-onally prei;ient in conrt and_ there ~xamined. Partie have
tbe l'igbt to be pre--ent \Vben the te, t1mony_ i' taken n_nder the commit- ion and must r ce1 ve rea-onable notice of the time and place.
Examm;ttion i re tricted to the partie-1 and interrogatori es and
cro~ -interroo-ntor ies annexed to the commh. ion.
Execution s may issue and jadgment., may be renewed or
revived by scire facias at any ti.me _within twelve years from date
of judgment or from the exp1rat1on of any stay, and m~y b_e
therein levied on any property ot the defendant. In the C1rcu1t
Courts for tbe connt1e there 1s a stay until the :fir t Thnrsday of
the term succeedino- the rendition of the j 11dgment, provided the
juclgm ut is obtuin°ed at the s cond t_erm after the detend_ant is
summoned. 'T'here i no tay upon Jt1dgments rendered m the
court!:! of Baltimore 'ity or by Ju ticet1 of the Peace in the city or
conntie but execution may is ne forthwith. 'l'be defendant may
stay the' ex cution by uper_ eding with E<uretie for si_x month@.
Copy or docket entrie or Jndgment when re ·orcled m another
couuty make the jndgment, a lien there. (Act 1890, Ch. 314.l
o homestead law. Wearing apparel, book and
Exem ptiou .
tool (not kept for ale) and $100 of property in addition, ~re
exempt from execution, exc pt on jndgments for breach of promise
to marry and FlC'dnction, not applicable to any bnt actuu] 0011a fide
tate. Equitable intereBt in pen,onal property
resid •nis of tbi
can not he old under execution. but may b levied upon, und the
lien tbu acquired may be enforced in equity. Cho es in action
may be attach d.
Inter st. The legal rate of intere tis six per cent. per anm~m.
Judgment bear interest irom their dar . A per'on proved guilty
of usury forfeit the exce s over the real sum or value of the goods

inrn 1 76, where the
and chattelEt lent, and legal intere t thereon.
whole debt, including the u ury, i paid, the u urious mterest can
not be recovered back.
Judf;!ment s are lien for twelYe year from date of renditio_n <?n
any interest of the defendant in real or lea ebold I?roperty w1thrn
the county where rendered. They can _be trane:terred ~r?m one
county to another by sending an execution to _the benfl and. a
copy of the docket entries to the Clerk. The hen commence m
the county to which execution i i sued from the date of t~e entry
of the docket entries by the Clerk. Judgment are no~ 1_1 ,~ on
personal property until execution ha~ issued and the wn_t 1 !11 the
bands of the Sheriff. [ ee Act 1 90, Ch. 55 \ a· to examrnat10n of
judgment debtor8.]
Limitation s of Suit . Account and note are l>arred after
thi·ee years, sealed in1:-truments and ju~gmen~s after twelve year .
A verbal promise or acknowledgm ent will revive a debt barred by
the statute.
Married Womf'n, The property of a married woman,. real or
personal, acquired by her at any time ince 1860, remam ~er
separate estate and is not liable for the debts of her bu ·hand. Wife
must convey real or personal property by jomt deed with tbe husband, but may devi e the same by will as if she were sole. Where
husband is found a lunatic by mquisition she may convey property
he
as if she were femme sole. ~be may sne in her ow11 name.
may be sued on any int-:trument executed jointly witb her hn_i;:band
subsequent to April 1st, 1872, and on any contract made m the
prosecution of busineRs under a license to trade, or on a covenant
as lessee. A married woman can not enter into article of copartnership, and contracts made wirh a copartnership _ in which the1:e
is a married woman are not binding upon the partie . Hn1-band 1s
not now liable for debts of wife dum sola, but for such debts
husband and wife cim be sued and judgment obtained against the
wife. Widow is entitled to <lower in real estate and oue-third ot
the personal eRtate i1 there are children; one-half if none.
The property of wife is p·otected from debt' of_ hu:'!band, and
transfers of property from husband to wife ball be valid, unles' creditor1-1 of husbimd assert their claims within three years after uch
transf...-r.-[A ct 1892, Ch. 2ti7.J
Mortgages are executed, acknowledge d and recorded sa~e a8
deeds, and are not valid against creditors unle s recorded w1thm
six months. There must be an affidavit made by the mortgagee or
his agent at any time before recording, that the. cone:i_d~ration is
true and bona fide. If made by agent, he must,.m ad~it101;1, ~ake
oath that be is the agent of the mortgagee. ~ like affiduv1t 1s required to chattel mortgages, and absolute bills of _sale, both of
which must be recorded withm twenty days. The hen of a mortgage may. by ceasing to pay interest or any installment of the
principal for twenty years, be barred. They may be _for~clo ed at
any time after the debt becomes due and before the lien 1s barred.
Notes and Bills of Exchan!?e, Commercial paper is such
paper as is negotiable by the law merchant. It is not payable at any
particular place, unless so sp~dfi~d on its tace. Th_e maker of .a promissory note or the acceptor of a bill ot exch~nge w1ll !)e held liable to
an innocent holder who takes the same before maturity tor value and
in good faith, even though the note wa1:1 made or the bill acc.epted
without consideration . A bill of exchange, draft or prom1~sory
note purporting to be payable at sight or a.t presentation , is for
a]] p'urposes deemed payable on demand without grace. A seal t?
a promissory note makes it a single bill and therefore not negotiable. Legal holidays are: Chrhitmas, ew Year's day, F<>bruary
22, Good Friday, July 4, Decoration day, May 30, al l days of
general anrl congressiona l elections throughout the State alld any
day of public thanksgiving or hnmiliation and praye1· proclaimed
by the Governor or legit:1lature. Bills and notes mat.nrilig on such
day are payable on day preceding, unless that he Sunday, when they
are payable on the Saturday preceding. Notice of di honor to _be
given on day aftP-r the holiday, unless that be Snnday, when not1ce
to be given on succeeding_ Monday. When holiday fall o_n u?day,
paper maturing on followrng Monday. payable on preccclmg Saturday. Notice of di1:-bonor to be given on fo11owing 'l'ue-iday.
By Act 189~, Ch. 462, it Fhall be lflwfnl for bank' and bankers in
the city of Baltimore to clo e their doors for busine at 12 o' lock
noon on each and every Saturday in the year, and every S11turday
in the year, after 12 o'clock 110011, shall be a legal half-bollday, 80
far as rco-ard the preseuti ng for payment or acceptnncE', and the
prott'Stit~g and giving notice of the di honor of billl-1 of exchange
and other negotiable paper, and for these purpo:.:: ' hall be cnn . idered as the :firi;it duy of the week, cw :::,undny, and all negotiable
paper shall be deemed to be presentab,e on the secular day ne t
succeedin~.
Protest is usually rnn.de by Notary Public. Notary must keep
rc!!ister of prote t . A prote t of Notary Public i prim a facie
evidence of non-acceptan c or non-paymen t, and of the presentment of said note ror pllyment, or of aid bill for accept a nee or
pu.ymenr, at tbe time and in the manner tatecl in th' protc .. t, >rnd
1he prot "t fl hall al o be 7n·ima fad evidrnce that u h notice ha
bec'n sent or deliverld in tbe mannerther 'in ' tated. ( ee Note and
Bills of Exckar,ge.)
~uits. Actions are at common la\"T. Pleading have been imervice o1
plified, but form of actions r 'main as at common law.
writs mu t be made by the return day, which, in the countie , is the
first day 0f eneh term. and in Baltimore City of each rule day.
Tl1<' plaintiff in uny action at law (except ejeciment and replevin)
may claim a rnanclamu directing the defendant to do any act that
he may be bound to <lo, or forbidding him to do any act it may be
his duty to retrain from doing, either by contract or otherwise.
[Act~ 1 8, Ch. 456.7
'l'he defenclant in any action at law in which, if judg ment was
obtain d, he would he entitled to relief in equity again t uch judgment. may plead the facts which entitle him to such eqnitable
reli<'f by way of defcn e in uch uction at law. Tbe plaintiff in his
replication may, in r ply to such plea, a11ege i::uch fact as avoid the
pl a on equitable ground aud o on. [A<'tR 18 , Ch. 547.]
A conrt shall not refu e to i s n ' a mandamus or injunction on
the mere ground that the plaintiff ha a remedy at law, unless the
party again t whom the \\ rit is asked hull show to the Court,s
satisfaction that he ha the property from which the dama,zes can
be made or shall give a bond to p1.1,y uch damages. [Acts 1888,
Original from
Ch. 260.1

UNIVERSITY OF WASHINGTON

BA EI G AND

O~fMER lAL LA, V -~IAS A H

Taxes . 'rl1e ounty ..,om mi:s-: ionct·' of the 'cveral counties of
the ~tak, nnd the Muyor und City 'o nncil of BaWmore ...,ity ar'
direc t d to levy a tax annnnlly upon rcn l and p 'rsot1t.1l property
situated within th e Stnte, and no pcr ' on who i , not a s ~ ,ct to the
sum ot $10t1 ~hull be r 'q uired to pny any tnx: . In addition to th'
above tax the ~tat Legi ' lature, wit 11 the concurrmce of th e Governor, l'Cl!ulates th' ~tnte tax:for t11 next two years following the
m 'Ct H !! of Legislature, whil-h conYcncs ~ver_v t y\ o year . Tlle propcrtv oi'rcJirrious, clrnritabk, bcne1,·ol 'ut and cd nc::uional in tiLntion ' ,
and c mctcry comµanie " i1::1 ex mp t from tu.x:ation. In Baltimor l'iry
th' Mnyor aud ity Council luwc nnthority to exempt th' plant of
manufactniing industril' ' from taxation, tor the pnrpoi;:e of enconragcmeut of industrial enterprises.
ollectors may sell property to
compt'l payment of overJnc tnxei::, upon g iving du, noti ce of sale,
and complying witlt other requi ' ites of tatnte, and nny :µer ~on
interested in property may redeem wi t bin one year and a dny from
dnt , by tendering to coll 'ctor 1 h' whole amount r 'Ceived by colle ror f , om t5ftle, with intereRt to elute of tende r, nnd in default of
redcmµ1ion ti1le to property rc--ts in pnrdrnser. Taxes are ~onsid ercd in arn'ars on fir t day of J au nary next succeeding the date
of th 'ir l 'VY, and hear interest from that date.

MAS ACHUSETT S.
B.ANKING LAW.
(Revised by \V.M. E. L. DrLLA.WAY and H. 1\1. BURTON, Attorneys at
Law. Boston.)
In this State, safe depo it. loan and trust compauies are incorporated u, d r special act of the I gislatnre, and are governed by the provisions cot1ta111ed in the Acts or 1 88, h. 41a, and um ndments
thereto. Under the general law ten or more persous and their successor may form a corporatiou l'or the purpose of carrying on the
busines of banking. The General Court may, by special act,
annul or dissolve any such corporation; but its d1ssoln tion shall not
impair any remedy against the same for fotbility prenonsly incurred.
The capital stock of each bank shall not be le1::1s than $100,000 nor
more than $1,000,000. 'l'he stock s hall be paid in gold or silver
money, one-half before the hank goes into op~rntion, and the remainder within one year thereafter. Before commencing business
the president and directors shall make a certificate specifying
the corporate name, which shall be different from any previously
organized in the ommonwenlth; the location of sa id bank; the
amonnt and number of shares of its capital stock; name and
reside11ce, and nnmber of shares of each stockholder. and the time
when it is to go into opern tion; a copy of which certificate shall be
filed with the ecretary of the Commonwealth. No part of the
capital stock can be sold or transferred, until the whole nmount
thereof is paid np. No person can hold more than half the capital
stock exclusive of that held as security. In addition to the capital
stock' to which a bank i entitled, the Commonwealth may subf3Cribe thereto an amount not exceeding 50 per cent. of its authorized capital, when provision i~ made therefor by law. Said ommonweulth hall be ntitled to its proportionate share of profits and
dividends. Upon the vote of tbree-fourths of its stockholders, a
bank may increase it~ capital stock to an amount not exceeding
$1,0tl0,000. No bank shall have less than seven or more thun
twelve directors. 'l'he cashier is rcq nired to give bond in not less
than $:l0,000, with two or more snreties, before entering upon his
du tie~. 'l'he debts of a bank shall at no time exceed twice the
amount of capital stock pnid in exclusive of depo~its not bearing
int erest, nor shall there be due the bnnl- more than double the
amount of capital stock paid in. 1£very bank is required to keep
a reserve in lnwfnl money of the United 'tates, equal to 15 per
cent. of its liability for circulation and deposits. 'l'be circulating
notes held by the bnnk shall at all times be secured inf ull by public
stocks. which shall never be lest:1 in amonnt than $[)0,000. The property and effects of every bank 'hall be firi;:t applied to the redemption of it notes in circulation. 8tockholders of a bank 11re liable in
their individual capacity for the payment of ull the circulating notes
remainiug unpaid in proportion to the stocl- they respectiyely hold
when it stops payment.
Every bank doing business in Boston, except in the suburban
district , which form a part of Boston, shall on every Monday morning transmit to the i:5ccretary of the Commonwealth a statement,
under oath of the president or cashier, of the amount or capital
stock, a~ ets and liabilities of the bank, inclnding amount in the
Boston Clearing Ilonse, whi h statement ~hall be based npon the
condi1 ion of the bank on the day of the week next precedin~ said
Mouday. Monthly reports are required from every bank 111 the
State, not included in those above mentioned, to be made to the
Secretary of the ommonwealth These report ' are published m one
or more of the daily pnpers in Bostou on th Wedne day after same
have been received . Every bank is required to nrnk an anrnrnl report to the Secretary of the Commonwealth of the condition of its
affairs at 7 o'clock on any Saturday afternoon which the Governor
may direct, within fifteen clayB from the time dPsiguat ed, certified
by the cashi rand a, majority of th directors. Any committee ,lppointed by the Genern.l Court may examine into tlle affairs of any
bank, and t?hnll have free acce to its books and vnults.
ommh,sion r of Saving Banks shall , isii ouce in every year, and a' m ncb
oftener as they may deem exp di ut, 1111 such banks, and examine
all their affairs, and make such inquiries as m~y b nee s~nry to
a certain their condition, and make a report of such investigation to
the· General Conrt
Savings B anks in .Jiassackusetts can invest 70 per cent. of their
depo its in fir t mortgages on real state in this Commonwealth to
an amount not xceeding uO per c nt. or valuation of such real estate · in public fund of the Unit d State , of any of ew England' State1-1, or tat.es o1 New York, Pennl-ylvania, Ohio, Michigau,
Indiana, Illinois, \Vi con in, Iowa . and District of Columbia; flnd
in the authorized bond for municipal purpot1e and refunding
bonds is ued for other than municipal pnrµoses, of n.ny city of the
aforeE-1aid tat s which ha more than :30,000 inhabitants, and whose
n t indebt due does not exce d 5 per cent. of the val nation of taxable property, and in bond or notes of auy county or town in

ETT.

605

Mas~acbus tts wh o e net in debt dness does not exceed 5 per ce ,, t.
of valuation o'r of any coun ty or town of the Su~te of l\laine, N ~w
Hampshire Vermont, Rhode lsland or onnect1cut whose net rn debtedness'doe uot exceed 3 pn cent of valuation· in fir~t m01:tgag
bonds of any rail road company incorporated i:mder autho~1ty of
New England S rates, aocl whose road 1s lociited 111 whole or 111 par t
in the same and bas earned and paid regular <lividends for two year!Sl
next preceding such investment, on all its issue of c:tpital stock,
notwith tu Dding the road of such cornpaDy may be leased to ome·
other railroad company; or in first mortgage bonds gn~ranteed by
such railroad company; or in bonds and notes of any ra1lron d COD?-pany incorporated under laws of l\[assachusett , whose road 1
located wholly or in part therein, and is unincumhered by mortgaget
and bas pHid a dividend of 5 per cent. per annum for two year&
next preceding rnch investment; but 8treet Rail road ompany
shall not be con idered Railroad ompimy within meaning of thi&
statute. 'J'hey may invest in the notes oi any citizen of this btate
with a pledge as collateral of any of nforesaid secnrities, or secured
by hares of' capital stock of any of aforesaid.New Enghrnd railroads
incorporated and located as above, and has earned and paid regular
dividends of 5 per cent on its capital stock for :five years nex t preceding date of such note, or secured by stock of any bank incorporated under laws of this tate, or by stock of any trust company. or
safe deposit and trn t compauy, incorporated under laws of and
doing bn iness in this State. or by stock of any banking as ociation
incorporated under authority of United States and located in New
England ' tates. They may inveAt not more than 35 per ceut. of
deposits and income in stocks of any bank incorporated under
authority of Mast"achusetts or auy trust com pan r, or safe de:µosit
and trnst company, incorporated under laws of and doing business
in l\lassach usetts, or any banking association located in New
Englanrl and incorporntcd under Jaws of the United States,.
provided it shall not hold more than 3 per cent. of capital stock
of any one of such banks; also, in bonds and notes of incorpor,.ted
districts in Massachusetts; in bonds and notes of Fitchburg Railroad Company; in bonds and note of Boston &; Lowell Railroad:
in bonds of New York & New England Railroad ist-ued to pay for
certain terminal bonds in Boston; in certain :first mortgage bonds
of the Concord & Montreal Railroad; iu first mortgage lionds o
the Maine Central Railroad; in notes of depositors of the bank
secured by their deposit and book. They may invest in bonds
or personal securities with at least two sureties, if principal
anu sureties are all citizen of .l\IaRsachusetts, and reside therein.
Fhe per ceut of deposits, and not exceeding $200,000, may be inves ted in erecting a building for transnctiou of its bnsiness. They
may hold real e tate acquired hy foreclo ure or npon jndgmentFJ for
debts due them, but it must be sold within five years after tit.le vesti:a
in the corporation.
COl\IMERCIAL LAW.
Ackno \, ledgments and Deeds. Acknowledgmen ts may be
made before any JttRtice of the P ace <1r Notary Public in the State;
or before auy Jut-:tice of tlJe Pt•ace, l\Ingistrate. Norary Public, or
Commissioner appointed for that pnrpoAe by the )'overnor of this
. , tatc within the Urnted States or in auy foreign country; or before
a l\liniste1 or any Consular oflieer of the nited tntes in any
foreign country. \Yher e Acknowledgmen ts are taken out of th
State by a Justice of th' Pence, tbere should be appended acertificate of hiR appointment and authority made by Secretary of
State ur Clerk of a Co urt of Record. In Deeds where there ar
more than one grn ntor, the Acknowledgmen t of one of them is
sufficient. Deeds must be under seal, a scroll beino- iusuflicient.
No subscribing witness is necessary. R elease of dower must be
explicitly stated in deed, wife's joining in deed merely being insufficient.
Assig111neuts a,nd Insolvency. The insolvent. law is in many
respects similar to the United States bankrupt law, repealed in 1878,
and hi1s no jurisdiction over debts contracted outside the State
unless the same are proved in the insolvency proceedings. But an
assignment to trnstee to divide property among creditors can not
be avoided by attaching creditor and only by assignee in insolvency.
Any person owing $100 or more may obtain reliet; and any creditor
may apply ,vithin ninety days after commis ion of act of insolvency for seizure and distribution of e tate. Assignee is chosen
by majority in valne, and may be required to give bond. Proof of
debte. must be substantially accordmg to statute form, mere affidavit of indebtedne s not allowable. Original notes and bills of
exchange must be annexed to proof. Th oath may be made before
Justice of the Peace, Notary Public or Commissioner. Assent of
majority in numb rand value filed within six months from date of
assignment nece sary for discharge if as ets do not pay fifty per
cent. or more, otherwise di charge grnnted without a sent. Attachments made more than four months prior to first publication of
notice of issuing warrant in case of voluntary proceedings and
more than four month prior to first publication of notice of filing
petiti<?n _in involnntary p~·oceec.lings are. not dis~olved by nst:lignm_ent rn 11;1solvency. !'he msolvent ma_y til au offer of composition
with creditors, and will be confirmed 1f a sented to by a majority
in number and value of creditors, if it be for payment of not less
than fifty per cent., or if less tban fifty per cent., of three-fourths in
number and value.
Atta chrnent. All r al estate, o-oocts and chattels not exempt
may b taken in attachment on the orio-inal writ and held a~
security for jndgment, except that lands and tenements can not be
attached in snits involving }e 's than $20. No bond i required
to make an artachment. Shan· of stock in corporations organized
under laws of this State, or of Unit d 1ntes, may be attached b
S('nice on certain otlicers of th" co, µonttion. D 'btor may di olve
attachment by furnishing bond with snreties to pay judgment obtained or value of property n,ttached determined by apprais ment.
Upon affidavit by the creditor or some one in hi behaH, that he has
reason to believ that the debtor intends to leave the State and has
property not exempt from attachment which be do not intend to
apply to the payment of plniutiff'a clnim, the debtor may be
arrested and held to bail. Debtor ao-ninst whom jndgment is rend red for over $20 maybe subj cted to sworn examination tonching
hi property, and if he refu 'es to deliver up such property (not
b ing exempt from ~FfljllHll<rffi~ an order for nrrest will issue and

UNIVERSITY OF WASHINGTON

616

BA~KI G

D

O~IMERC IAL LAW -.i.'1I HIGA

he can then apply and be examined to take the poor dehtor's oatb.
Proceedings in in ,,1 \' ncy dis:--olYe attachments made ,dtbin four
ruonthE- of fir ·t publicatioi1.
Corporatio ns. 'I here i a general law under which corporation
may be 01 ganizecl to carry on any lawful businesi-, except, for 1rans.11.c110n in nal e tate, bt1nki.11g and in:rnrance. The busiue ~ of such
corporation i conducted by a Presictent, not less than three Director~, l'lerk, and Treasmer. Before commencing hnsines the I ntire
~apital mn ~t be paid in . in ca b or in property taken at a fttir Yaluaion satbfactory to CommLsione r of Corporation . A certificate
mu~t be tiled each year with the Secreta:·y cf State .. how ,ng the
eonrlit1on of the company. :-- alari ed ofticer "hall not Yote as 1,roxy
-0r attorney at a11y corporation meeting.
Foreign corporal ions doing bu ine~s in "l\fa~sachu etts must file
annual 8tatement ' ,rith the ommissioner of Corporations P-howing
their condition and appointing tue Commissione r of Corporations
it attorney, upon whom serYice of process may be made.
Cou1 ts. Tams and Jurisdiction . Trial Justices may severally
hold Courts withm the couuties for which they are appointed, and
hall have original juri diction, exclusive of the Superior Court;
and of !ill actions of contract, tort or replevin, where the debt or
damages demanded or value of the property alleged to be detained
-doe not exceed $100. Police and District Courts may in their
respective counties exercise t he same powers, shall have the same
juri diction, civil and crimin1:1l, and shall perform the same duties
and be subject to the same liabilities as 'frial Ju stices. 'l'he Supreme Judicial Court has original and concurrent jurisdiction with
the Superior Court, in actions for recovery of debt to the amount
of $4,000 or over in Suffolk county (Boston) and $1,000 or over in
the other counties of the State. Supel'ior Court has jurisdiction
where the amount claimed exceeds $20. Municipal Court of the
city of Boston has jurisdiction concnrrently with the Superior
-Oourt in the county of Suffolk, in actione where the debt does not
exceed $1,000, provided one or more of the defendants resides or
has his usual place of business in the city of Bo8ton. 'l'he other
Municipal, District, Police Courts and Trial Justices throughout
the State have, as a rule, concurrent jurisdiction up to $300.
Deposition s. The depo!3ition of a witnes~ without the State
may be taken under a cummi~sion issued to a person in any other
State or count.ry by the comt in which the case is pending, or it may
t>e t1-1ken by a Commission er appointed by tbe Goveruor for that
pnrpot:ie. Eve1 y deposition taken nnder a commisi-ion mui::t be
upon written interrogatori es, to be exbibited to the adverse party,
.and crost1-interrogato1 ies may be filed by him if neither par1y to
<the action shall attend. at the taking of the deposition or be represented by attorney.
Execution s can not issue until twenty-four hours after judgment rendered, and an original execution must be issued within one
_year after plaintiff is entitled to sue out the same. Executions
all courts are returnable within sixty days. There is no stay of
.execution except by special order of court.
Exemption s. Homestead, if recorded, to the value of $800.
Necessary wearing apparel of family, certain specified articles of
.h ousehold furniture, and ;h-300 worth in addition thereto; library,
.$50; tools and implements, $100; stock, $100; boats and fishing
tackle, etc., $100; one cow, six sheep, one swine and two tons of
hay, sewing machine, necessary wearing apparel. pew in church, etc.
Materials and stock designed and necessary for carrying on bis
trade and intended to be used or wrought therein, nut exceeding
.$100 in value.
Interest. Legal rate, six per cent., which is allowed on judgments. There are no usury laws, except on loans less than $1,000,
and any rate may be reserved or contracted for in writing, and
rate reserved in no Le is payable after maturity of note as before;
loans less than $1,000, flhall be discbargeabl e upon payment or ten-der of the sum actually borrowed and interest at rate of 18 per cent.
per annum, together with a sum for actnal expenses of making the
loan, not exceeding $5; all payments in excess of said rate shall
be ai,plied to discharge of the principal.
Judgment s may be entered within four days of default, but do
not constitute a lien upon realty or personalty of debtor not atitached on the original writ. Are not outlawed for twenty years.
Limitation of Suits. Contracts or liabilities, express or implied and nut undn seal, six yt->ars; real actiuns, those upon an
attested note, if suit is brought bv original payee or his executor
or administrato r, and personal actions on contracts not limited,
twenty years. Reviver: Part payment by the party sought to be
charged or new promi e to pay in writing. Absence from the State
prevents the running of tbe tatute of limitations as to a defendant
until he comes into the ~Hate. Tbe statute does not run againRt
nfant , married women during covertnre, insane persons, those
imprisoned and those absent from the State.
Married \VomPn. The real and per onal estate of a married
woman, acquired at a11y time, remains her sole nnd separate prol?-erty, not suhject to the control of her husband, nor liable for bis
-debts. Married women may carry on trade or bui:-iness, make
-contract , sue and be snecl, in all matters relating to their separate
,property, and nch contracts are not binding npon the husband.
Wife can not deprive ber hn band of more than half of her per11onal property by will, nor can she impair bis Int ere tin her real
,estate a~ tenant by the curte y without his written coneent, or of
her real e tate not exceeding $5,000 in value, and a life estate in
one-half of the balance, where 110 i ue nrvives her. Widow takes
dower a at common law, in one-third of ber hu band' real estate,
and if there be no i , u and hu~band dies inte tate, he tnkes
his real e tate, in fee, to an amount not exceeding $5,000 in value,
and a life e::,tate in one-half of the bnlance. lf hu band dieR intestate and leave no kindred, she take the whole of his real estate
in fee. Wife carrying on bu ine .. on own account must record
certificate witn 1ty or Town 'lerk; neglect to do thi renders
her property so employed liable for hu band's debt , and renders
husband liable for her d •bt thus contracted.
Mo rte-ages. l\fortgabes oow in common use contain a provision
authorizing a sale of premi e in ca e of a hr 'nch of any of the
co1 clition . Power of ale Mortgagt·s may be foreclor: d by a ale
in accordance with the prov 11-ior f' or t be power contained in I he
mortgage and an affidavit that the mortgagee ba complied with
the provi ions of the mortgage shall be recorded in the Reg1st ry of

:r.

Iortgage' may also oe
Deed within thirty day after tbe ale.
foreclo ed by entry and peaceable pose,- ion for three y urs, which
entry m ui-t he certified by two witue ~se . Pos e ' ion may also be
obtained by action at law.
Chattel mortgage ' mu t be recorded in the city or town where
the mortgagor resides, and al o in the city or towu in which he
principally transacts his busine s. 11 • orrgages rnm-t be recorded
within fifteen day of the date thereof, otherwi it i not valid as
to third parties, unless mortgagee is in po ses"ion.
Notes and Bills of Excl1ang·e. Commercial paper means negotiable pnper, uch as bills of exchange, promir:,sory notes and bank
checks, given in due course of business for the payment of money.
It need not be payable at a bank or any fixed place. Three days or
grace are allowed on all notes and drafts xceµt rho e payable on
demand. The drawee of a bill or draft requiring acceptance
has till two o 'cl ock P.M. on the next business day after µresentment to decide whether he will accept. Bills of exchange, d!·afts,
promissory notes and contracts, due and payable, or to be executed, on Sunday or any Fast day or Thanksgivin g Day appointed
or recommende d by the Governor or by the President, tlrst Monday
of September (Labor's Holiday). or Christmas Day, twenty-secon d
day of February, the thirtieth day of May, the fourth day of July,
or on the following day "hen eitber of the four days la t mentioned
occurs on Sunday, shall be payable or performable u1.10n the
business d1:1.y next preceding said days: and in case of non-payment or non-fulfillm ent may be noted and protested upon such
preceding day; but the holder or holders of snch obligations
need not give notice of the dishonor, non-paymen t or non-fulfillment thereof until the business day n ext following the clays above
specified. To charge indorsers of a promissory note paynble on
demand, a demand made at the expiration of sixty days from the
date thereof, without grace, or at any time within that term is
necessary to fix liability of indorser, and shall be deemed to be
made within a reasonable time. No presentment of such note
to the rromissor and demand of payment will charge the indon°er,
unless made on or before the last clay or said term of sixty duys.
Orders and drafts for money payable within this State, in which
no time of payment is expressed, shall be deemed to be payable
on demand. All persons becoming parties to promissory notes
payable on time by a signature in blank on the back thereof,
shall be entitled to notice of lhe non-puymen t thereof the same
as indorsers. Checks drawn on a bank may be paid within ten
days after death vf drawer.
Suits. Ci"fil actions in general, except those concerning land
(if one of the parties lives in tbe State), must be brought in the
county where one of them lives or has his usual place of business.
Where all parties are non-resident , action may be brought in any
county. Attachment of property owned by defendants residing
out 01A State sufficient to give jurisdiction in suit after notice published by order of court. Such notice to be given within one year
from the entry of the suit. Persons commorant in State may also
be arrested on mesne process and held to bail.
1'a xes are assessed as of the fir~t day of fay in each year. and
on reql estate are a lien fur two years after they are comwitted
to the Collector; but tl1e Collector may sell real e8tate for
taxes after two years have elapsed, unless the est ate has been
alienated prior to the giving of the notice of such sale . If
not paid on demand, Collector may eell after advertieeme nt.
Owner, his heirs or assigns, may redeem within two years by
paying or tenderin g to the Collector when he exercises the power
of taking, or to the purchaser of the sum paid by him, with ten
per cenL. interest and all necessary intervening charges, and persor,
having title may redeem in two years after notice if property is
taxed to a person unknown. or to tenant or occupant not owner,
or wrong person or mortgRgee of record. The purchaser under a
tax sale, if resirlent in the city or town where be eRtate is, mnst
record bis resictenre or place of busintlss. If he re id.cs elsewhere
he must appoint an agent or attorney and record such appointment .
\Vills. Any p erson of full age may make a will disposing of his
estate. The will must be signt>d by the testator and attested by
tbree witnesses in presE nee of the testator. A married woman
may make a will, but such will sh-111 not d eprive her husband or his
tenancy by the cnrtesy in her real estate, or of a life estate in onehalf thereof if they have had no i~sue born alive.
0

MICHIG AN.
BANKING LAW.
(Revised by JULIAN G. DICKIN

ON,

Attorney at Law, Detroit.)

Act No. 205 of Public Acts, 1887, "to revi e the law authorizing
the bu ine~s _of banking. an~ toe tabll h a banking department for
the snperv1s1011 of such busmes8," was submit ed to the electors of
this State at the last general election, in November, 1 88 and was
duly approved. It provide that any number of person ' not less
'
than five, may associate toe tabli h:
Commercial
as
known
be
to
it
1. Offices of discount and depo
banks.
2. Offices of loan and deposit to be known as avings banks.
3. Bank having departments fo1· both said classes of bu~iness.
The aggregate amount of capital stock of any such b nk sbal1 not
be less than $100,000, except that in any city or village with a
P?Pulatio~ of 1.500 the capital may be not less than $15.000; in any
c11y or village the population of which does not exceed five
~ho1;18_and inh~bitant t be capital may be not less thnn $25,000, and
m c1t1es. and villages w th population not exceeding twenty thousand
the. capital may be not les tnan $50,000. The e provi ions as to
cap!tal not to apply to banks heretofore organized and doing
bn~rnef!s.
Ban~ shall not take as security any lien upon any of its capital
stoc~ for any loan; the ame securi t y in kind and amonnt shall be
reqmred of tockbolders and of per ons not stockholders ; shall
not be the holder or dt~o~ f any portiun of its capital stock,

UNIVERSITY OF WASHINGTON

BA KI G AND CO IM:ER I L L \VS-1\II HIGAN.
unless such purcl1a e is nece ary to prevent loss upon a debt previouRl y contra ted in good foi1,h, and stock o purchased hall in no
cu. e be held lona r t han Rix: montll-: if' it can b ~ ~old for what it
-cost, and mu t be sold for the be~t pric obtainable within ()ne year.
Person A so iating to execute arti l
of incorporat ion,
specif yi 11 a:
1. Nnme at.-1 urned, which mu8t no t be similar to name of any
other Stat bank.
2. County, city, or village where located, and to concluct bu iness.
3.
atnre of its busines r 'lative to la~s aforesaid.
4. Amount of capital stock which shall be in i:,ha.re of $100 ach.
5. Names and r ~idenc s of sto kholders; number of ~hares held
~Y each.
6. Period of organizati on, not to exceed thirty years.
uch articles to be acknowled ged before nu oftic r of this State
authorizcr l to take a knowledgm e1 1ts. and to be execnted in triplicate, one of which ball b' recorded in the County lerk's office of
the county wh re bank i to be located, one filed wi th the Commi ioner of th Banking Departme nt, and oue with the Secretary
of State. Copi s certified by either of eaid officers nomi-:sible in
evidence for or against such bank in all C'lurtR. Articles rnny be
mendctl in any nuurnf:'r at any time, n ot inconsiste nt with the law,
by vor' of stockhold ers repre::-0nting two-thirds of capital i:-tock.
Such bank trnll ther upon become a body corpc,rate, and have
powm·s to adopt and nse a corporate seal; to baYe succession for the
specified period of years; to make contracts; to e ne and be sued; to
e lect nnd appoint directors who shall choose a pre ident and vicepre ident, and appoint a ca ' hi er or treasurer and other otncers,
<le.fine their du ie , require bonds. dismiss such officers at pleasme
and lect others in their places. prescribe by-laws reg;ulating the
transfer of stock, the election of directors and other officers,
regula1 e tbe ~pecial meetings of stockholde rs, transfer of its property, the conduct of its bu~incss, and the exercise and enjoyment
of its privileges .
Such bank shall exercise by it Board of Directors or duly
authorized officers or agents, subject to law, all ucb powers as are
necessary to carry on bu inet'ls of banking, discountin g and negotiating promissor y notes and other c0mmercia l pap er and evidences
of debt; receiving deposit::s; buying and elling exc-hange. coin and
bullion, and loanmg money on personal and real security, but they
shall not take or receive more than the rate of interest allowed by
law in advance on its loans and diFconnts. This restriction not to
au t horize any transaction for less than fifty cents.
Fifty per cent. at lea t of the capital tock shall be paid in before
such bank i authorized to commence busine1-s, antl the remainder
shall be paid in hy monthly installmen ts of at least ten per cent .. of
the whole capital stock, payable at the end of each sncceedmg
month from the time it shall he authorized to commence business;
tmc h payments sball be certified to the Commissio ner under oath by
the Pree1dent, Cashier or Treasurer.
On failure to pay any installm nt when reqnir8d, the directors
.s hall sell the stock of delinquen t stockholde r at public sale as they
deem be~t, on twenty days' notice, served personally or by mail at
bis ln,st known address. lf no bidd r will pay the amount due
"ith cost~, the amount paid in on the tock shall l>e forfeited to the
bank and snch tock shall be old as directors may order within six
months thereafter; and if not sold it may be cancelPd and deducted
from the capital. If sold before cancellatio n any surplus realized
rShall be returned to original stockholde r, his heirs or as~ignl'I. If
such cancellatio n reduces the capital stock below the minimum,
such capita.I shall be increa sed within thirty days trom the date
thereof to required amount by subscriptio n s. When authorized as
:aforesaid to commence business, the CommisRi oner of Banking
Departme nt shall examine into the condition of such bank, as to
whether it. has complied with a.ll the proviFions of the Act required
to entitle it to engage in the banking business, and if eo entitled
the Commisei nner shall, within thirty days after receiving notice of
the pa?ments oft he fifty per cent. of its ca pit al, give to such bank
a certificate under his hnnd and official seal, tbat snch bank is
:authorize d to commence business, etc.; he may withhold such
-cert.ifica.te by conRent of Attorney General whenever he has reason
to believe that such organizati on is for an:v other than legitimate
busineFis under this Act. Tbe certificnte sball be published for six
weeks in the city, village, or county whne the bank is located, for the
first pnhlicario n within ten days after the receipt of F-ucb C('rti.ficate.
'l'he 1:1hares of stock deemed per ' onal propl-'rty and transferab le
on the books of the bank a its by-laws may direct; but no transfer
:Shall be va iid o long as registered holder of stock shall be liable
to the hauk 11 principal debtor, snrety or otherwise, for any debt
-0.ne and unpaid. and in such case no dividends, intere~t. or profits
shall be paid on such stock, bnt the same shall be retained and
aµylied to discharge of such liabilities. Shares are subJect to
•atta ch ment and sale on execution a ,!ain st stockholde r.
Tbe capital may be red11ced or incre •sect at any time by two-thirdg vote of the stockholde rs. A certificate thereof, executed by
its officers. in luding r. majority of the directors to be filed as required for ar ticles of incorporat ion; but no increa e shall he valid
.unles~ it is sub crib d and paid in; and no reduction shall be to a
J.es i, amount tban the rrqnired ca-pit al. or be valirl or warraut cancelation of i-tock, or dirnini ~11 liabihty of stockholde rs, until approved
-by said Com mi ;one r, based on his finding that security of existing
-creditors will not be impaired.
Banks may pnrchase, hold and convey real e tate for the followin<Y purposes, only: Sncb as i ncce sr1ry for convenien t trnnsactio n
ofits husine B. including with it:, offices oth r apartment s to rent
which hall not ex eed fifty per cent. of its capital;_ such real estate
conveyed to it for debts to the l'1ank: and such as 1t shall purchase
-at sale nuder jndgment or decree ' upon its securitie.,; but the bank
at such sale shall not bid a laraer amount than to satisfy it debt;
no real estute o acquir din sati~factio n of debts, or at a sale upon
its Judgment s or decree . ball he held longer _than five yea(·s, and
within tbirty dnys thereafter mu t be sold at private or pnbltc sale.
Director s. Bank to be manaqed by a Board of not less than
•~ve to be lected by the tockholde r : bold oflice for one year and
untfl nee ~ ors are chosen ond qualified; first Board to be chosen
before authorized to commence business; thereafter t annnal
meetin<Y of etockhold ers to be h<'ld on second Tne@day in December o('each year; at such meeting-s each share entitled to one
vote for ench directnr~ but no stockholde r who Is indebted to the
'bank on debt pa 1, ...la
hall be entitled to vote: mav vote by
rox:y, but no oftl er, clerk, teJier or bookkeepe r of the bank shall

607

act as proxy. Yacancy iu the Board shall be fill d by the Board
until next lection. Directors must own and ho! ,t not le tban
ten (10) ' hare~ of the tock (111 banks wi I h $15,000 c•ipif al fl. ve shares),
and hall take and snb8cribe specified oa1 h. The board declares
dividend~, so much of net protit a they deem expedient. Before
any dividend is declared, not le s th~n ten per cent. of net. profits
for prec ding half ye r shal l be earned to surplus fnnd until such
funcl a.mounts to twenty per ceut. of its capital.
The Act define certain criminal offeni-es; prescribrs penalties,
fine , and imprisonm II ton conviction for certai~ specified. fra~ds of
any officPrs. or directors. or clerkR, etc. J:{eqmres keepmg 11st of
stockholder , names and filing copies of same second Monday of
April each yt'ar in ~aid County Clerk's. and Commissi ouer·s ofli~es.
Authori zes any State bank re-or~a.n1z ecl under laws of Un~ted
States as a National bank to retam nnd hold the asi:,ets acqmred
during exi tence of such State bauk subject to its liabilities.
National Banks, July dis olved, may organize under the Act
witb the npproval of said Commissio ner. and with auth, rity of its
stockhold er which rnn~t be set forth iu the articles; and tbe assets
of such Jational bank be ves 1cd in ~nch State bank subject to the
unliquidat ed liabiliti es of such National bauk. Violationi of the
said Act by the Buard of Directors constitute ground for forfeiture
of the charter, etc., or snch bank. and it is made the duty of the
Commissi oner to imti tute proceedmg s therefor.
Reports or every Sta.to bank four time a year shall be made
under oath to the Commissio ner, according to forms which he shall
prescribe and furnish, to show resources. as ets, and liabilities 1 ,f
any past day's businees. Snch repo its to he published in newspapers in the respectiYe localitie of any such bank; special reports
may be required whenever def:'med necessnry; repol'ts of dividends
aod amount carried to snrplus to be mn,de within ten days after
such dividends are declared.
Conuner< 'ial Banks not to lenrl to exc0ed fifty per cent. of their
capital on real estate security, and then only by resolution and twothirds vote of the directors. exc ' pt to~ ecnre certain debts. Interest
may be allowed on accounts or certificates of deposit, deposits payable ou demand and wit bout notice, except otherwiRe provided by
contract.
nch banks shall keep on hand at least fifteen per cent.
of deposits· in cities of over 100,000 inhc1bitauts twenty per cenL.,
one-half in lawful money, the other half in funds payable on
demand dt'posi tt-d in designated approv d ban ks. If any such
bank gets below the reqnired re erYe it must s1op iucrea e of liabilities and Commissi oner may notify to make goJd its re ~erve.
Savings TTanks.
ame powers as ommercia l banks as to receiving deposits. All deposits of i-nch banks shall be paid to
depositors , when required, at sncb time or times, with such interest
and under such regulation s as the Board of Directors from time to
tim e prescribes : shall keep u hand fifteen µer cent. of it:::1 total
deposits, one-third oi whicb shall be in monev in its vaults, and tbe
balance of said reserve on deposit, payable on demand, with
approved .1. ationnl or tate banks, or inve~ted in U. S. bonds;
three-fif I hs of the rPmainder hull be invested by the directors in
bonds of U.S. or ofthi or any other State of the U.S. (provid1 d
any such State has not in ten years repuaiated its debt or failed to
pay same or the interest), or in the public debt or bond of any city,
county. towmhip, village, or chonl di trict of' any State of the
U.S. which shall be duly a•1tborized by their legislature ; also on
negotiable notes secured by snch bond~, or on mortgages on unincnmbered r al e tate worth double amount loaned; the remainder
in note~, etc., with collateral secnrity of per ' onal property worth
ten per cent. more than tbe loan and intere ' t; or may be deposited
in any National bank or Trnst Company in cities in this or any
other State npproved by the said Commi sioner; and a portion of
the remainder , not exceedin,g the capitul and additional liability of
stockholde rs, may be im·e tcd in uegotiable paper, approve<i by
Board of Directors. It deposits in any one bank not to exceed ten
per cent. of it total funds. If reserve falls below required per cent.
it mut-t be restored and maintaine d; the om mi sioner shall requirP
it on thirty days' notice. and on default, hall proceed to wind up the
bank. Pass-book s shall be issued to depositors in savings department, containing rules, etc. [See Act No. 10, Public Acts, 1891.]
Banks comhiui ng Commer cial and Savings Banks
shall keep separate books of account for each class. to be governed
respectivel y by the provisions of this Act applicable to each cla s·
shall not is ne any bill, or note. or certificate to circulate as money'
nor issue po~t hills. All investmen t and re~erve relatina ro sav:
ings to be kept separatfl from other bu~in SR, and with depo sits be
held sol ely for payment of savings depositors .
Exi~tfng State Banks are abridged, modified, or enlarged to
conform to provisions of this Act. As to all future transaction s, no
renewal or exten ion of any existing loan or investmen t shall be
made, unless nece~s~rY: to avoid lo s or embarassm ent. All past
due notes, etc., of ex1strng banks, not secured by mortgage, remaining unpaid for six months, shall be charged off to the profit and
loss account .
The "' ~tate Banking Df'lpartm ent " is establishe d as a
separate bureau in the State Departme nt, to haTe charge of the
execution of tbe laws relative to banks.
Commis sioner of the Ranking Departm Pnt, chief officer
to be a1•pointed by the Governor, b y aud with the advice and consent
of the Senate; he to appoint or remove his deputy at pleasure to
perform his duties during his absence or inability. Everv b~nk
existing, or hereafter incorporat ed under State laws, is subject to
said Commissi oner's inspection and supervisio n: his duty to
examine once in each year the cash, bills, securities, etc., of each
bank, and may examine on oath any of the officers, a2'ents, clerks,
depositors , etc., of such bank. Any willful false swearina deemed
perjury. He shall ascertain whether each bank transacts° its business in tbe maun rand place preer.ribed , and make annual report
to the State Treasnrer, which hall he published with Treasmer 's
report, giving summary of tbe condition of every bank, abstract ot
capital, debts anrt liabilities, means and resources, and amount of
lawful money held, etc.: of banks closed, amount of their resources
etc., and amount paid to creditors.
'
Stockh old~r of every bank shall be individual ly liabl , equally
and ratably, and not one for another, for the brnefit of cleposit.ors
in said bank to the amount of par value of their stock, except
persons holding stockc:Mgfffi::ff<f\l&ffiB, administra tors, guardians or

UNIVERSITY OF WASHINGTON

60

BA~I{ ING A D

O:\IME RCIAL LA,

t;u tee , or a collatera l security. All snch shall not be personal ly
liable, but tru t and estate at- et and funds shall be liable, and
uch liability may be
person µ]edging stock hall be liable.
in liqnidat1 on, or
bank
any
by
equity
in
or
law
at
enforced in suit
by any recei \'er or other officer succeedi ng to the right of such
bank. All tran 'fer of notet:1, securitie s or other property , and
payment of money after act of in olvency, or in contemp lation
thereof, with a view to prevent applicati on of a sets, a preset ibed,
or to the preferen ce of one creditor over another, shall be held null
and void.
Legal Proce s against banks to be served on the Presiden t,
Cashier or Trea~nre r, in the county where ba11k is located, or where
plaiutiff re ide , or by leaviug attested copy ot proce sat bankinghouse. during banking holll's, with Teller, Clerk, or any officer of
the bank.
Total Liabili ties of any bank, person, fl.rm (includin g liabilities of the meru ber' of 1:-uch firm), or corporat iou for money
advanced shall ·at no time excet-'d one tenth part ot the capital and
surplus of such bank, but discount of biHs of exchang e and
comm ercial paper by actual owner not con~ider ed as borrowe d
money; these provision s nor to apply to real estate loans, or other
Hy two-third s vote of the
authoriz ed collatera l securitie .
exceed one-fifth. Any bank
to
not
increased
be
may
it
Director8
may go into liquidati on and be closed by a vote of its stockholders owning two-third s of its capital. Any bank refu~ing
to pay deposits as agreed, or becomin g insolven t, may be wound
up by the Commiss ioner. The provision s of this Act govern
all existing State banks, and such banks must file with the
Commis sioner a certificat e, executed by the officers ot each bank,
conform ing to requirem ents relative to articles of incorpor ation, or
reorgani ze under this Act. Banks may issue bills of exchang e on
foreign countries , payable with customar y usance, at or within
thirty days' sight. Such paper not to be used to circulate as money.
The Legi lature at a1,y reg1llar sel3Bion may alter or amend this Act
by two-third s rote. Not necesrnr y to submit amendm ents to popular vote.

Incorp orated Trust, Deposi t, and Securit y Compa nies
may be organize d under Act No. 108, Public Acts, 188~, as amended
by Act No. 126, Pub. Acts, 1891.

Not less than seven persons may associate to form such companies; capital stock to be limited in the articles not less than
$~00,000; not to exceed $5,000,000, except that in cities of' less than
100,000 inhabita nts, the capital may be not less than $150,000. Capital may be increased or decrease d by two-third s vote of the shares,
within the limits above specified. Fifty per cent. cash of the capital to be paid in. and proof by affidavit to be made to the Commissione r of Banking Departm ent before authoriz ed to commen ce
busines s,- balance of capital to be paid in within six months as
Director s determin e. Proceedi ngs to sell at public auction stock
not paid for, authoriz ed on thirty days' notice-i f cannot be sold,
may he at private sale; otherwis e forfeited and canceled .
Corporat ion to deposit with State Treasure r at least fifty per
cent. of amount of capital stock in bonds, notes and mortgag es
on unincum bered real estate in the State worth at least double
amount secured thereby; or public stocks and bonds of United
States, or of any t,tate of the United States that has not defaulted
interest or principa l of its obligatio ns within ten years; or of any
municip ality of this State, or of any other State of the United
States duly authoriz ed to be issued, to remain and be held by the
State Treasure r in trust as security to deposito rs and creditors of
such company i the mid Treasure r to pay over interest and income
of such securitie s received by him, or may authoriz e such company
to collect same for its own benefit.
Substant ially such articles to be made and filed as required of
banks.
Directors , not ]es than seven to manage its stock, property
and affairs; same qualifica tions and term of office as bank directors, and same powers to make by-laws and elect presiden ts and
other ofticers as directors under banking laws; incorpor ate name;
have power to take, receive and hold, repay, reconvey , and
dispose of any effects and property , real and personal , granted ,
committ ed, or conveyed to it upon any terms or trusts by any
per ons, married women, minors, corporat ions or by any court in
this State; an cl to administ er the duties of such trusts, and to act as
agen ts or attorney s ior the transacti on of business , managem ent of
e tates, collectio n of rents, interest, dividend s, mortgag es, bonds,
billR, uoteR, and securitie s for moneys, and foi issuing, negotiat ing,
reghiteri ng, tran ferring or consigni ng certificat es of stock, bonds,
or other obligatio ns of any corporat ion, and to manage any sinking fund; to accept and execule oftices of executor , administ rator,
tru~tee, receiver or atisignee, and guardian , and it shall be lawful
for any court to appoint such corporat ion to any such office of trustee, etc., and witllout other security than said deposit with said
State Trea urer; to have power to loan money on real estate and
collatera l ecurity and execnte and issue its notes debentur es payable at a future date, and to pledge mortgag es on real estate and
oth er securitie as security theref,,r ; but not to i~sue bills to circulate a money, or bny or sell bank exchang e, or do general banking
bu..,iness; to have power to receive on deposit for safe keeping and
toraz~. gold and ilvcr plate, money, stocks security, and other
valuable~, and personal property , and to rent nse of safes and
reccptad es on it premi e ; to become uretie for administ rators,
gnardiant:i. etc., where law require sureties; to insure validity of
title iu n ·al e tate tram,fers , and to have a lien on deposits received
a provided in this Act- such lien to be paid in two years, and if
not so paid, or in ca:-lc property received on deposit shall not be
called for in two year from date of such lien accrued, such property may be old at public auction, on like notice required for constables' sales on executio n. apply proceed to ati 'faction of such
lien and cost of sale, balance to be paid to per on who depo ited
or legal represen t at ivC'; to have power to lea~e, purcha e, hvld'
and convey real estate a itb corporat e prop rty a shall be
nece1-1.rnry for it · bc·iness , for it i-- office and other apartme nts in
same lrnilding , to rent as a ource of income not to exceed fifty per
cc•ut. of it puid-uµ capital and nrplu,; it may aCCt>pt re'i1l or
pur ·uant to law' o·f i:;tate or ol the
r~r onal e tate in tru, t crea1ed
Unit ed tates, and. nch per 011111 e tate a· i ne el'lsary to carry on
its busines . al o all real or per onal 1 ·tate in the settleme nt of
claim ari1::-ing in it.· transacti on and to execute n cetl 'ary receipt ,
certifica ie, and contrac t. No sncb real estate Rhall bereceiv d as
an a et longer than fiv year . Director may inveut it remainin g

-HI HIGA .

capital tock and other moneys it receiTe in tra t, in bonds and
mortgage s of same charnct, r as those required to be depo ited,
hall
or iu uch real or personal security a they deem proper.
matmed
its
of'
cent.
per
twenty
to
equal
fund
band
keep on
obligatio ns and money due and payable, three-fou rth of wl:lich
may be dl'posite d in any bank or tru t compan y apprO',,ed by
Commiss ioner.
Legul µroces same a again t banks.
Taxation same as agamst bank .
Share personal property tran ferable same as in banks.
Stockhol ders individu ally liable ratably for corporat e debts,
contract s, and engagem ents to the amount of their t:-tock at par in
addition to amount invested in their shareR except trustees, etc.,
and persons holding stock a collatera l, but tru t estates hall be
lit1.ble as to same extent testator or intestate cestue qui trustant
would have been liable.
R eports required to be made four time each year to Commi sioner, when he requests , nndcr oath, ._ howing ret-ource and
liabilitie s; also report in ten days after any dividend declared , or
amouut of dividend and net earnings in exce s
Inspecti on and supervis ion by Commis sioner of State Banking
Departm ent same a bauks; may be wound up in ca e of'insolv ency
by appointm ent of Receiver on proper applicati on of suid Commissione r.
Provisio ns of this Act to govern all exi sting like corporat ions
heretofo re organize d under Act 5 , ' ession Laws of 1 71, except as
to amount of their capital stock; such existing corporat ions must
file with said Commiss ioner a certificat e in conform ity with requirements of this Act as to articles of corporat ion.
Locatio n of State Banks. All real e tate same a other real
estate in the city, village or township ; and the residue of it capital
and surplns shall be ta:-..ed as personal p1operty -not at irreater rate
than money capital of individui d citize11 of city, etc.
Taxatio n of State and Nation al Bank tock. All shares
in banks organizl' d in this State under laws ot this 'tnte 11nd or the
United States, at their cash value, deductin g value of their real
estate and mortgHges; share assessed to their 0\.vners in the
town where the bank is located. Owned by a per on residing
within the county where the bank is located, shall be as essed in
the town where he I esictes. Bona fide indebted ne 's may be set off
against taxation of bank ehare:, as well as other taxable property .
In case of any tax on shares of any bank the County Treasure r ·hall
call upon the cashier and demand payment , and it shall then be
bis duty to pay said tax and charge amouut so paid against the
shares of said stock. The cashier of every bank shall, on eecond
Monday of April in each year, file with County Clerk statemen t of
bank·s real estate and mortgag es (conetrue d as real estate), cash
val11e of same, list of stockhol ders, amonnt of their stock and
If he wilfully refuse to file ame, or make
thei r residence s.
false entry or statemen t in such list, he shall be guilty of a misdemeano r.
COMME RCIAL LAW.
Acknow 1edg-m ents. Deeds and mortgag es of land8 or any
interest therein, executed within this State, mu t be witn essed by
two persons, and may be acknov. lectged before any Judge or Commissione r of a court of reco1 d, a Notary Public, or a Ju tice of
the Peace. When the instmme nt i executed and acknowl edged
in any other State, Territory , or Dist1 ict of the United States,
it may be done before any Judge of a court of record , whose
certificat e bas seal of his court attached , a Notary Public under
his official seal, or bP.fore any Commis sioner appointe d by the
Governo r of Michigan for that purpose. Unless taken before such
Commiss ioner, a Judge of court of record, with seal of his court
attached , or before a Notary Pub1ic who certifie nnder his official
seal, such deed should have attached thereto a certiflca1 e of the
Clerk or other proper certifyin g officer of a court of record of the
county or district within which such acknowl edgment i taken,
u uder the seal of bis•oftice, or the certificat e of the Secretar y of the
State or Territory where taken, under his seal of office, that the
person whose name is subscrib ed to tbe certificat e of acknowl edgment was, at the date thereof, such officer as be is therein represented to be; that he believes the signatur e of such ofticer 1mbscribed
thereto to be genuine, and that the inst, nment is executed and
acknowle d'!ed accordin g to the laws of such State, Territory or District; and if such instrum ent l.Je executed in any forei gn country,
it shall be executed in the presence of two witnes e8, wbo hall enbscribe their names to the same as snch (Act No. 217, P. A. 18 9),
and may be acknO\d edged before any Notary Pnblic th erein. or
before any Minister Plenipot entiary, Minister Extraord inary, Minister Resident , Cha'JYJe d'4.ffaires, Commi sioner, or Cun ul of the
United States appointe d to reside therein, such acknowl edgment
to be certified thereon by the officer under hi banrl, and if by a
Notary, his seal of office shall be affixed to snch certificat e.
Assign ments and Insolve ncy. Assignm ents for the bene:tlt
of creditors may be mnde by any debtor,, ·ithout preferen ce, and
mu, t be of all property of a ignor not exempt from executio n.
Preferen ces by way of payment s or security not in the a ignment
itself, though made at the ,ame time with the a.:;signment, will be
sustaine d if received by creditors in good faith without notice of
the fact of such H signrnen t Whipple vs. Stebbins (6-7 lich. 507).
In trurnent in dnc form or mortgage.::, though compri~i ng all debtors' property and giving µrefer nces, can not be constru cl as as 'ignmenrs. \Varner ""· Littlefiel d ( 9 Mich. :324). Assigne e must give
appro\'ed bond. in double the amount of property a1:ii:,;i~necl. The
bond, the instrnme .ut of a signmen t, or a duplicate tberl'of, inventor y
of the as igned property , and a Ji 't of the creditor of the a signor,
must be filed with the Clerk or the Circni t Court in the county where
the as ignor resides, or if he is not a resident or this 'tate, then
in the county where the a iguee re -ides, and if neither are residents of thi State, then in the county where the a @ianed
property is principa lly located, within ten days. No assign~ ent
eiiectnal nnle~ such bond i o executed , filed und approved . Assig1we filing bond after ten dar not snfficien t ( 3 Iich. 2j6). No
attachm ent or executio n levied upon assigned property after the
as ~ignmen t ~nd before the expiratio n of tb.e time for fl.ling bond
shall be valld; tb assignment. may be enforced in equity bv suit
of any crrdito~· (4o lien. 78) if ai:i ignee neglects to file app1oved
bond· otherw1 e attach,me nt and executio ns may be levied and
Original from

UNIVERSITY OF WASHINGTON

BANKING

D

OMMERCIAL LA vVS-MICHIGA

pro ccutcd effectnally again t a 'ignor'
tate (G3 Iich. 716) . The
as&igument mu t be aclrnowl dged before an officer antb.orized to
take acknowledo-m nts. 1r he bond shall b to the a ignor for
tbe joint nnd several use aud benefit of him elf and all creditors of
nch assignor, and b.all be signed by the a signee and sufficient
uretie,-, who shall ju tify before aid Clerk or a Circuit Court
Uommissioner und r oath. l tu ll prote ted assignm~nt can not
be set aside, but may b enforced in ~q ui ty to accord with tbe
requirement of the 'tat ute; to have the trn ts ca1 ried out, and
an equal di::-strihution of the in ' olYent e:::t ate 3 Mi h. 543). The
tatute r latiY to as::-ignment', i:-ntPtantinlly a opy of Illinoi
As ignment Law of 1877 aud d 'Ci ions of the Snpr>me ourt
of Illinois, cit d an l approved in the case of .Wnrner vs. Littletielt1, s111n·a. Notice shall be ~iven by the a ignee pereonally or
by mail to en h er 'di tor; such notice shall require creditoIS to
prove their claims wi thin ninety days thereafter by afilclavit, to
be fl.l ed in 'aid lerk's office, or in default the assignee or receiver
oon as practicable
will proceed to di tribute said e tate , a
thereafter, without refer nee to claims not proven. Before making a dividend, a13signee shall erve, per onally or by mail, on
each crl' d ito r who'c name appears on schedule filed, a complete
list of all creditor . The Court may remove an a siguee and
appoint another in his stead on application of a. m ajority in number
and value of un ecured credito rs. Assigned estate may be advertised
and old as a whol e, unl ess majority of creditors reque st as ignee
to sell in parcels. If a bid of at least fif ty per cent. is made sale
must not be postponed. 'rhe assignee 1:;hall retain in hi hands a
sum to provide for all contested claims. Every proof mu t state the
actual amount unpaid and owing, t he actual consideration thereof,
when contracted, when due or to become due, whether any and
what payments have been made thereon, that, tb.e s um claimed is
jnst.ly due from assignor to claimant, and that claimant has not
nor has any other person for his use received any ecnrity or sati faction whatever other than that by him set forth. A signee shall
can e appraisement to be made, by t wo co mpetent apprai er under
oath, of the property assigned to him, and file the same with the
assignment. He shall also file a report of t.he condition of the
estate and his doings under the as ignment within three months
thereafter in the aid Clerk's offi ce. Iu caRe of fraud in the asRignment or in the execution of the trnst, or failure to comply with the
law. or failure to promp tly and faithfully exec ute the tr ust, any person interested may file a bill in chancery for the enforcement of
the trust and the appoi ntment of a receiver. Assignee or receiver
may contest any claim. Any creditor may request in writing the
assignee or receiver to contest any claim, and such re4.ncst will
operate to stay payment of any dividend on su ch con te ted claim.
H assignee or r ceiver refn e to make such contest, creditor may
petition the Circuit Court for an order requiring it. The Circuit
Court in Chancer y of the proper county shall have supervisory
power of all matters, questiouf'i, and dispute ari ing under snch
as ignment. All debt for labor shall haYe preference over\ th r
creditors nd over other lien , contracted prior to such labor.
Attachment. Process will i sue on affidavit that there is a debt
due upon expres or implied contract, and bowing either that
debtor ha absconded, or is about to ab~cond from the ~tnte; has
assigned, removed, or concealed his property with intent to defraud or fraudulently contracted the debt; or is non-re iclen t. or
a foreign corporation . Attachment may now be s ued out for debt
to become due in future upon showing reasons eati ' factory to
Circuit Judge, but judgment cannot be rendered until debt is due.
.Actions of Tort a 0 ainst non-re sidents may be commenced by
attachment. An affidavit must be made describing the cause of
action, which mu st bav arisen in this State; or accrued \Yhere
plaintiff wa .. bona fide resident, and showing that defendant is
carrying on business in t?-e State, or owns prop.erty t_herein.
Uarni b.ee proce
may l>c issued from any court m which the
original nit is commenced, and in such proceeding indebtedness
to the priucipal defendant or property in hands of fraudulent
transferee, or property of any kind subject to execution in garni h e's hand , may be reached for the satisfaction of any j udgment recovered in the nit, but the wag s of any householder,
ha.vino- a family, to the extent of $'35, are exempt from garnishment.0 Garni hecs liable for property received under conveyance,
or mortgag s that arc fraudulent as to creditors, and for the value
of such µroperty if di ' PO ed of by garni hees before or after
garni -hment.
Arrests o( Debtor8 may be made in all personal action other
than tho e' arising on contract, and in actions when the claim
i for money collected by any pablic officer, or for m1 conduct or
neo·lect m office or profe sional employment, or upon promise to
marry; also under fraudulent debtors' act. In other actions than
those aforesaid, when a creditor has commenced nit or obtained
jndorn nt he may apply for a. warrant of a1-r1:st. in such "nits and
on sntisfo torv evi Lenee adduced to Judge of 1he Co ur t where
such rnit or jtH1gment is obtained of the d~bt, and establishin_g : .a,
that d f 'ndnnt, is a.bout to remove any of hr property out of Jlln ' diction of sn h onrt with intent to defraud hi credit r ; b tbat
be ha prop rty or rio-ht:::: in action ,Yhich he frandnlently conceals,
or tock', money or evid nee of debt \Yhich he unjustly refo t>
to apply in payment or tbc judgment or c:i-ccree; c, th,~t ~e has
as ig-11ed, etc., or nbon t to dispo e of any of hrs property with mtent
to defraud hi ' rcditor ; d, that he frnndulently contracted the
debt in nit, a warrant of arrest hall i flue. (C bnp. 30-!, How. Stat.
Mich.) No ,voman can be arre ted on civil process.
Bills of Lading o·overned by the Common Law.
Con tracts and Sales gov med by th e Common Law and
4
' Statute of Frauds."
Corp () rations. Banks, minim; and manufacturing, insurancefire, marine ancl life-printing n,nd publishing, m erca ntile, railroad,
treet railwa ys, co-operative mutual b nefit a ociations, co-operative and aving as ociationl3 , r ligions ocieties, and municipal
corporat10n . may be organized under general law exi ting for the
purpose.
Courts. Terms and Jurisdiction.
ircuit Court!,, holding from
two to four terms a year in each county. have original juri diction
in actions on contract where damages claimed amount to $100 and
upward, and excln 'ive juri diction in actions ot' tort where dama~es alleged exce1::d $100, app "lJate juri diction from Ju tice 's
and Probate onrt . The uperior ourt of Grand R api ds bas
original and concurrent jurisdiction with the Circuit Court in aH
39

609

civil actions , here the debt or damage exceed $100, and. in
whi ch the defendants, or one of them, hall have been served with
process in tb.e said city, and wh ere the parties or one of them,
re ide in said city which mu t appear rn the process or pleadin as . Justice'
~urts have original jurisdiction when the de~t
do1es not exceed $100, and concurrent juri diction wit.h the .Circmt
Court when the de bt does not exceed $300, except m act10ns of
tort, where the limit is $100 . Ther P, i a Probate . ., ourt ~n each
county, with the usual powers. T he Supreme Court of th1 _Sta~e
is tbe final appellate tribunai to which all appeal from t_he 1r~mt
and Superior Courts of th e State are taken. at law and m eqm ty.
United States Cour ts, "8ixth Circuit" and Eastern and Western
District , Detroit, Bay City, P ort Huron, farquette, and Grand
Rapids, Mich.
D eeds, :Mortgages, and Co~tracts of yea~ estate m~y be
recorded wi thin the county wherem the land 1s situate and. 1f not
so recorded are void as aoainst
subsequent purchasers or mcum0
brancers fo r a valuabl e con ideration whn have not received
actual n otice of such deed or mort,;age. Foreclo ure of morto-ao·es by adverti ement , or in Court of Chancery in county w~ere
property is situate. Certificate of County Trea n_rer or AuditorGeneral required oy regi~ter of deed . and howmg paym ent of
State and county taxes for five years; in default thereot deed and
contract not to ·be recorded. Chattel mortgages and bills of sale
intended as security are absolutely void as against creditors or
sub equent purchasers and mortgagees in good faith, without actual
notice thereof unle s the mortgaoe or bill of ale, or a true copy
thereof, be fil~d in the City or Township Clerk'~ office w~ere the
mortgagor resides, except when such mor.tgag?r 1e non-resident of
the State the instrument honld be filed m City or 'J.1own Clerk s
office where the property is located . Such mortgage made and
withheld from the files are po tponed to all indebtedness contracted after their date, and prior to date of filin g such mortgages.
Chattel mortgage' are held to be ecnrities for the debt-give no
legal title until foreclosed by sale of the prop erty, under power of
sale, or by proceedings in equity; and such mortgages cea e to be
valid after one year unless within thirty days before the expiration
of that time they are renewed by affidavit, showing the actual
amount of mortgage deb t; and the filing of th is affidavit in such
Clerk's office. By Act No. 18, .Public Acts of 1 9, the fraudulent
removal, disposition, concealment and appropriation of mortgaged
chattels comtitntes a criminal offense, felony, or misdemeanor, according to the value of property so disposed of, and Act o. 17
makes it a felony to embezzle remove, conceal, or dispose of leased
chattels. or chattels held under contract of purchase, if their value
amo unts to $25 or more; if under $25 in value it is a mi demeanor.
Depositions may be tak n conditionnlly to b e read on the trial
of nny action p rndin2: in Courts of Record; application therefor
may be made to a1,y judge or Circui t Comt Co m mi ioner · affidavit
showing nature of the action, etc., and that the witnes i about to
depart out of the State or i' sick or infirm, the j u oge makes the
order r quiring adverse party to appear and attend examination
before said judge at the time and place specifi d in the order, 11ot
toe ceed twenty days : the judge may comp l attendance of uch
witneR by summon and enforce "ame by attachrneut· deposition
to be returned to the Cltrk of the Court where action is pendiog.
Commission may issue to 011e or more competent person to take
deposition where ,vitness reside-1 out of the tate on application
to an d order of tbe cou rt or ircnit Court Cu m missioner upon interrogatorie to be annexed thereto, which mu. t b e first settled befo re
a justice or judg or Circuit Court Commissioner, nnle!'s agreed
upon by partie or their attor neys; depo i t ion to be taken and
certified and r eturned with the commission a directed by the
terms thereof. Depo itions may be taken before a ny judge or
commiesionerupou notice given to adveree party where the witness
reside more than thirty rniles from the place of trial, either in or
out of the State; ufl:idavit to show the fact of t he cause pending in
any Court. of R ecord or Justice',- Cou1t, and that the witne s is
material anrl liYe more than thirty milet--from the place of trial.
Any Judge of P robate may issue commission to one or more person.., to take depo itions fo r u e on the trial of any catre or proceeding before P robate Court where such witne s i s unable to
attend by reason or age or bodily int:hmity, or live more than
twenty mil ' from the place of trial; also when nb:,.cribing witn es
to a will filed for probate re ides in the State but out of the coun ty
and is unable to attend, court may order deposition to be taken
beiore Judge of Probate in county where witnet:1s resides.
Execution may issue at once in Circnit Courts , and ,vithin five
days from rendition of Judgment in Justice·s Courts. Execut ions
are returnable not less than twenty day , nor more than ninety
days. Stay in Justice's Courts may be obtained by giving secured bond for paymen t of judgment, cost and interest, t he time
all )Wed being four months when the judgment does not exceed
$50, and six montht3 when above that sum. Lands sold under
execution m ay be redeemed by the debtor, his heirs, devisees, repre entative or assigns, within one year, by payment of the purcha e
money with in tere t borne by the judgment, and may be redeemed
by any judgment creditor b.aving subsequent levy at any time within
filteen month' from the date of uch sale. Execution~ may i.ssue at
any time during the life of a judgment. Levy on real estate cea es
to be any lien thereon at the expiration of five year .
E xem ption. Homestead of any hon eholder not exceeding
forty acres, if in the country, or a house and lot in a city, town or
village, the value in either case not to exceed $ 1 500. Can not be
alienated or incumbered without con ent of the wife, where such
relation exist', and can not be sold by probate license to pay debts,
unl ess apprai ed to exceed $1,500, and that amount i paid. Personalty .exempt i.uclude house~old fornitn~·e t? .amount of $250,
all s wmg machmes actually m use by md1v1dual or family,
and an:, mortgage, etc. , thereon must be secured by the wife·
stock in trade. a team, or other thinos which may be n ecessary
to carry on the pur nit of particular business up to $250 and
partner of a firm are each entitl ed to such exemption, e~cept
for the purcha e money thereof, and any sale of ame after nit
for the price shaJl be void, provided notice is filed in Clerk'
office in the town where owner resides ; library and school books
not exceeding $150; to a householder, ten heep, two cows
five swi~e, prov~sions, fuel, spinning wh eels, looms, tov s put
for use m dwellmg, cemetery tomb and rights of burial library
and echool books of eC)rf?i~a¥¥roWiual and family, family pictur

up

UNIVERSITY OF WASHINGTON

610

B.A.NKI TG A TD

o:nrl\IERCI.A.L LA ws-irr

one cow, provi...,ion .. and fuel for comfortable ub istence for one
mo nth, hou ehold good , furniture and uten ils to the value of 500
under any execution i ued upon judgment for work and labor other
o property exempt from ale for
than profes ional ervice , etc.
tax hrn· .
by
exempt
L
as
such
except
,
taxe~
ix per cent. per annum is the legal rate of interIntere t.
may contract in writing for a higher rate. not exparties
but
t,
e
ceerting eight per cent. Intere t payable emi-annnally , annually,
or at, anv other period falling due ,vill bear interest computed to date
of payment. 'fhe penalty for u ury is a forfeiture of all intere t
on the obligation. A bona fide purchu er of negotiable paper is
not affected by it being u urious, unles appearing on the paper.
Judgment hear the ame rate of interest as the instrument or
contract upon \Yhich such judgment wa s founded.
Judgment s are not lien until execution has been issued ther eon 11nd a levy made, and notice thereof recorded in the Register of
Deeds' office of the ounty where such lands are located-exec utions i ue to Sheriff of any Connty in the State. Judgments can
be obtained in the Circuit Court in from forty-five to sixty days,
depending on return day, time of service, term of court, etc. In
JnRtice's Courts, if defendant makes default, judgment can be
obtained on return day of process.
Limitat ions of Suits. Judgments of courts of record, foreign
and nome ic, exist ten years; of Justice's Courts, six years. On acconnts and notes and other simple contracts actions can not be
brought unless within six years from the time the action accrued, as
al o all civil actions for injuries to person or property. On sealed
in truments and judgments, ten years . Revivor: Part payment, or
promise in writing to pay. Absences from t.he State deducted from
the period of limitation. Writs of Error from Supreme Court must
be issued in one year after final judgment of court below,except said
Supreme Court may grant further time, not to exceed six months.
Que~tions of law only can be reviewed in law cases, but both
que tions of fact and law will be heard 011 appeals in equity cases.
Proceedings to foreclose mortgages mlu,t be commenced within
fifteen years after they become due and payable, or within
fifte en years after last payment on mortgage; and as to mortgages fifteen years or more past due, within five years after
the statute takes efl'ect. [See Session Laws, 1879.J After such
limitations have expired, mortgages muy be discharged by application to the Circuit Court of the coLmty where property is situated.
For the recovery of real property-wi thin five years where the claim
arises against executor's, guardian's, or i:;heriff's deed; within five
years where defendant claims under deed made by Auditor General
of this State for taxes; within fifteen years in all other cases.
.Married W 01nen may make contracts m respect to their own
property, and may have, hold and enjoy the same, and have the
same rights and remedies as though they were unmarried. They
may carry on business in their own name with thei r own property
by consent of their husbands, but can not enter into partnership
with hu band and render herself jointly liable for fir en contracts,
73 Mich. 146. But a married woman's contract to pay or to
become liable for payment of the debt of her h11sband or
other person is voidable by her. She may, however, charge her
real or personal property to secure such indebtedness , ty mortgage. A mortgage upon a homestead is void unless signed Ly the
wife. Widow takes dower; the use during her natural life of onethird part of a11 the lands whereof her husband was seized of an
estate of inheritance at any time during coverture, except non-residents of the State and except where she elect.; to take by will, giving her property as heir of do·wer. Mortgage indebtedness on the real
e tate for part of purchase price will be deducted from the value of
such real estate in setting off and assigning dower. Conveyances to
husband and wife of lands they have title to by entirety not liable
to execution against both or either of them. Mechanic's lien for
services and materials fnrnisbed upon lauds belongi g t o, with her
knowledge and consent, hy co 11 tract with her husband, same as if
contract made with her. Act No. 179, Pub. Acts, 1891.
Notf>s and Bills of Exchange. Negotiable promissory notes
and bills of exchange, incl11ding acceptances, are "commercia l
ot necessary that snch paper be made payable at any
paper."
bank 0r other place. The persons primarily liable to pay any such
paper mn t seek the holder and pay to such holder when the paper
1 due. If there are indorsers or drawers entitled to notice, of course
the holder is bound to present the paper to the makers and demand
payment, if he wishes to hold such indorsers and drawers to their
liability,uncl notice must be given Lhem in their order promptLv
by nue course of mail or by immediate personal service of notice of
such presentment , demand for payment, and refusal to pay the
paper. On all bills of exchange and negotiable notes and acceptance payable within this tate, three days of grace are allowed,
but not in caRe oi any bill of exchange, note or draft payable on
demnnd. All checkR, bills of exchange or drafts drawn on any
bank. are payable vdthout grace, and it is not necessary to protest
the ·ame for non-acceptan ce; bnt nch bills of exchange and checks
.~11onl d be pre ented within a reasonable time for µayrnents to hold
clra,..,·er or indor en,. In all other ca es demand, protest for nonpayment, and tbe ending notices of protest to the indor er, at his
reputed place of hu ·iue~ or re idence, are nece ary to bind the
h1clor er. Parties oth 'r than payees to paper, being such before or
at it inception, arc held as joint makers, and uot entitled to
uotice of 11011-paymcnt. Damages on domestic bills prote ted,
thr ·c to teu per cent.
1/ollday.· to he ob. erved in the acceptance and payment of bill
of exchange and pro mi!- ·ory note , in the holding of court , etc., are
the following: 1 t day of' January ( Tew Y 'ar' Day), 22d or February (Wa hington's Birlhday), 4th of July, 25th of December (Chri trna Day), 30th of . lay (Decoration Day), fir t Monday of eptember; cv ry , a urclay afternooll; and nny day appointed by the
Governor or the Pre ' iclent oft he United tut es a a day of thank giving, or a day of faqting and prayer. In en e a11y of ·aid holiday
hall fall on uuday, then the Monday followin~ hall be considered a the aid holiday. Wilen the la. t clay 01 grace fall on
'unday, or on any 1 gal holiday or half holiday the next c:ecnlar or
bu.aine s day is corn,iclered as the la t day of grace.
Suit . Practice and proceeding of court · arc in accordance
with the rule of common law and court or equity in England
with ome tatutory modification . Action survive as by the com~
mon law, and in addition thereto action of repl evin, trover, assault

ESOTA.

and battery, fn lse imprisonmen t; for good taken and carried away;
negligent injuries to the per on; actions for dam nges to real or personal state.
Taxes assessed again t real estate become a debt again t the
pers n asse $ed December 1 t of each year, and su h taxe a lien
on the real e tate, and all per onal taxes hall be a lien on all peronal property from first day of December of same year. City taxes
are governed by charter.

MINNES OTA.
BANKING LAW.
(Revised by W .ARNER, R ICHARDSON & L.AWRE CE, Attorneys at
Law, St. Paul.)
Constituti on. Article 9, ec. 13. Tt.e legislature may, by a
two-thirds vote, pass a gen eral banking law, with the following
restrictions and requirements :
F irst. The legislature shall have no power to pass any law sanctioning in any manner, directly or indirectly, the sn pension of
specie payment to any person, association or corporation i suing
bank notes of any <lescription.
Second. The legislature shall provide by law for the regi try of
all bills or notes issued, or put in circulation as money, and shall
require ample sec11rity in Un ited States stock or State stocks for t he
redemption of the same in specie; and in case of a depreciation of
said stocks, or any part thereof, to the amount of 10 per cent. or
more on t h e dollar, the bank or banks owning said stocks shall be
required to make up said deficiency by additional stocks.
'l'hird. The stockholders many corporation and joint a sociation for banking purposes, issuing bank notes, shall be individually
liable to an amount equal to double the amount of stock owned
by them for all debts of such corporation or association; and such
individual liability shall continue for one year after any transfer or
sale of stock by any stockholder or stockholders .
Fourth. In case of the in olvency of any bank or banking association, the bill-holders thereof shall be entitled to preference in
payment over all other creditor of su ch bank or a 80ciation .
Fifth . Any general banking law which may be pa~sed in accordance with this nrticle, shall provide for recording the names of
all stockholders in such corporntion. tbe amount of stock held by
each, the time of transfer, and to whom transferred.
Article 9, Sec. 4. Laws shall be passed for taxing the notes and
bills discounted or purchased, moneys loaned and all other property effects or dues of every description of all banks and of all
ba11kers, so that all property employf'd in banking shall always be
subject to taxation equal to that imposed on property of individuals.
Statute . A limited partnership can not do banking bnsiness.
Any association of persous not less tbau three may be incorporated
as a bank. The aggregate amount of capital stock of such as1::1ociation shall not be less than $10,000 in town:-- containing a population
of not exceeding 1.000 person and not le s thau $15.000 in towns of
not exceeding 1,500 iuhahitants ; not less than $~0,000 in town" of not
exceeding 2,000, and not less than $25,000 in towns of more than
2,000, the population in all ca eR to be determined by last official
census, and no such association shall be organized ·in any town
containing less than 200 inhn bitants. The full am onnt of capital
stock named in the 01 ganization certificate shall be paid rn caeh
before any association sball be authorized to commence bu ine ~,
and snch payment shall be certified to the State Auditor uncl r oath
by the Pre ' ident or Cashier of the as ociation.
Articles of Incorporatio n shall state:First. Name t o be used by bank, which name s hall not be that
of any other bank in the State.
Second. The place of business.
Third. The amount of capital tock and number of hares.
Fou?'th. Name and residence of hareholders and number of
shares held by each.
Fifth. 1,he period at which said bank shall commence and
terminate.
Certificate of organization must be ackno\\ leclged before some
Clerk of court of record or Notary Public ancl authenticate d with official seal and record 1 ·d in office of Hegister of Deed of county
where bank is located; the certificate, when so r 'Corded to be tran _
mitted to State Auditor, who shall preserve ame in file in his office.
Upon fulfilling above reqnirement bi1nk h:tll be fully incorporated
and have power to contract, sne and be sned, and 8hall have all
other power , privileges and immunities incident to corporations
subject to re tri tion of the chapter. When iucorporutt·d as aboyc'
State Anditor shall hrne a certificat to bank under hi hand and
seal reci~ing that ~.h e a ociation has complied with requir ments of
law and 1 authorized to commence bn ine' ', \\ hich ret·tificat hall
be prima facie evidence in all the conr t of the ' tate that such
as ociation i duly and legally incorporated . State Auditor ma)
withhold certificate ·when hf' bas rea-.on to beli YC tbat shareholder
have organized for any other obj. er than that contvm~,late d by law
of the State, applI able to bankmg; hall not commence bn"'iness
until authorized by 'tate Auditor; shall cantl articks of a ociation and unthorization certificate of 8tate Auditor to be 1mblished in
county where located at lea t four succes ' ive weeks or in case
no new paper is printed in the county then in one at the capital of
State. Any such a o iation ma.v go into liquidation und be
closed by the vote of the Hharellolders owning two third of its
stock. When vote to go into liqniclatiou is tal~en directors shall
certify t~ch fact by pre ident or ca hier to uperintenden t of Banks
andyubh ·h for four w~eks no_tice _that a ociation i clo ing up its
affairs and that all cla11n1,s agamst 1t ' hall be pre nted for payment·
hall report on 1 t of January and last ot July each year on progress
of liqu!dation _to the uper~ntende nt of Bank under oath of president, v1ce-~re 1dcnt or ca hier, and at te tecl by the signature of at
least ~w~ d1~e~tors;ma y pe_ ued in liquidation ameasifnot. When
association 1s msolvcnt A 1s unlawful for it to pay out any money
Original from

UNIVERSITY OF WASHINGTON

B

KI G AND co IMERCIAL LAws-:MIN ESOT A.

or receive depo it , di count or purcha e bills, notes or in any
other way tran act any bu ines of banking; i not forbidden to
rec ive and afely k ep any property belongmg to "aid as ociation.
All tran fer , conv rsions of prop erty ,Yhich prev nt the application of all of it ass t by aid corporation to payment of lawful debts
ar ab olutely void wben made or done after an net of in olvency,
or in con temp lat ion of iwolvency, with intent to give creditor preference.
o attachment, injunct ion or execution ball be i ued
again tan in ~olvent a ociation before final judgment in any suit;
shall be q ua 'hed upon proof of insolvency at time of issuing. Attorney General hall upon request of Superintendent of Banks institu1 e proceedings to wind up affair of any banking as ociation
when, upon examination of up rintendent of Bank such a ociation i found to be in olvent. Pending application for a receiver
Snperintend nt of Bank may a ume control and possession of
bank and turn ame over when receiver is appointed. Officers
and dir ctor may make good deficit after proceedin~s begun and
proceedincr must be di ~missed. May declare dividend of net profltH after deducting- all losses and bad debt . All debts on which
intere t is pa t due twelve month unless ecured or in pos ession
of r.ollector shall be deemed bnd debt .
o per on or p r on who are now, or hall hereafter, become
engaged in the but-iness of banking, in this tate, not subJect to the
supervi ion of, and not required to report to, any officer elected or
appointed by the tate, hall make u e of any office i-i!:!;n at the place
where such bu iness is transacted, having thereon any artificial or
corporate name ; nor shall such person or persons make, uee or circulate any letter head , bill heads. blanks, notes, blank receipts,
certificates circular or any written, printed or partly printed or
partly written paper whatever. having thereon any artificial or corporate name.
o bank hereafter incorporated shall adopt or use the
name of any private or unincorporated bank now existing without
first obtaining con ent in writing from the person or per ons who
have done bnsines by or under snch name. The penalty for infraction, not le s than $50 nor more than $500, to be paid into State
Treasury.
Said bank ball depo it with the State Auditor, stock of the
Unit d States, bearing aL least 5 per cent. per annum, or tate
stocks bearing not lrss than 6 per cent. per annum and shall
receive from tbe 'tate Auditor circulating notes regi tered
and countersigned by him, equal in amount to the amount of
stocks deposited. 'l'he Anditor is to keep stocks so deposited
up to full value. In ca~e stocks depreciate, and are not replaced by the bank, the Auditor shall call in the circulation. The
liability of the banking as ociation shall at no time exceed 15 per
cent. of the aggregate cnpital stock, nnd said bank shall not loan
or · di count on its own stock a-- security. :- , aid bank hall at all
time.;, keep on band at lea-t ZO per cent. of its liabilitie . Banks
are rcqnir d to make at least fonr detailed report , in each year, to
tbe tate Auditor, and oftener, if required by him, aid reports to
be under oath of the president or ca'hier, and attested by at least
two of us directors; the reports to be published in a new13paper at
the direction of tlw State Auditor. The public examiner is required to examine the books, account and ecuritie of all banks
in the State at least once in each year, aud report such examination to the Governor, and the Governor is to publi h such report.
Savings bank inve trnentf'; are limited. as follows, viz.:
To tocks or bonds of any State in the Union, and of the Territory of Dnkota, provided that tate or Territory hns not defaulted
principal or intere ton any of its stock or bonds within ten years
next preceding, and of the 8tate of :M inne ota issued since 1860.
econd. In the tock or bonds of any city, county, town, village, or school district of tb e States of Minnesota Wisconsin, Iowa,
and the Territory of Dakota i sued pursuant to the authority of any
law of said States or Territory, or in any interest-bearin~ obligation issued by the city or county in which such bank shall be situat d.
Third. In notes secured hy fir t mortgage on real e1-tate in the
tates lat1t nbove named and tbe Territory of Dukota, and worth at
lem,t double valne of amount loaned, not to exceed 70 per cent. of
whole amonnt. of moneys in bank, to be so loaned or inTest d.
Lo ms on unimproved or unproductive real estate not to exceed
more than ;30 per cent. of it actual value.
No investment or loan to be made, except upon report of committee of trustees, ,d10 srall certify the value of ecuritie , which
Ct> titicate hall be filed and preserved by bank. Trnsteee shall
not he le~s than seven in number, and sha)l each ~ive bend to tate
o1 L\1iunesota for benefit of depositors in tne penal sum of $5,000.
Association may provide for an increa"e of capital from time to
time. Increase of cnpi.tal not valid till whole amount of increase i
paid in. in ca~h and certified to by ..,tate Auditor. May reduce capital
to minimum by vote of two-thirds of stock and consent and approval ot State Auditor.
ot to lend to auy association, corporation or individual or to allow any a, sociation, corporation or individual to become indebted to any bank for more than :fifteen per
cent. of ao-gregate amount of capital ~tock actually paid in and of
the permai1ent :-nrplns fnnd of aid institution. Dii,count of bills
of exchiinge drawn in good faith against actual values and disconut of commercial paper actually owned by the person negotiatin~ same not coni--idcred borrowed money.
hall not loan or discc>1mt on own stock nor purchase or bold such shares unl e s such
security sbal1 be uece ' Sary to prevent lo R. 'hall at all tim have
on lmrnl in avnilable funds twen ty per cent ot all immediate liabilitie""; one-half muy be balances due from olvent banks, one-half
cal'h on hand.
Public Examiner ball at lea.ct once in each year visit, without
prior uotice. each of the banking, Raving and monied corporations
created und r the laws of the tate of 1\Iinn ota and thoroughly
examine into the fin an cial condition and report to Governor.

COM"i\IERCIAL LAW.
Acl{nowledgm ents . Deed and mortg11ge nrn t be signe d,
sealed and acknowledged by the granter, and attcRted by two witnes e . Wit:hin the tate a h.nowledgment may be made before
any Judge or lerk of a conrt of r cord, Ju tice of the Peace,
otary Public Rcgi ' ter of De d , ourt ommis ion er or . , ounLy
A nditor. Without the tate, but within the Unit d tate , by
,Jnd~e or Clerk. of court of record, Ju tice of the Peac (whoee
certificate mu t be authenticated with c rti:ficate of Cl rk of

611

Court) and Notaries Public, al o by Com.mis ioner in any of the
States or Territories of the United State , duly appointed and
commissioned by the Gov rnor ?f thi
tat~. WhPn . a married
women unite with her husbaud m the execut10n of an m trunu•nt
she must be described in the acknow·Jeagment a such. In foreign
countriel! before any :Notary Public, Mini ter, on ul or other
Diplomatic or Commercial Agent of the United tates there accredited and re ident. Taxes mu t be paid before a deed can be
recorded.
The following forms of acknowledgmen t may be used: (Begi_n
by caption t pecifying State and place where acknowledgment 1s
taken .)
1. In case of natural person acting in bis own rfoht:
On 1his .... .. day of ...... , 1 .. . befo, me personally appeared
A. B .. tom know to b the person de~cribed in and who executed
the foregoing iw-trument and acknow ledged that be executed tbe
same a hi free act and deed.
2. In case of nar ural per on acting by attorney:
On thi.
.. day of . . . . , 18 .. . before me per onally appeared
A. H., to m e known to be the per1-on who executed the foregoina
instrum ent in behalf of C. D , and acknowledg d that he executed
the 1mme as the free ace and deed of aid C. D.
B. In case of corporation -:
On thi . . . . day of . . .... , 1 .. , before me appeared A. B .. t o
m e per.,onally know·n, who being by me duly ~worn did ay tbat he
is tbe president (Or other officer) of (de cribing the corµor a tion) and
that the seal aftixed to fore~oing in tnune1 t i::i the corporate seal
of i.;aid corporation, and that said instrnmen t Yrnf' igned and s aled
in behalf of "aid corporation by 1:1,uthority ot its board of dirt'ctors,
and the said A. B. acknowledged aid instrument to be the free act
and deed of said corporation.
Assignments must be in writing sub cribed by debtor or debtors and acknowledged and filed with the Clerk of the District Court
in the proper county, and if filed within ten days of tbe levy of an
attachment, garnishment, etc. releases the s«me. Debtor must
file inventory of all property within ten days after filing a signment. A ignee must give bond with two or more sureties
to be approved by Judge of District Court in double the
amount of property inventoried.
laim mu t be verified by
oath of the party, except claims of the United States or State.
of Minnesota. Debts are paid in the following order after
paying co t and charges of a ignment: First, debts due the
United ..,tates and the State of :Minnesota, and all taxes levied
and unpaid, to be paid in full;
econd debts owing for wages
of servants, laborers and m echanics and clerks for labor and
service performed by them within three month next preceding
the elate ot assignment, which are paid in full to the exclusion of
all other indebtedness if there be lulicient wherewith to pay the
same in full. If not, they ball be paid pro rata. If an insolvent
debtor confesses judgment, makes a conyeyance, does any act for
the pnrpo of preferring any creditor, or omits to do any act for
the purpo e of pr venting any creditor from obtaining a preference, or does not within ten days after a levy upon his property,
make an a signment for the benefit of all of his creditors, or institute proceedings to obtain a rel ea e of execution again t him, tbt>n,
or at any time within sixty days, on or more of his creditors having claim aggregating $200 may petition the Court for the appointment of a receiver for all of the debtor's property except such
is exempt by law. Upon the appointing of an as ignee or receiver,
all levies upon the debtor's property shaJl be withdrawn, unl e s
the assignee or receiver deems best to have such levies remain,
but such levies ball be for the benefit of all the creditor . Where
the complaint upon which judgn1eut is bu ed was filed more than
twenty dnys before judgment rendered in the conn y where the
debtor resides, and an execution bas been issued upon said
judgment, and levy made, nch levy shall uot b e aflel ted or
Yacated. Any debtor who confe se' or suffers judgment to
be rendered again t him for the purpose of preferring any
creditor, may be fined not to exceed $500, and, in case he
fail to pay the fine, may be imprisoned not to exceed six
months.
~onveyances and paym ents made by an in olvent
debtor ,Yithin nmety days of in olvency, in contemplation of
insolvency, to parties having reasonable cause to believe the
debtor to be insolvent, are void, and may l>e rescinded by
the a signee or receiver. All nits may be brought in the name
of the assignee or receiver. Appeals from ordere of a signees
or receivers disal1ow1ng claim may be mad to the District
Court. The assignee mu st, within ten days after disallowing
a claim, notify the creditors. As ignee and receivers may be
removed for can e shown, or upon a petition of two-thirds of
the creditors, in number and amount. No creditor is entitled
to share in the distribution of the estate, unless he shall
tirst file a release of his claim; provided that creditors may
allege and prove fraud and can then come in and hare in
proceed without filing release ; but if he fails to file and
relea e claim the same is not barred hy settlement, but creditor can take judgment and coll ect against per onal or real e tate in future. The assignee or r ceiver shall publl ~h notice of
his appointment, and ball mail notice to each creditor. and the
creditors shall file their claims within twenty days after notice
published. The a ignee or receiver ,_nall distribute the e tate in
the following order: I Rt. Co t of proceeding. 2d. Debt due the
United States. 3d. Debts due the State of Minnesota. 4th, Taxes
and as e sments. 5th. 'lerk , senants and laborers for labor
performed within three.months, in full, not exceeding $50 to each.
The balance shall be distributed pro rata between the creditors.
Assignee or Rect>iver Fees. Fee to be allowed to a signee
or receiver hall not, in ordinary ca es, xceed ten per cent. upon
amount rec ived up to $1,000; five per cent on excess of$1,000 up
to $5,000; and two per cent on xces of $5,000. Allowances for
attorney' fees shall not exceed $150 when gro s proceeds do not
exceed $::3,000, llnd when they do exceed $3 00 or in ca e of extraordinar litigation the court shall allow rea onable amount.
Every a signee, rece_iver, or manager of any property appoii t ' d
by a Comt or managmg the same under th direrti u of anv Court
of this Stat m11y be ued in respect to any act or tran ._ action of bi
in carrying on the business connect1 d witb ._ ucb property or corporation withont previous leave of Court -any judgment i-e ,. rt:>d in
u ·b ~nit against any a signee, etc., shall be puid a part of the
expen es ofmanaging..said or a.oerty.

ung1n-a 1 rrom
UNIVERSITY OF WASHINGTON

619
A

BA KING A D

O)Il\IERO IAL L W -

i o-n men t _made by a co-partnersh ip of which a minor is a

member or of which there hall be special partner _,hall be valid
if exe~ut~d. by the adult o i2eneral partner, and hali pa'" al , unexempt md1Yi~ual property of the adult or gener l partner and all the
co~partner_,h ip properLy of eu h firm, and Court may appoint receivLr, and property shall pas to peceiver in like manner.
Attachmen ts may i ue from Ju tice' Comt upon fl.lino- bond
in double the_ valt~e of the property, and attidavit of plaiifriff or
some per on m hi behalf that he has o-ood reason to believe:
1st, that. defendant_ i a non-~·e ident cirporation; 2d, that defendant 1 not a re 1dent of this tate and has not re icled therein
for three month preceding the time of makino- the attidavit· 3d
that defendant has ab conclecl or i about to b ab cond from' th~
tate; 4th, that defendant ha removed or is about to remove his
property out of the tate with intent to defraud hi ' creditors· 5th
that defendant re ide in any other county and more than 100 mile'
from the residence of the Justice; 6th, that defendant contracted
the debt m~cler fraudulent representatio ns; 7th, that defendant so
conceal him elf that the . ummons can not be served upon him;
8th, that ~efendant has, or i a~out to. fraudulently convey or dispo e of hi property so a to hmder, delay and defraud his creditors. In attachments in Di ' trict Courts plaintiff's affidavit mG.st
state fact and can not be made on information and belief as in
Ju tice Courts. Arrest for debt is not allowed in this State. No
distres for rent.
Bills of Lading. Bills of lading and warehouse receipts are
?eclared by statute t~ be ne_gotiablt·, an_d may ~e transferred by
mdorsem ent and deln-ery of such receipt or bill of lading and
any person to whom uch receipt or bill of lading may be
tran !erred s_hall be ~eemed_ to be the owner of the goods, wares
or merchandise tbeiem specified, so as to give security and validity
to any lien created on the same, subject to tbe payment of freirrbt
0
an~ charg~s thereon, proYided all ware hon e receipts or bills of
ladmg which shall have the words "not neo-otiable" plainly
written or printed on the face thereof, sball bt exempt from the
provisions of said law.
Bonds, Recognizan cf's, Etc. Legally chartered companies
aut~10ri~ec1 by the Jaws of any State to guarantee bouds or other
obllgat1011s may be accepted as trnrctr ou any bond recognizance
obligation, stipulation, or undertaking, anct all he'aclti of depart~
mcn~s. co,nrts, 1,ndges. boards, and municipalitie s, and any and all
public officers, State. couuty, town, or mn111cipal, whoee dnty it may
be to accept or approve the sufficiency of any such bond, etc., may
accept aud approve the same when executed or guarant1:ecl solely
by such company. wh~ther the law requfres more than one surety
or not. Such_ c~mpames must, however, first procure tbe certificate
of the Comm1ss10ner of Insurance of this State authorizing it to do
'
busine s therein.
Corporatio ns. Any number of persons not less tban five may
as~o~iate themselYe_s and bec_omc incorporated for the our pose of
bmldmg a1.d carrymg on ra1lroads and other semi-public works
and bnsiness, witll power of eminent domain.
Any number of person not less than three may be incorporated
for the purpose of engaging in any lawful bu:iines . The miniu1um amount of capital stock shall in no case be less than $10 uoo
and shall be divided iuto shares of not less than $10 nor more thad
$100. except the capitHl stock or l\lutual Building and Loan Associations m ay be divided iu to Rhares of $200 each. The capital
stock and number of shares may be increased at any reo-ular or
special meeting of the stockholders .
The Articles of IncorporaLio n shall contain:
1. The name of the corporation, the general nature of the bus ines . . , and ~he principal place, if i1,ny, of transacting the same.
2. The time of commencem ent and the period of continuance of
said corporation.
3. The amount of capital .:tock of saii corporation and bow to
be paid in.
4. The highe t amo11nt of indebtedness or liability to which
ai<l corporation shall at any time be ~ubject.
5. The name and placeti of residence of the persons forming
such a .;ociat en for incorporatio n.
6. The name of tbe first board of directors, and in what officers
or clirecror tbe go...-ernmcnt of' the corporation anrt the management of its affairs shall be vested, and when the same elected.
7. The nnmber und amount oJ the shares of tbe capital stock of
said corporation.
Suid rtfol e~ of Incorporatio n are required to be published for
one wed-: in ,.ome newspupcr printed and published at the capital
of the 'tatl', or in some newspaper printed and published in the
county wllcre said corporation is organized, and the same shall be
filed for record in the office of the ecretary of State and also in
the ofliee of the Hegi 'ter of Deeds for the county wh re said corporation ha it principal place of business.
Each btockholder in any corporation (excepting thoRe organized
for the pnrpo e of carrying on any kind of manufacturi ng or
mechanical bn ines.·), hall be liable to the amount of tock held
or owne<l by him. Thi.· is a constitutiona l provi ion and i · lleld to
hnpoBe a donhle liability on the stockholder of all corporattons
'
exeept manufacturi ng corporation .
Courts. Tenns ancl ,Jurisdiction . District Courts, holding
one or mor term . a year in each organiz d county (one every month
in Ram"-CY 'ounty), have original jnn diction 111 all civil actions
involvin.it over $100; in all action where a Ju tice has not
1nri diction, witbont regard to amount; and in all equitable
in term time or
action , and proceeding , and may i ue proce
vacation throughout the 'tate, returnable to the proper county. A
Probate onrt with u ·ual power i. e tablii-<hecl in each oro-anized
county, and bold term on the fir, t Mon lay of each month. J~1 tice's
jnri diction, $100. A M11nicipal ourt is e tablished in the cities of
t.Paul, 1inn apolis, t11lwater. fankato, Duluth, Brainard,Wa eca
and Winona, and in all villag • of over 3,000 inhabita ts, which
i a court of record, with juri diction co-exten iTe with the
in which they are everally ituat d, and po se sing
counti
g~n~ral power of' (?ommon Law ourts, ex epting quity juri d1ct10n, m matter m controv r y wh r , the amount involved
t. Paul 1nnicipal our t is ue no execudo not exceed $500.
tion, but judgment. arc transcripted to Di trict onrt and enforced
by its proces
Depo ition . Depo ition. may be taken at any place within
or without the State upon notic · given t o the oppo ite party giving
1

0

II

E OT

one day for e,,ery hundred mile excluding nnday . and one t1ay
Ior prepa ration. T h same may be taken before ttny officer authorized to administer an oath. The same ._ ball be taken at the time
an d place specified in the notice or within one hour tb.ereafter; and
the examination of some one of the witnes e ' named in the notice
mnst be actLially commenced. In case tbe oppo::,ite party appears
postponemen t mu t be arranged by writ te n stipulation to be
attached to and returned with the tipulntion. In a e the oppoite parcy doe,.; not appear tbe adjonrnmeu t , if any, mu t be on v
from day to day ( unday excepted noel the record hould staft•
each adjournmen t and that it was nece sn rilv had. To each witness must be administered an oath in the folfo,, ing form: '' Y l'll
do solemnly wear that tbe eddence yon hall give relative to the
cau e now under con ' ideration hall be tb "hole truth and nothing but the truth, so help you God. ' The testimony must be
written by the officer or some one under his lire 'tion, and when
completed it mu t be read over to the witne s by uch officer, a11d
then if the witne s desire . . to qualify wh9.t i written or adt1 thereto, such qualification must be made not by era ions or interlineatious, but by aclcling the same at the end. When all i' completed
to the satisfaction of the witness he mu t snbscrib ' hi ' te timony
at the end and he mn . . t al o write his name upon each piece of
paper upon which any of bis testimony appear . \\'here books of
account or let1er-press copie of letter , etc., arc admitted a evidence the production of said books or l tter-pres copie . before
any officer taking any deposition, shall be held to be equivalent to
producing the same at the trial, and copie of the entries or other
things therein contained, desired to be introduced in evidl'ncc, may
be made and attached to th ' deposition n exhibit ' , and hall b·e
evidence of like for ce and effect a ' the book or letter-pres , copie
themselvc .
Execution s may issue from District Court at any time within
ten years af'Ler judgment, and to any county where a transcript has
been docketed. Executions are returnable in ixty day , but may
be renewed for sixty days at a time for any length of time, upon
the request of judgment creditor or his attorney. Personalty is fir t
levied on, and is sold on ten days' notice; real e tate alter r:-ix
weeks' publication. In Justice 's Courts execution may i sue ten
days after entry of judgment, returnable in thirty day , and renewable from time to time for periods of thirty clays. E xecutions in
Municipal Courts the same as in Justice Courts, except that they
!11-RY i ssue at once. In _courts of !·ecord six months' stay
ts granted on defendant filmg bond with two free-hold sureties
approved by the con.rt, conditioned to pay amount of judgment
with costs. and interest at the rate of ten per cent. per annum.
Stay in Justice' s Courts may be had in same manner, where
judgment is under $!10, one month; $10 to $25, two months;
$25 to $50, three month ; $50 to $75, four month ; over $,5,
six months. Real estate sold on execution is subject to redemption for one year from dat e of sale. Attorney of Record can
satisfy judgment at any time within two years after entry.
ExE>mption s. Surviving husband or wife holds homestead free
from debts of deceased for life of survivor. Homestead of eirrhty
acres in country; half an acre if in city, town or village not in
corporated, and of le s than 5,000 inhabitants, and one lot i1 in
larger cities, towns or villages, with buildings thereon, ·without
regard to value. Wearing apparel, books, picture and furniture,
up to $500; three cows, ten ' Wine, twenty sheep, and wool from
the same, a yoke of oxen and a horse, or, in lien thereof, a span
of horses or mules; necei:sary food for ' tock for one year; wagon,
plows and farming utensil up to $300; necessary 1::1eecl grain for
the actual personnl use of the debtor for one een on, to be elected
by him; not, however, in any case to exceed the following kinds
and amounts respectively : viz., :fifty bushels of wheat, fifty bu hels
of oats, fifteen bushels of potatoes, three bushel of corn and
thirty bush els of barley, and binding material ufticient for u'se in
harve tiug the crop raised from the seed grain above pecified.
The tools ancl instruments of a miner, mechanic or other person
and stock in trade up to $400; library and instrnmeuts of a pro~
fessional man; $25 wage of laboring man or womnn, for services
rendered within thirty day preceding the is ' U, of proce . Al o
where the debtor i a printer, publisher or editor of n newspaper'
all the presses, stones, type, ca e and other tool - and implements
not exceeding $2,000, and stock in trade up to $400.
Inte1·es~. Seven per ~ent. i_s t~e legal rate of intere t upon
every legal rnclebtednes s, mcludmgJnd gments uncl account . Since
July_ 1, 1879, the. highest rate of mterest ~llowecl to be taken by
special contract 1s ten per cent. All usunou ' contrncts are void
and Court will decree cancellation . Wberc usuriou ' interest ha~
actually been paid t e entire in erest may t er •eoY red in a civil
action, half to go to party brin o-ing a tion, and half to go to
County Treasurer for benefit of Public chool , with all interest.
Judgment s. If no defen c i made, j uclgment can be obtained
at the expiration of twenty days in District Court, and upon being
docketed in the office of the Clerk of the court, they bt'come liens
upon all real e tate of the debtor in the county where docketed
owned by him at that time or afterward acquired, for ten years
atter date of docketing, and can be enforced during that time by
execution again t the real or per on al property of Judgment debtor.
Judgments in Municipal Courts mHy be bad nt gencrnl t rm 1 which
are held twice each month, where action is begun at lca_,t ix days
prcviou to term and may be dock ted in Di trict Court and
become a lien when the amount exclu iv of o t xceecls $10.
Al o judgment of Unit d 'tate 'ourt become lien , a aboTe.
when docketed in pro er conrt.
tatute give ' li n for ,vork and labor performed or
Li 11 •
skill fnrni bed by mechuni on any building, boat or ve el, and
for materials furnished for the erection! alteration or repairing of
any building, boat or v el , or on anyLhing mannfa tured or repaired to tbe ext nt of th e amount of repair or material ; al o gives
to servant and cl rks a lien on per onal prop rty, not to exceed
$200 in amount, for work pNformed within ix month next preceding filin g. of li ~- All li n mu t b filed within ninety days
from date of la t item of work or labor or material furnished.
Limitation s to Suits. On contract , expre s or implied, six
years ; on judgments, t n y ar ; to for ecl e mortgages, fifteen

years; r eal action , :fifteen years.
promise in writin g. Original from

Reviver: Part p ayment or new

UNIVERSITY OF WASHINGTON

BANKING

ND COMMERCIAL LAWS-MISSISSIPPI.

Marrie<l Women. All property acquir d by wife before or
after marriao-c remain b r eparate e ·tate, neither controlJed by
nor liabl for the debt of her husbnnd. Marri d women are held
on their contra t and bound by them th ame a if unmarriedi
except, a married woman can not el1 her real e tate, or make any
conv yanc of land other than a mortgage for the pnrcha e money
or a lea e for three years or l
. without her bu band join in the
conveyance. The deed of a marri d woman to her bu band, or vice
1'ersa, i ab olutely void. Estate in i:lower and by the curtesy
are aboli ' bed, and th urviving wife or hn band i ' entitled to the
home tead for life fr e from debt of the de en ed, and to one
equal undivided one-third of all other land of which the deceased
was eiz d durin~ covertur , ubj 'Ct to payment of lawful debts
of the decea ed, out free from any te tamentary or other disposition.
Mo1·tgages on real e tate mu t be recorded, acknowledged and
have two witne se , and are foreclosed by action or publication.
A year is allowed for redemption. Chattel mortgages are void as
against creditor and sub qnent morto-agees and pnrcha ers in
good fnith, unle
acknowledged and fi1'ect with the Town or City
Clerk, both where property i ' situated and where mortgagor resides. They are then valid, but cea.,e to be notice after two years
from date of maturity, but may be renewed by filing affidavit, stating
mortgage ' interest and amount unpaid, which renewal operates
to extend mortgage for one year from date of filing affidavit. Interest of mortgagor ubject to ._ ale on execution, and purchaser
is substituted in place ot mortgagor, and acquires rights of redemption.
Notes and Bills of Exchange. Commercial papel' iA that
cluss of paper usually designated a such by the law or merchants;
viz., note , bills, drafts, etc. Paper n eed not be made payable at
any particular place. On all bills of exchange payable nt sight,
or at a fntnre day certain, and on all negotiable promissory notes, orders and drafts payable at a future day certain,
within this tate, in which there is no express stipulation to the
eontrary, grace i-s allowed of three days. No grace ou demand
paper. Dnmages fiYe per cent. on domestic and ten per cent. on
for eign paper prot~ ted. Note obtained by fraudulen_t rep~esentation without negligence on part of maker void; question oi negligence one of fact for jury. Bills of exchange, drafti::, promissory
notes and contract dne or payable, or to be executed on Sunday,
Thanksgiving day, Good Friday, Christmas day, New Year's d_ay,
the 22d clay of February, the 4th day of July or on the 1ollowrng
dav, when either of the four days laflt mentioned occurs on Sunday,
shi-ill be payable or performed upon the bu iness day next preceding such days and in case of non-payment or non-fulfillment shall
be noted and 'prote"ted upon such preceding day, bnt _notice ~f
dishonor, non-payment, or ~Kn-fulfillment need n~t be given until
the business day next follo,Ymg the days above spec1fied. February
2Zd, 30th day of l\Iny, mid fir:st Monday in September (Labor Day)
are the only statutory legal holiday .
Ri~ht to Hold Property. ltshall be unlawful for any person
or persons not citizens of the United States. or ,vho have not lawfully
declared their intention to become such citizen"; or for any corporation not created by or under the laws of the United tates, or some
State or Territory ·to hereafter acquire, hold or own any real e tate
so hereafter acq1;ired, or any intere t therein, in tlli' State, except
such a may be acquired by devi ' e or inheritance, or in o-ood faith in
the ordinary cour e of ju tice in tbe collection of debts he~,~~ter
created, or to the foreclosure of mortgage . Th~ above ~roh1b1tion
do snot apply in casE>s wh ere right to hold land m the Umted States
is secured by existing treatie to citizen~ of f ~reian countrie , nor to
actual ettlers upon farms of not more than 160 acre , who may settle
thereon before Jannarv 1st, 18 !=I. No corporution or a 'Ociation,
twenty per centum of the stock of which i ' or may be owned by any
person or persons, as 'ociation or orporations not citizens of the
[ nited States shall hereafter acquire, hold or own any real e tate in
this State. N'o corporation, other tl_rnn tho-e organized for c_on tructioo or operation of rail\\ ays, t11rnp1kes or canalt-i ball acqmre, hold
or own over 5 000 acre ' of land o hereafter acquired in this tate,
and that no r~ilroad, canal or turnpike corporation hall hereafter
acquire, hold or ?Wn other than may_ be necessary for tbe proper
operation of it railway, canal or turnpike, except lands granted by
United State or State. All lands acquired, held or owned in violation of tbe provision of this act shall be forfeited to this State. It is
the duty of tbe Attorn y General to enforce any such forfeiture by
due process of law.
Suits There i only one form of action, and all c~vil. actions
must be prosecuted in the name of the r eal party I? ~nterest,
except suit by aclmini 'trators, etc. Full namP- of plarntiff must
be furni bed. Proce
to commence suit in the Di trict Court
mnst be served on the debtor twenty days before judgment can be
taken by def a ult, except act ion flir divorce, when_ um~ ons must
be served at least thirty day before d fendant will be 1_n default,
and summons in divorce may be per onally er-red out _ide of ~h_e
Stute. A deposit of $3 with Cl erk of Court for costs m ~11 civil
actions hereafter begun is required before entry of act10n <?n
docket (Hennepin and Ramsey county except~d). Process m
Justice's Court must be served not less thn;n six n~r _more than
twenty days before return day.
nmmons m Mumc1pal Court
must be erved at least six days before term.
Taxes become due and payable on the first Monday in January
in each yenr; per onal property ta~ delinquent .March 1; real property tux delinquent Ju □ el. ' benff to levy d1 tres· on personal
property after April 1 and 1,ell for tax. A penalty of 10 per cent.
attaches top r onal property Murch 1. A p nalty o!' 10 per cent.
attt1che to real e tat.e June 1. On the first Monday rn January an
additional 5 per cent. attache to delinquent real e tate taxes. Real
property sold on first Monday in .May; two years r ~emp~ion
allowed· a notice must be erved upon owner 90 days before time
of rede~ption expire
Redemption by minor heirs t wo years after
obtaining majority.
Will . EYery p er 011 of full ~ge ancl ."' onnd mmd may devi~e
and dit-po e of any property b ' his last :'·111 aud ~e tam 1~t m wnting. AJj(i auy nrnrried wornau may d nfl~ and d1~pose ?i an1 r al
or p r oual prop rty h ld by her. or to which. he _1' nL!tled m h~r.
own right and rn_ny alt r _or r :voke the sa~n rn_ !1k 1Mm~er as 1(
sh w re mimarn cl.
aid wills hall be m wntmg au~l signed at
the nd th reof by tbe tcstat r or by eorne p r on m h~s pr~sen9e
and by his expre direction, and attested and eubscrib d m his

613

presence by two or more <?mpetent wit!1 ~s e . . ll deYise , legacie , or ift made in any will to a nb cnbmg witnes the_re_to h~ll
be voirl unle
th re are two other competent sub cnbmg _w1tn ses to the same. Tbe surviving bui-band or ,Yife shall be entitled
to bold for the term of her natured life. free from any t 'stamentary
or other di p -ition thereof, to,, hich uch . urvivor hall not have
ae ·cnted in writino· and free from all claims on account of the
decea d tbe bome~tend of uch deceaeed and uch surviYing husband or ~yife hall al o be entitled to and hall bold in fee imple
or by such inferior tenure a deceased was at any _t1~e during <!?verture s ized or po e l:<1 thereof, one equal undind~d oue-~hll'd of
all other lands to which th decea ed was at nny tune durmg c~Yerture seized or pos -eesed free from any testamentary or other di_spo._ition tbe1eof to wbich sucb sn rviYor shall not lrnve a ented m
writil10- but 1-:nbject in it:5 jL1--t proportion to the other real estate to
the 1rnyiuent "'of such debt · of the deceased as are not paid from the
persounl estate.

MISSISSIPPI.

(Revised by

BR.AME

&

ALEXANDER,

Attorney at Law, Jackson.)

'l'here are no provisions in regard to bank in the con titution,
and uch in stitutions are governed by their charterl4 and the common law. There are, however, some statutes to prevent insolvent
banks from continuing bnsine s. There is no system of offi~ial examination but all bank . except National bauks are reqmred by
statnte to ~ake a report, not le s than four tim s each year, to the
Anditor of the State. And the Auditor shall make requi ition on
all bank for these reports to be made as of dates prior to the date of
the reqni ition and such elate to be known only to him elf. Such
reports shall be Yerified and, besides being furnished the Auditor,
shall be published in full in a new pap r of the town or city where
the bank is located. '1,heir resources and liabilitie hall be stated in
such reports. ( Code 1892, sec . 2,W.)
Acknowledgments or proof of deed to property in this tate by
person in a foreign country rnay be made before any court of
r ecord, or the Mayor or hief ::\Ingistrate of any city, borough or
corporation of nch country where the grantor or witne:'-se reside,
or may be; or before any ('ommissioner m such country appointed
bv the nowrnor of this Stat e. or before any Ambassador, Foreign
~iinistcr, Secretary of Legation. or Cornrnl of the United States.
The certticat ~hall ho\\' that the party, or party and witneE>s
were iclent Hied before the officer and that the party acknowledged
the exerution of tb e instrument, or that the execntion was duly
proved by the witnes or witnes~es. (Code H!9:2, ec. 246i.)

COMMERCIAL LAW.
Acknowledgments in the State may be before any Judge of the
Snpreme or ircuit ourt, any Chancellor, lerk of a court of record
under bi seal, Ju tice of the Peace, Notary Public, or member of tbe
Board of Supervisors. Acknowledgments in another "'tate may be
certified and proven before any of the Judges of the Supreme
Court of the United Statei\ or any District Judge of the United
States, or a Judge oi the ' upreme or Superior Court in any State
or Territory, any Ju tice of the Peace, or otary Public whose
official character shall be certified to under the eal of some
court of record in his county, or by any commissioner residing in
such tate or Territory, appointed by the Governor of :Mi ' Si sippi,
or a Notary Public or a Cl erk ot a court of record hasing a seal of
office. [Code 1892, secs. 2-!6-!, 2466.]
Assignments and Insolvency. No in olvent law. Debtor
may make a ignment to secure "reditors, and may prefer creditors,
but no benefit, direct or indirect, mny be re erved to the debtor.
There is no provision for the discharge of a debtor on his making
an assignment. There is no ' tatute ~oYemino· partial assianments.
In ca es of general a ignrnents, where the value of the property
exceed,:; $1.000. the assign emu ' t giYe bond and admini ter the trust
in the hancery ourt. Schedule ancl inventories are to be filed.
Creditor may file petition, and, by bowi11g as, ignmeut is fraudulent, shall have priority for hi debt. All debts mn t bee ta11lished
to the atisfaction of the Court. Preference not prohibit d, and
may be made. Th nssignor must file chedule of debts and assets,
and mu~t make oath to ame. (Code 1 '92, sec . 117-1:24.)
Attachment. The property of a debtor who is a non-resident,
or who removes or i about to remove himseli or property out of the
tat ; who absconds or conceals himself· or who incurred the debt
in conducting the business of a ship, teamboat or other water
craft in some of the navigable waters of this tat ; or who a signs
or di ' poses of his property, or ome part thereof or i about to assign or dispose of hi property with intent to defraud his creditors·
or who has property or right in action which he cone al and un:
justly refn e to apply to the payment of hi debt · or who has
converted or is about to convert his property into money or evidences of debt, with the intent to place it beyond tbe reach of
creditors· or who ha fraudulently contracted the debt or incurred
the obligation for ,Yhich ui t has been or is about to be brought, may
be attached. Non-resident creditor have the same right of attachment as resident creditors, whether the debtor be resid nt or nonre ident. Attachments constitute liens on the property in the ord r
in which the writs are levied. and are to be satis:fi cl in that order.
Plaintiff mu t furnish bond and make affida it as to one or more of
the grounds ot attachment specified above. Tb suit does not
abate on verdict for defendant on a pl a d nying grounds of
attachment; but judgm nt may be rendered 0n the d bt, to be
offset by any verdict of damao-es in favor of def ndnnt f r wrongfully uin g out attachrn nt. Any of' tbe orher er di tor may int rven and contest ground of attachment, if def ndant mit to do o.
Garnishee proces will i sue in aid of attachment or execution.
No arrest or impriso~JgiY,1a~ffi:Jr91ebt in :Mis i sippi.

UNIVERSITY OF WASHINGTON

614

BA KI G AND COMMERCIAL LAWS-MISSISSIPPI

In addition to tho..,e named above, the follovi'ing ground are given
by the Code of 1 82 : '' 9. Tbat the defendant i buying, selling, or
dealing 111, or ha witbi n ix month next before the, uing out otthe
attarhment, directly or indirectly, bought, old, or dealt in f ture
contracts, commonly called 'futures.' 10. That he is in default for

public money, due from him a, a principal, to the tate, or some
county, city, town, or village thereof. 11. 'That defendant is a banker,
ban.king company, or corporation, a nd received deposits of money
knowing a the time thnt he or it was insolvent: or has mu.de or
publi hed a fal e or fraudul ent statement a to his or its fiuancial
condition.' Attachments for debts not due allowed for last five
ground - or when the creditor makes affidavit that he has just cause
to believe that the debtor will remove himself or his effects out
of State before debt will be due with intent to defraud. (Code
1892 sec . 1:25- 177.)
Bills of Exchange must be protested, and notice of non-payment given substantially as at common law, to bind parties
entitled to notice. Promissory notes in this State are not required to be protested, but demand and notice are necessary to fix
liability of parties secondarily liable. There is no law defining
commercial paper. All notes, bills, drafts, etc., are assignable, and
suit may be maintained in the name of the assignee; bnt defendant can make all defensefl which he had against payee before
notice of aAsignment. (Code 1892, sec. 3503.) Foreign bills of
exchange payable out of the United States, protested for nonacceptance or non-payment, draw ten per cent. damages and
legal interest; bills drawn payable in the United States,
protested for non-acceptance, draw damages at the rate of
five per cent. besides legal interest. Checks, drafts and notes
payable on demand, are not entitled to any daye of grace;
while !lotes, bills and drafts, foreign, as well as inland, drawn
payable at sight or time, are by the laws of this State enti tled to the usual days of grace, and in this respect are the same
as by the law merchant. Where a bank 1;heck is expressly made
payable on a future day, or where, by the way it is drawn, it takes
on the character of a draft or bill of exchange, the weight of authority is that it is entitled to days of grace. Domestic bills of
exchange drawn on and payable in this State for twenty dollars
or upwurds, must be protested for non-acceptance or, if accepted
for non-payment, they are governed by the same customs and
usages as foreign bills of exchange, but no damage accrues. When
the day on which any bill of exchange or promisEiory note should
be presented for l:lcceptance or payment. according to its terms,
shall fall on Sunday, New Year's Day, Fourth of July, or Christmas Day, it shall be presented on such day next before the day on
which, by its terms, it is presentable, as shall not be one of the
days herein specified.
Bills of Lading-. By statute, bills of lading, and warehouse
receipts or rnstruwents in the nature thereof, are made conclusive
evidence in the hands of every bona fide holder, as against tbe person or corporation issuing the same, that the property was actually
received for shi1-1ment or storage.
Corporations. Under the constitution corporations can only
be fonnecl by general laws. The legislature may alter, amend, or
repeal an y charter granted after November 1, 18!-l0. provided no
injustice is done stockholders. Charters can not be granted for
longer time than ninety-mne years. Existing corporations rereivini; any benefit by amendment shall come nnder the operation of
the foregoing provisions of the constitutiou. Unless otherwise
provided by lavv, a corporation may hold property for its purposes,
n ot exceeding in value $250,000. Banks and manufacturing companies may hold $1,000,000. Coq.,oratiorn; can not employ money or
assets otllerwh,,e thnn in its legitimate business. No restrictions
on railroads as to amount of property.
Directors of manu acturing and trading corporations are personally liabl e for excess of debts over capital paid in. Stockholders
of all corporations m-e liable to creditors to amount or nnpaid subscriptions to capital stock. Mortgages executed since Nov. 1, 1880,
on income and rolling stock of railroads, shall be subject to liabilities incurred by the road as a carrier, and to claims for damages to
person or property.
Foreign corporat ons may do buRiness in this State, and may sue
and be surd here. Foreign insurance companies, by agent, can
not do bm-ine&i in thiti State without mak111g annual statemen1 s to
the Auditor, and becoming liable to suit here. All railroads most
be built, operated, and used by corporations created under the laws
of thi State. Cotistitution 1090.
Court . Ter~ and .Jurisdiction. Circuit Courts, holding at
least two terms a year in each county, have jurisdiction for the
collection of all cluim$ over $200. Chancery Courts have full equity
and probate jurisdiction and are held twice a year in each county.
Justice' H Court have jnri diction for the collection of debts or
claim for damages up to $200, and shall hold terms at least once
each month.
Depositions. Taken on written interrogatorie~, filed in the
Court where they are to be m,ed; ten days' notice to be given of
issuance of co.mmis ion. lf party i · absent and has uo attorney,
:fllmg int 'IT0gato1 ie ' ten clay nfficient notice. Commission to take
depo ition of witne s out of 'tate may be to oue or Reveral commisslcmer by name, in tile alternative, or to any Judge of a court of
record, ,Jut--ticc of th Peace, Ma yo r, or hief Magi trate of a city
or town, commis io1Jer appointed by the Governor of this State, or
otller pert-on uuthonzed to admini ter on.tbs by the law of the place
where tbe cl ·poRit ion i ' to be tak •n. Tbe officer shall wear the
witne: tote tify the trutll, and hall impartia lly :rnmine him ou
the interrogatori ·s. 'rhe testimo11y hall be fairl y writt •n down by
tbe officer or witnesR, or by a clisintere tcd pn on in the prc.--ence,
and shall be ,rnb:cl'ibecl by tll• witnc:,,s. Dc po ition hall then be
certified ancl 'ea led up by tb C' officer, ancl transmit tcd in a :.:fe and.
con veui ~nt manner LO tli~ Conr t wher' the ame i to be Ll ed.
Officen,' certificate hall be prima jacle evideuce of his character
and autlwrity.
Estates of Decedents. All claim again ta deceased person,
whether due or not, mu t be r gi tered within one year after the
first publication of notice to creditors to present their claims;
otherwise they will be barred; provided er d1tors failing to register
claims hall not be barred a to surplu after regi tered claims are
paid, if claim is pre "ented and proven before distribution. The
presentation of a claim and the regi tration thereof, as r equired

by law, stops the running of the general statute of limitations
as to such claim whether the estate be solvent or not.
Executions is ue in courts ofrecord within twenty day after the
adjournment of court for the term, unle s otherwi e ord ered by
the plaintiff, and in Justice's Courts af~er the lapse of flvE: daJ:S
from judgment rendered, nnle s recov_ermg. party makes affida':1-t
that he i in danger, by delay of lo mg his debt or !1emand, m
which ca e execution is nes forthwith.
o redemption of lands
or other property sold under execution or mortgage.
Exemptions. Re idence of househo1_der, male or f e~nale, being
a citizen of tllit- State, and having a family, 160 acre lll coun~ry,
or residence and lot in city, town or village, in no ca e e~ceeding,
with improvements, $2,000 in value. The proceeds of msurnnce
on property exempt by law, and the proceed. of the ale of exempt
property. Tht f ,illowmg per onal property_ i exempt: The ~ools
of a mechanic necessary for carrying on his trade. The agncultural implements of a farmer necessary for two male laborers. The
implements of a laborer necessary in bis usu'.11 employment. '.J'he
b ooks of a student required for the compl, t1on of h1s education.
The wearing apparel of every 1Jen,011. The libnuies of all persons
uot exceeding $250 in valne; also the instruD?-eots of . nrgeons and
dentists used in their profession not exceedrng $'250 111 value. The
arm s an'd accourtrements of each' per on of the militia of the State.
All glob t'S and maps used by the teachers of ' Chools, aca_demies, and
collegt s. The followin g property of each head of a fanuly, to be 1elected by the debtor is exempt: 2 work-horses or mule and 1 yoke
of oxen · 2 cows and caJves; 20 head of hogs; 20 beep or goats; all
poultry! all colts under three year::; old raised in this State by the
debtor; '250 bushel of corn; 10 bnshels of wheat or rice; 500 pounds
of pork, bacon, or other meat; 100 bu hels of cotton seed; 1 wagon,
and 1 buggy or cart, and 1 set of harness; 500 bnndle of fodder, and
1,000 pounds of hay; 40 gallons of sor_ghnm or mola!- e~ : '.,000 tallp3
of sugar-cane; 1 trngar-mill and eqt1;ipwents not exce~clmg $159 m
value· 1 bridle and saddle, and 1 side saddle; 1 se\\ mg machrne.i
household and kitchen fnrnitnr e not exceeding in value $200. Ana
the followi no· is exempL from garnishment or other legnl process:
The wages of every laborer or person ,rnrki11g for ·wages, being the
head of a family, to tbe amount of $100,_ ~1.n~ every other _peron to
the amount of $20: the proceeds of a hfe rn~urance ~oll cy, to an
amount not exceeding $10,000 uµon an~r one life, sh~ll. mure to the
party or parties named as the ben<:'fic1ar1es thereof. free from all
liability for the debtf.: of the person whose life was insured, even
though such µn son paid the premiums thereon; the proceeds of a
life in surance policy not exceeding; $5.000, payable t~ the executor
or adminbtrntor of the 111::;ured, shall inure to the heirs or legatees,
freed from all liability for the debts of the decedent; but, if the life
of the deceased be insured for the benefit of his heirs or legatee " at
the time of his deatll otherwise, and they shall collect the same, the
sum collected shall be deducted from the $5,000 and the excess of
the latter only shall be exempt. A householder having a family, residing in a city town, or village, entitled to $250 worth of personal
property to b~ selected by him, or the other arti~les specified
and enumerated abo~e . No p~operty exem~t as agamst purch3:se
money, but the same hable to seizure at the ~wt of tne vendor while
in the possession of the first vendee. Nor 1s any property exempt
from taxes. or for labor done or mate rials furnish ed or in ca e of
judgmrnt on a forfeited bail bond or recognizance. (Code 1892,
secs. 196:3-1986.)
Interest. The legal rate of interest is six per cent. p er annum,
but parties may contract in writing for ten per cent.; when ~ore
than ten per cent. is stipulated for, all interest shall be forfeited.
Judgments when enrolled in Circuit Clerk's office become liens
on defendant's property wit.bin the county, anJ. may be extended
to other counties by filing certified abstracts of the judgment. A
junior judgment creditor may ob~ain priority as_ to property leyied
on by him, if, after ten days notice, the se111or Judgm,·nt credit~rs
have f ailed to issue executions and point out the property. Lien
of judgment continues seven years.
Limitation s of Actions. Oven accounts, accounts stated and
verbal contracts, express or implied, three years ; on . all other
contrac ts six years; andav,rards of arbitrators,sixyears;Judgments
and decr~es rendered in another State against resident of thi ' , three
years; rendered in this, seven years; real actions, ten year~. Re".'i'yor:
An acknowledgment of the debt or new prom~s 111 wntmg.
Private seals dispensed with, except as to corporations.
1\'larried W 01nen retain their estate, real and personal, however
acquired. The common law disabilities of married women are
abrogated and married women have same capacity to make contracts and 'do all acts in reference to property which single women
have. Married women may dispose of property by wil lJ in same
manner as e:iingle women. Dower and curtesy are aboh 'hed. If
husband d~es intestate, leaving no children nor descendants of
children, his widow inherits entire estate, both real and personal;
but if husband have child or children or descendimts of same,
widow inherits a child's part. The same ruleR of de cent regulate
both realty and personalty. Husband aud wife must joiu in conveying or encumbering homestead.
Mortgages and Trust Deeds do not take effect as to creditors or purchasers in good faith ancl without notice until they are
delivered to the Clerk for record. Mortgages without power of sale
are foreclosed by bill, and there is no provi ion for redemption.
Chattel mortgages must be recorded, or po es ion of the property must pa s.
Sui ts. All distinction as to forms of action are abolished in this
State. Service rn nst be had both in Circuit and Ju 'tice's Courts
five days before the court sits.
All actions ex coritractu in the
Circuit Court in which the defendant has been per ·o nally served
with proces thirty d ays before the rettun day, actions to nforce
mechanic lien, actions commenced by attachment and actions of
replevin shall be triable at the return term. (Cocle 1 ~92, sec. 722.)
Taxes. Personal property is assessed once a year; real estate
every four years, and taxes constitute a prior lien on both real and
personal pi·operty. 'raxes are du on or before December 15 of
each year and per onalty can be sold on five days' notice. Where
there is no per onalty, land of the tax-payer is sold by the Collector
on the first Monday of March following. The owner or any one
interested in any lands sold for tax es, may redeem within two
years after the day of~m~qrtRfr payment of all taxes, costs, fee

UNIVERSITY OF WASHINGTON

BANKING

D COM~IERCI L LA vVS- :1\IISSOURI.

and 25 per cent. damao-e , and 5 per c nt. on amount paid by pnrcha er, and C0Rt of the_ couveyan e and re,..i tration. Infant and
pcr'on of um;on nd mrnd may r del'lll within two years after removal of dif,ability, on pnyin·g tile valn of pcrnu11H:'11t improvem nt put on th' land after t,,vo _years from date of nle. (Code
189~. ' eC. 3 '.!3.)
ears old. If not
Wills may be execut d by anyone twenty-on
wholl_y written and snbRcribed by tc ' tator,'ex cution must be att ' kd by two ub crihing witne es. A mmcupn,tiv' " ·ill (of peronnlly) may be made during In t iekness of tet--tntor at habitation,
or wh re testntor hn n · ·itled ten clay:.:; next btfore d atb or where
per on i:.:; taken . ., irk from home a11d diet- before retnrn': musL be
proved by two witn sRcs, that the te ' tator called on om per1:<on to
take notic that nch is hi:s or her \,\ ill, or word ' to thnt effect.
Soldiers and nilors in nctnnl s 'rvice may bequeath per oualty free
from tntutory restri tion . A " ·ill mny be probnkd in 0111111011 or
sol 'mn form. 1f in common form. it mnv be c ntc ' ted within two
yenrs, and un i15sue ·is mad up to be tried.by a jury.

MISSOURI.
BANKING LAW.
(Revi ed by J.C. FISHER, Attorney at Law, Jefferson.)
Mi sonri Law mnkes president, director, manager, cashier, or
other officer of bank receivin; or n,ssenting to receipt of money or
other valuable thing, or er ating or a8 enting to the creatjon of
any debt, knowino- the bank to be insolvent, guilty of larceny, ctnd
the failure of the bank i' prima faci evide1ice of such knowledo-e.
'l'he R ·vised Statnt s of 1889 provide tbat five or more pen;c;"ns
in any county, who harn associated themselves together by articles
of agreement in writing for the purpose of establishing a bank of
discount, or of both discount and deposit, may be incorporated
under a name or title designating such bnsiness. In no case shall
the cash capital be 1 ss than $10,000, nor more than $5.000,000. In
cities of 150,000, or more, the capital shall not be less than $100,000 The stock shall be diYided into shares of not Jess than $100
each. One-half of the capital stock subscribed mu t be paid ap
before a c rtificate of incorporation can be is'ued; the remaining
half to be paid within on y ar from the date of the certificate.
Twice a yen,r the Secretary of State is required to call for a report
from every insti1 ution doing a banking business under the provisions of this act; but a statement may be called for oftener if desired. No person shall engage in banking business with less than
$5,000 capital, and until he has made statement under oath of this
fact.
Law of 1889 fully defines rights and powers of Savings banks
and provides, among other thino-s, that such banks shall b~
allowed by law " to buy, Rell, and di count negotiable aI'.d nonnegotiable paper of all kinds as well as all kinds of commercial
paper." All business corporation organized under tatute mu~t
first pay up one-half of capital subscribed. Under la\\·' of 1 ~93
~aving bank:.:; mnst be mann°·cd by directors, and they must be
re idents of this 'rate
"•rrust companies" and "Saving societies " may be organized
under special tatute defining powers and providing manner of
conducting business.
COMMER IAL L \.W.
Acknowledgments are taken in l\'.Ii souri, by a court havmg a
seal, or Judge, Justice or lerk thereof, Notary Public, or Justice
of the Peace of county wherein land is situated. If out of Mi ' ouri
but in United States, by a Notary Public, Stat or Federal court:
having a sen.1, or Clerk of uch court, or Commissioner appointed
by Governor. If without United Stntes, by any court having eaJ
of State, Kingdom or Empire, or chief officer of any city or town
having a seal, or any Minister or Consul of United ·states, or any
Notary having a seal, and all deeds conveying or affecting real
estate must be acknowledo-ed before some such officer duly Ct'rtified and recorded in the office of the Recorder of the county in
which su h real estate lie'. Separate examination or wife no
long r required.
Assignments and JnsolYency. An in olvent may make a
voluntary a ' Rignment for the benent of all creditors, which mu~t
contain a tatement of the value of his property and his liabilitie~,
duly worn to and also acknowledged aB d eds are acknowledged:
and a sio-nce must file inventory of assets within fifteen days after
execution or deed of assignment nnd give secured bond within three
days. A:::-signce fixes a dn.y for hearing claim , and gives notice
thereof by publication for thre' months. Circuit ou1~t has supervision of all a signment. proce diug , and may appoint an at:ls1gnec
in case of a vacancy in the trnst. (Laws, 1887, pao-e 2•1.) Debtor is
not discharg 1 d from his liabilitie except by con ent of creditor .
Attachments will issue in aid of summons when defendant is
non-resident or a foreign corporat10n, or conceals, ab ond , or absents him ' elf, removes or att mpt' to remove, with intent to cl.Jange
his domicile, or t o ell, convey, a' ign, or dispo e of property,
with intent to defraud, hinder or delay creditors, or wher the debt
wa " fraudul ntly ·ontrnct d, or where the action is for damages
arising from the com mis ' ion or a felony or mi demeanor, or for
the eduction of a female, or wher debtor has failed to pay price
of goods which by on tract w ·re to b paid for on delivery. Writs
of attachment may be levied by gamishing a debtor of the defendant. 'l'here i no arre t for debt in any case.
Bond Investinent Companitas r qmred to depo it $100,000
with ' Lat, 'l'ren mer befor' doing lrnsin ss.
Bu in s Co1·poration are a uthorized now to i ' Sue pref rred
stock, but the articl s of incorporation mu t give the authority,
amount, etc.

615

Corporations. Dome tic corporationEI, exc pt msurance, railroad, and buildin g and loan, are r~equired by the a_ct of 1_ 93 t(? fil_e
tat ment ' with the cretary of State. The location of rt pr111c1pal ofilces, 1h name of its Pr ident and. ecret1ny, the amount _of
its cap tal sto k, ooth ' ub._ cr~bed and paid up _the Pll:r valu_e of its
tock and the actmtl value ol 1ts 15tock at the t1me oi makm& the
r poi t tlrn cash value of all of it per onal property, and of a1l its
real et-tate within this State on the fir t day of June immediately
preceding, and the amount of taxe:3, etc., paid.
For i(ln Corporations. Foreign ·orpornt10ns, except msuranct> niilroact and bnilclino· companies, ' trnll annually. on the first
of J1~l)'. rrport to the Secretary of tate the locatio~1 of its rrincipal
ta_te, the ~ame of 1ts prmc1pal offioflice, factory or plant in thi
cer in thi t\tate, tbe cash valu ~ ol all of its perwnal prop. rty an~
its real e:3tate within this State, on the first day of June 1mme<l1ately precedino·, the amount f taxe:::, etc., paid The e statements
must b, swor~ t , and failing to file same shall ubject them to a
fine for 11 ot over $1,000 for ench off nee, and eacb sue e ding thfrty
day shall constitute a parnte off -'11 e. Oth-'r p -naltics nr provided for failino· to comply. installment bond investment compauies nre not allowed to do bu iu ss in thi · State without complying
with the acts of 1893, which requires a deposit of $100 000, and
other condit,ons.
Courts. Terms and Jurisdiction. Justice's Conrtn, in counties
haYing over 50,000 inhabitants, have jurisdiction on contracts and
torts to extent of $250, and of all actions againf:(t railroads for killing or maiming stock, irre pective of vn.lne. In counties having
less than 50,000 in all cases both of coutract und tort to the extent
of $150, and ao-ainst railroad for killing or maiming stock irrespective of valtfe . Circuit Court hns unlimited general jurisdiction
exc eding $50. In some countie' there are local courts, called Common Pleas, of concurrent jurisdiction with the 'ircnit Courts over
certain districts. Circuit Court holds two to three terms annually
(in t. Loni five). There is a Probate Comt in each county, ·w ith
the usual powers.
Executions may i ue at any time within ten years from the
time judgment is rendered; ur returnable to the next term of
court after they are issued. Execution from ircuit Court not a
lien upon personal prop rty until levi d. Execution from Justice's Court a lien upon personal property u 0011 as placed in
hand of Constable. There is no stay of execution. R al estate
taken under execution i sold without apprai ment, to the highest bidder.
Exemptions. To head of familie : Personal proper Ly, various
article8 and stock nnmed, or els if chosen by debtor, in vtilue
$300, and laborers' wnges earned in la t thirty days; hom stead ;
160 a re in ountry, or thirty sqtrnre rods in ity of less than
40,000 inhabitants, either in val ne $1,500; in cit1 or over 40,000,
eighteen square rod , vn.lu' $3 OOU. Law of l\li ' souri, 18 7, page
198, makes home teads liable to al tachment nnd execution upon
aJl causes of action exi8ting at time same is acquired.
Exprflss Com1>anies. Charges rrgulnted by State Board of
Railroad and \Yarehou ' e Co1111nis15ion rs.
Interest. The legal rate is six per cent., but parti s may contract in writing for not to exceed eight per cent. 'l'he penalty for
u my i the forfeiture of the interest at ten per cent. to the common
school , and the recovery of co ' t by the defendant. J udo-ments
bear inter st al the rate of ix per cent. per annum. If the contract -:ucd on calls for a higher rate-not exceeding eight per cent.the judgment thereon may be made to bear the rate of interest so
agreed on. An open acconnt bear interest at the rate of ix per
cent. per anmnn from the time when demand for payment is
made.
Jtulgments of courts of record, including United States Circuit
Conrts, are lien"- npon real estate of defendttnt within the county,
and may be extended to other countie by filin~ transcript. In the
city of St. Louis such judgments are not lien until abstracts
thereof are entered in the tibstract book. Juclgm nts of Justices
of the Pence are liens on realty after trans ript is filed in Circuit
Clerk's offic'. Lieu continues three years from rendition of judo-ment. and may be renewed for two years by sci1·e facias. Jndgmeit
may b ' renewed within ten years for an additional period of ten
years.
Limitation of Suits. Open accounts and all promise not in
wntiug, five years; Jnstice 'judgments, five years; contracts and
instruments in writing, ten yenrs; judgments and decree of courts
of record, twenty yeurs. R vivor: New promise in ,uiting or part
payment.
l\larried Women bold their real and personal property in their
own name, free from control or the husband, nnd not lrnble for his
debt:s, and al o throug;l1 the intervention of a trustee. Wife is liable for her nnte-nuptrnl debts. A married woman can make contracts in her own name, buy goods, and give note in ettlemen L of
purchase binding h r own ' eparate property, both real and personal. Widow take dower in on -thircl for lif of all the husband's
property, except such as may be acquired from wife not liable for
her nnte-nuptial debts. Husband dying, leaving children by widow
she takes absolutely a share of his personalty equal to the sh are
a child, and sh~ may in such case elect to take absolutely in lieu of
dower a share m her husband's real state equal to a child's part
thereof. In conveying real estate, relinquishment of dower and
separate examination not required. May sue and be sued as a
fennne sole in any court of law or equity without fining her hu ' band.

or

.M ortgages and Deeds of Trust must be executed and acknowledged like other deeds, nnd must be recorded. The usual form
of securitr is a deed of trust, by which the property i conveyed to a
trustee, with power to ll without intervention of the court. ChatteI mortgag _s are void as to cre_clitors of the grantor and purchasers
w1t1:J.out notice, unle s posse s10n of the property pa~ses to and is
retamed by the mortgag e, or the mortgage or de d is r corded.
R al property sold under deed of trn t without foreclosur, may be
red~erncd within one year if bought in by the ce tni qu t1,,/;,st or his
assignee, or by m~y p r on for t1:1em or eith r of_ th lllj if bought by
a stranger there 1s no red 'mpt10n. Unless v1denc >d by writing
execut d, acknowledged nncl r corded as provid din ca c of mort~
gage' of personal property, nll 'nl s of goods nnd chatt ls unl ss
accompanied by a delivery of pos es ion within a reasonable time
are fraudulent and V(O~ g-l~atl-lfffii1fi3t vendor's creditors and sub ~

UNIVERSITY OF WASHINGTON

BA ... KING A D

616

O IMERCIAL LAWS-:OIONTA A.

quent purcha ers in good faith. All condition~l sale lea es, .r~ntings or hiring of per onal property unle s evidenced by writmg,
executed acknowledged, aud recorded a provided in mortgages of
per onal property, are void as to creditors and ub equent purcha er in good faith.
and Bill of Exchange. Bills of exchange, notes paya.i. Tote
ble to a party or order or bearer and expressed to be for val_ue
receiYed bill of ladina and warehon e receipts, are made negotiable by statute, and are go:·erned by the rule applicable to_ commercial paper; and negotiable notes are payable as tberem expre sed · if payable at a certain bank on face, demand of payment
must b~ made at the bank named. Sight drafts or demand drafts
on person re iding in this State are due and payable on the da_y
demand of payment is made, and must be protested on that day if
not paid. Upon protested bills, and upon notes that have bee?
negotiated the following rates of damages can _be_ recovered 11
the bill or note is overdue twenty days before suit 1s begun: 1st,
if drawn upon a party in this State, four per cent.; 2d, 1f drawn
upon a party out of this State and within the United_ States, ten
p er cent.; 3d, if drawn upon a _party out _of the Umted States,
twenty per cent. The destruction of a bill by the drawee,. or
refn al to return it within twenty-four hours after presentation
for acceptance, is taken to be au acceptance. Damages for prote~t are allowed only to holders for value or their a signs . No
days of grace are allowed on sight bills or orders. Pnblic holidays are January 1, February 2~, July 4, Decemb~r 25, <;teneral
Election day and Thanksgiving Day; and notes or bills fallmg due
upon a Sunday or public holiday are payable on the next day, unless
the latter be ulso a Sunday or holiday, in which case they are payable ou the day preceding actual maturity.
Powers of Attorney for conveyance of real estate, or whereby
real eFtate is affected, must be executed, acknowledged and recorded in ame manner that deeds to Fuch property are made, and
a marned woman may convey her separate estate and relinquieb
her dower by power of attorney executed jointly with her husband
a above stated. Sale of land by an agent not binding upon principal unless a ~ent is authorized in writing to make the sale. (Laws,
1887, page 195.)
Seals. The nse of private 8eals in written contracts, conyeyances
of real estate, and all other instrumeut.s or writing, heretofore
req nfred by law to be Sl'aled_(except thl: seals of ~o.rporations),_ was
abolished by the legislature m 189:3. but the addition of a pn \'ate
seal to anv uch instrument shall not in any manner affect its force,
character, or in any way change the construction
validity,
thereof.
Suits for collection of debts may be brought by summons in the
county where defendant resides, or in the county where plaintifl
resides, if defendant can be found tbere; where there are several
defendants, in any county in which one of them resides: and 'Yhe:n
defendants are non-resident, then in any county. Names of md1vidual plaintiffs must be furnished, and a bond given for costs by
non-1esidents.
Taxes remaini.ng unpaid after December 31, are subiect to _a pen alty of one per cent. per month until paid. Tax and penalties are
a lien upon property assessed, which may be sold aft~r _January 1.
Payment of delinquent taxes must be enforced by smt m court by
th e Collector, and judgment and special execution and s~le by
Sheriff, and all parties to the record are concludt'd ~hereby m absence of fraud . Snits for personal taxes barred m five years.
(Laws 1887, page 242.)
Trade J\1:-uks. Laws of 1~\11 repeal former laws and specifically
provide for better protect ion of Trat1e .Marks.
Trust~. Statute of 1889 prohibitA trusts, combinations, etc.,
under heavy pena lty a11d punishment.

or

MONTANA.
BA.r:TKING LAW.
(R \'i ed by Grn A. LANE, Attorney at Law, Billings.)

No limitation upon right to recover money deposited in banks.
May become i11corporakd with not less than three persor:s, "·ith
not l · · than $i0,000 capital tock, fn1ly paid in in cash, and tbe fact
certified to by the pre ' ident and ca,:l1ier and filed with ecretary
of State and County Clerk's office ,vherc th bank i located. The
bank mnst l.Jc authorized to tran ·act l.Jut:-iness by tatc Auditor, aftt>r
certificate of incorporation i pul.Jlishcd et ting forth the provisions
prc._<Tibcd by , tatute.
r o bank can pnrcba e its own stock, or that of any other incorJ>Orated company, nnlt·H~ i:;ucb purchase i nece sary to prevent a
lo ::;; tlJ u it can be held but i-ix month', if it can l.Je old at par or
for wbat it cost. All power · usually conferred upon incorporated
bank are given by ~tatute.
'l'he offic ·r and tockholder are individually liable for all debts
contracted while they wen' officers and tockhold •r thereof equally
to the extent of the ~tock they bold, the liability c a ' ing ix month
after th• bale of their tock.
JJiviclend · are declaretl only from net earning . Penal tic are provickd by tatnte for eniployc making false entrie . 'rbe bank forfeit it. fra11chise .. by failur, to comply with r •qn irem nt lawfully
made for ixt,r day , or for a violation of law, and it mu t keep on
aving
band an amount equal to 20 J><'l' cent. of its lial.Jilitie '
bank ar' reqniled to have cupital tock of $100,000, at 10 per
share, paid in in cc1, h. Can 110t exceed tw 11ty yeiu- 'duration and
ex.i teuc ,, ,vitb the usual pow •rs of aving' banks conferred by
st:itnte. Private bank. are not prohibited.

MMER 'I L LAW.
Arrest. A per on may be arrc ted in a ciYil action on a can e
of action ari ·ing upon conLract when the defendant i about to

depart from the State ·w~th in tent to d~fraud hi' _er dit01 s or wh:n
defendant ha been grnlty of fraud m contr;1 t11;-g the d bt; al~o
when defendant bas remoHd or disposed of h1 property, or 1s
about to do so with intent to defraud hi er ditor , and in certain
other peciti. d 'case not depending npon contract or debt.
Undertaking i fir t required, with two "uretie , for cost~ aD:d
charaes and damages of defentlant, in the ..,um of 500, which ~s
defnglted uvon the failure of plaintiff to obtain jnclg1:1e11t and his
not being entitled to an order of arrest. The nrehe are to be
resident. and hon.:eholders or f're holders of the State.
If the defendant can wear that he ha.: no property to the amount
or to
of $50 not exempt, either concenled or di p_oi:-ed of to bi n
defraud his creditor , be i ' entitled to be d1:.-:characd.
Assignment and l111wlvency. There is no in olv ncy or
a ·icrnment law excev t that an a1:- ignment or personal property
una;companied 'by actual immediate and co111in11cll change of
poi:,se sion of the things a8 i!rncd is conclnsiYely pr1'cct1med to be
fraudulent a" against the creditors, exii:-tin g and s1:ib::-cqne11t_, of the
assignor, or subsequent purcbar;;crs or mor(gagees Ill good f_ai tb. -';\11
assio-nment of per"onal property, being m Th e unture ot sernnty
for debt, must be filed in the ofilce of the Clerk and Recorder of
the county " 'here tlle per on giving the secnrity rcsit1cs. '\Yage"- of
miner mechanics sale men, eenan1s, c'crk~, or laborer to $200,
.
'
'
preYious to as ignmeut, arc pref erre d c1mms.
sixty day
if rendered

a

Attacl1meuts. Attachments are allmY d upon affidaYit ho,Ying
defendant indebted upon contract dne. If the debt L not ._ecnred lly
mortgage, lien, or pledge, or, if so secured, the security hn~ l.Jeco~c
insuflicient or nugatory, the writ issues upon 1111 mHkrtakrng, with
two or more 1mreties, approved by tbe Clerk of Court, in n sum not
lei's than donblc the amount claimed bv the plaintiff. i r ~nch nmonnt
be $1 000 or uuder, hut in no case 11eecl the undertaking excred
$10,oo'o. It is conditioned that plaintiff recover judgment, and
depends also upon the plaintiff being in fact entitled to no attachment. It is given Jor the costs and danrn~es that defendant m~y
sustain by reason of the attachment. Suretle' need not neccs'-'anly
be residents or freeholders of the county where action is :::-tarted, but
must be of the State, :rnd they must be approYecl by the lerk of
Court and must ju~tify.
The writ can be directed to and be senecl by 1he Sheriff of any
county in which property of defendant can be foum1. Can not be
legally leYied npon aud made out of property exempt from exec_ution. Redelivery bond may be rt>ccived from defendant by Shenff
and property released. Creditors first in priority in. time are
entitled to firi:;t levy and precedence. Pri ocipal need not s1gu undertaking. Attachment is also allowed, in case of frand, Lieiore debt 1s
due.
Bills and Notes. ln land and forE>ign bills and notes arc negotiable and collectible by and in the name of the holder am1 o,Yne1"
thereof. Three days of graccapplytoal1sucb as mature in thcSt,1te,
and fall due the third day from anct. after the day of maturity
expressed therein. Drafts payable at sight, or cLecks or funds deposited in bank, not entitled to grace.
Drawers of indorl'ed bills of excbauge are primarily liable until
acceptance, after which they arc only ~econdarily liable. lrnlorscrs
are entitled to be notified of tllc pre8entrncnt and 11011-pnyrnen t
thereof at maturity to the per"on primarily liable for their payment,
and are not liable until the prcsentmen1 n11d notice thereof, sened
immedi ately after the presentment nnd clenwnd, l'ither by notice
served or by certificate of the prot c t thereof being llepot-ited in the
post-office directed to the indorser at his usual place of residence.
Holder may sue all the parties, or any of them, at lli , option.
In connection with the foregoing proYision._ and reqniremenrn, the
common law of England, ~o far as the same is applicable and of a
general nature is the law and the rnle of deci ' ion, and is in full
force in the State, relative to notes and bills.

Chattel Mo1·t~ages. The possesEion of persorn-:.l property
mortgaged must l.Je given the mortgagee at tbe time the mortgage i
exec uted, or the mortgage be aclrno\\'lcclged and filed with the
County Clerk, he being the Register of Deed where the mortgagor
resides, if a resideut; if 11ot, then where the property ie. AffidaYit
by the mortgl-lgor and mortgagee, or in ca1-e either ot tlicm i'I absent,
by those present, and of the ngent 01· attorney of tho, c ab -ent,
setting forth the fact that affiant is age11t or attorney and the
absence of principal, i~ to be rnade tllat the mortgnge is made in
good faith to secnre the amount limned therein, und ,Yithont any
design to hinder or delay th e crcdito1 s of the mortgagor. Is the11
good and valid against the creditor of tbe mortgagor, or subs qnent
purchasers or rnortgag e-, from the tim it is filed mitil the
matntity thereof, and ~ixty day thereaftt r, but not to exc ed one
year and ,ixty days from date of filing, exc pt rc'ncwed at or before
it1:1 maturity, by affidaYit sho\\' in g the date of the mortgage the
name of tbe mortgagor rmd mortgagee, date of iili11g, amount of
the debt owing at date of filing such aftidaYit. 'l'hi ' kc 'P · it in life
for one year ft om date of filing affidaYit. Annexed to 1bc affidaYit, or
incorporated therein, rnn8t also be the same afficlav1t a made to
the mortgage, to wit: that uch debt or obligation wa n 'itherrnade
nor renewed or extended to hiuu 'I', delay, or d ,fra ud th creditors
or rrnb equent mortgngec ' of the rnortgno-o r. It mn~t be worn to by
Chattel mortgage, are fore lo ed by
the rnorlgag c and Iii 'd.
action, but if the mortgngc , pecinc~ 1bat the property therein
deHcribed may be old by tbc Shcritl of the cou11ty where it i ' , that
officer i allo\\'ed to foreclo et hL! 1>nme.
D eed of trn t, of both r •al and p rsonal 11ropcrty, executed by
any incorpornted ornpany, arc accompu11iPd by the amc aflidavit
and recorded the same a · chattel morrga()' s.
Commercial T1•ayeler ' I.icen~e Law . Licen._e in each
county wbcrc b11 irn't'S i ' don of selliug any gold or E'ilY r or
plate1l ware, or jewelry of any de tription, l>y traveling merchant ,
of $~5 per anunm required hy the lawi:-; bowen·r, liccn e i not
now collected from commercial tru v lcr... el ling by samplt", a the
collection th reof, and law compelling tbe collect1011, llave be n
to he unconstitnheld by the 'u prem ~omt of the Unit d Stat
tiona 1.
Corporations. Three or more f)er on s, by certificate igned
and ack11owledged and fil ed in the Clerk'8 Ofllce of the county
wlH re the busine.,s i. to l)e carried on, can form a orporation for
th purpo1-l' of mam1factnrmg and miliing, with all husiness
inci dental th ereto, o~n\j1~a'Pffl5.m branch of bu ine s designed to

UNIVERSITY OF WASHINGTON

BA KI G A D COMl\IERCIAL LA WS-NEBRA KA.
aid in th industrial or prodn tive interest of the ouuty and its
development. which will continue in xi tence ail corporat ion fo r
tw 'nty year .
Depositions. Depositions taken out of tb i (ate to be u ed
herein may b tak en in any action at any time after the service of
the summon' or the appearanc of the defendant ther in. Five
1ay 'previous noti , toget_ber with_ a copy of the interrogatories
mt nd ct to br put to the w1tne ':::: ol the intention to 1-ne out from
ourt's oftice a com mi sion tlircctcd to any µereon
the I rk _of_th
a Comnnss1011er. or to a ny Judg or Ju 'tice of the Peace. Clerk of
tbe onrtofRecord, or otary Public of the county, town, or city
where n h witness r eside'. to tnke bis deposition upon uch written interrogatorie~ . direct a11d cro8s. \\·bi h dpposition must b
._ig11ecl by aid wit1wss a11d Cl'rtifietl to the Clerk from which it is
!S u d by the officer taking tbe same.
Executions and Exemptions. Execution upon n judcrment
~nay be i:-< n d nnd l eYied nt any tim e within ix year after the eutry of
Iny be made out of anypropert)~ belonging to the judgJudgment.
ment debtor not exempt. 1'he fol lowirn."'. property is exempt:
Wcnrin 6 appar 1, household furniture fuel nm1 provisions for
family n 'e for t"·o months, ne horse. two co,H nncl their calYe ...
two swi~ ', fifty fowls. fanning utensil-: (rnluc $600), b ·o oxen , 01:
one horse or mule and harness, cart or \Yagon. food for aid tock
to the
for three month '. eccl or ypo·etables for plantino· or sowino0
nllue of $;.,00; nil implcmen s, tools. and necessary articles n ed
by n mechanic, surgeon or phy "ichrn. attorney, mi, ister, miner,
cartmnn, tl'ami--ter. or labor<'r: earnings of judgment debtor for
thirty days preceding lcY)' of e ·ecntinu or attachment, " ·hen the
snme i ' necl-'SBary for the support of his family re~iding in this
tatc, snpported l.Jy hi~ labor; homestead of 160 acres of lnnd or
Je,-., for agricultural pnrp ::::es . ~md t1welling th reon. or one-fourth
acre lot in city or town, am1 dwelling ther 'On, if owned and
occupied by nny re~ic1ent of 1hc State: all not to xcced $~.500
iu value. :Xo exemption lie~ in fayor of non-resideut, or person
not married or the head of n family.
Interest. The legal mt i 10 per cent. per annum, but any
rate agreed upon hy th parti ,, mny he collected. as there i no
nsnry law' . Jnclo-ments tlraw 10 per cent. intere~t. All indebtedness after dne, 10 per c ·nt.
Ju<lg·n,ents. Judgments rnn for six year from date of entry.
All judgments entered since ~larch 9, 1 ..,9, rnn for ten y1 ars. and
arc lien' upon all of the real estate O\rned by the jndgment debtor,
,vhereycr the jm1,grnent is l1ocketed, \\'hich lien con inues for six
years Until kvy of p:s.ecntion npon the jndITTl1ent, personal
property i ' not affect d by the judgment. A jndgmenr can be snect
oyer again before the six years expire, if entered vrior to :\[arch
~. 18 'll: if entered subs q_nent to that time, within ten year from
date of entry thereof.
Limitations. First. An action upon nny contnct or liability,
founded upon any instrument in writirn:r, shall be commenced
within eight yenrs from its nrntnrity, if tbe cause of action accrued
econd . Upon an
since 1\forch H, ff 9, otherwi 'C within si \'. years.
account. contract, or promi::::e nnt founded upon a written instrument signed by 1he party cbnrgeahle therewith. slinll be commenced within fi,·e years from the time the cau "e of action accrued,
if it accrned ince :\Inrch H, 1 9; otherwi e, three yenr . Open
and running accounts, tnne rnns from date of la..t item.
~

larriecl Women. A married woman mav sue and be sued
nlone; may mnke con tracts, and do nil other acts as if she \Yere
single, e'-Ct'pt to conYey her separn t e real state. in \\'hirb conver-ance hu-.bnnd mu t join. She may make de laration as sole trade·r,
and by filing the same, and a list of her separate property. with the
County Cl<.•rk and Recorder, after applicntion to the onrt upon an
01 der mncle and r cord<'d, then he can do business in her own
name. freed from her hnsbnncl'' debts. Aft r so doino-, the hwhand
is not linllle for ber dc 1Jt~: and he may dispose of eparnte prop,erty by will. 'l'bc law i repenled formerly allowing married women
to be executrix, administiatr1x guardian, or rrnstce.
l\Iort~ag·es. Mortgage of real estate are executed, if by married
p 'rsons, by signing nnd acknowlec1£ing sam e before an officer
authorized to take acknowledgment of deed ' . The wife ml1't be
examined eparntely and apart from h er bnshand, to the effect that
sh execnte' tbe l'<nme fre 'ly nncl voluntarily. free from inflnence
or coercion of her Jrn-.bnnd. a11d that ~be dnes not wish to retract
the same. If wife is n non-n•"' ident of the " tnte, he need not join
in the conveynuc e. :'.\Iortgnges are foreclosed by action alon r , and
are ,nhject to the stat u te of limitation her iobef re mentioned;
must b recorded with 1he Clerk and Recorder of the county
wherein th real e"' tate is ituated
lnims nrc sent direct to the attorney,
Proof of Claims, Suit .
sued upon if 11eces.:ary; aud rhe proof thereof df•pend upon
wb ther tb tiame are d nied and wh eth er tbe written ini:-trn rnent
or not , or a copy thereof, b annex d to or incorporat d in the
complaint. If it be, then, nnle the defeudant c1 nie the same, or
the execntion ther of, by u verified an wer, th genui n ene s and
due x ution of the note or written instrnm nt i ' rlecmed
admitted. Iu case of a d nial, depositions mu t he obtained of
proof th 'rrof. Deposition of th prPof of all account hould be
obtained h)' the attorn y ning immediately after the enic of the
summons, a ' it i nece ary to prove ' uch accounts.
Prote ts. The in trnment of prote t, properly authenticated by
-any rotary Pnblic accompan)·iug any bill of excbangL' or promie or,v nok. h, re ri v d here as J)rima facie evidence (If the facts
therein c 'rtifiec1 bnt may be contradicted by the , vide11ce. Afrer
demand f payment and r efn .. al by the maker. drawer or accepto r
of any romml'rcial paper, the otary making s u ch demanrl may
charge the inc1orser or nny parry to be cbara;ed, anc1 fi x bis liabil ity,
if in the same town, by notice dl'poeit I in the neare~t post-office
to the party to be charged. 1f t be bill or n ote is prot st d in rhe
u--nal manner by the Nota ry Public and the cer tificat e of prot e1- t i'
inclo'e 1 in letter-form and d poeit d po tpaid h1 t he po t-office
dire t d t nny il1clor rut hi1- lldUll pla e of n 'i dence bis liability
will be fi .·ed without enino- him with a writ ten notice of pre entment, d •muml, and non-paym nt.
, 'uitl;i. Ruit are comm nc d by filing a written complaint with
the Cl r k of 011 rt: or if a Jn ti e Cour t it may b ' b y filing a c py
umof tbe 11ote. b ill, or acco unt on which acti 11 i br ught.
mou mut-lt be i ued wiLbm one year, and if defendant evade ser-

617

vice or i a non -re ident, or i. a foreign corporation haz ing 110 agent
b r , he may be notified b v tbe pu blication of the "' ummon . . , but a
j u dgment in the ca ._ will b of no value unle ' ._om property
belon ging t o the non-r esident i:-; attached in the a tion or a lien
acqnirecl m om e way t he reon. I n the D istrict Court the d efendapt
i allo\\·ed ten day after the s rvice of the summons if erved rn
the county where ~nit is brought, but if ~erved out of t h e co unty
but in the ame Judicial District. tw nty days : if 'ened ~lsewhere,
forty day , to answer. In Ju ti e Court. four full day after service
mu ·t elaps, before the defe nd ant need to appear.
Tax e~ . Taxe ' on all kin d ' of proper ty (e:s.cept public property
and the property of agricultural and horticultural societie , f or educational pnrµoses and place for actual religious " ·orship 1:1.n~ public rharitab1e in titntions: also hospitals and places of burial 1f n ot
ubject to taxes for
used or ht-ld for priYate or corporate profit) i
publi purposes only. It must be leYi ed and collected by general
nch ta:s:rs haYe tbe force of a peri-onal Judgment and are a
law ' .
li en on all of the property subj ect to taxation, ands 1id lien has the
effect of nn execution leYied on all such as are delinqu ent, and
bet:orne delinqut'nt after the fir t day of D ecember. after which
time 10 per cent is added fl.fl a penalty. if unpaid. The delinquent
tux-list i:-- pnblbbt'd on or bl'for the las, l\lonclay of each year, and
is nor less than tw-entv-one and not more than t"· ntv-eio-ht days
afrer the fir::,t publicaiion sale of the real estate i~ made. and i
completed in three ,YeekE, ubject to r edemption within t,Yenty-fonr
month"- from date of sale. The pnrcbaser i r quired, thirty day ...
before the cla e of e:s:piration of time of redemption, to srn·e on the
owner notice of the expiration of the time <•f redemption. and t he
owner ha the right of redemption until said notice is erv ed. Tbe
purchase money draws 2 per cent per month from dat of sale and
the pnrchn , r i, entitled to 20 per cent on the amount of the purchase price in addition thereto, and $:3 for giving notice of
redemption.
"'ills. All persons oYer 1 years of age. of sound mind, including married women, mn~" dispo"e of al] of their property by will.
A married ,Yornan, bow<.'ver. can not make a will so as to operate to
<.lepriYe her lrnsl and of more than one-third of her real or personal
e~tate \Yithonr hi-- consent. A will must he in "-riting unless it be
a 11t1)Jcnpative " ·ill and (trnless it be an ologrnphi \\·ill) rnu"t be
snbscribt->cl nt the end tbere Pf bY the testator ther of bimeelf o r
som' pt•reon in hi pri>sence and in the µresl'ncc of attesting witnesse,, or be acknowledged by the testator to tbem to have b een
made b)' the testator or by bis· authority, and must declare to witlll'S8t> tbat the instrnment i' bis \\'ill. T\\·o di intere't cl witoe e
are m•ct"sa1y. They mu"t sign at the end of the will at te_,tator's
reque t and in bis presence. An olographic will is one that is
t'ntircl)' nrnde by the band of the te ~1 ator himseif, subject to no
form. and nrn;-be made either in or out oftbe State nnd need not b>
"·itne,::sed. ·

NEBRA I{A.
BA...~KIXG LAW.
(Rc\"i ~ed by RICKETT &; °WIL ON, Attorney nt Law, Lincoln.)
Bankincr may be by corporation, firm or inc1iYidual. Bank must
furnish to ~tate Anditor itemiz cl statement of a sets nnd liabilities
1en d ays before comrnencing bu 'inc s. A like ~ tatement qum·terly
thereafter and on demand. Quarterly rPport mu t be publLbed in
local paper. Must have property, the ca h Yalue of which is no t
Jes" than from $5.000 to $50.000 abo;-e all en cum brnnces, ,arying
with population , f place "·bere located. Yalue of real e~tate, furniture and fi:s:tnres not to exceed one-thil'(l of r equired capital.
Inst k ep 15 per cent. of aggregate deposits and immediate liabilitie' in res rYe. In citie of 25.000 reserye must be 20 per cent.
tockholders liable to clouble amount of tock h ld .
Examin e rH. Appointed by Attorney-General , Auditor and Trea urer. :Mn ' I be compdent and di interested . l\fa com p 1 attendance of any inhabitant of the State to 1 estify cone rning the affairs
of nny given bank. 1\lny inspect nll book", papers · etc F alse
r presentation to examiner equal felony. All bnuks examined at
least once encb year.
Fore ign Hills of Exchange. T hat, i between re iclenL of
different ~tateo . mu"'t be protested upon non payment at maturity.
Pl'Otest fees ·ue collectible. Xotic 01ilv i::1 required on dom stic
bill ' or 1• otes, and protest fe es an not be coll cted.
....o bank shall permit any per on, firm or corIndebt e dness.
poration, including the mem b r thereof, to bf come indebt d to it
in an amount :x:ceediug 20 per cent. of its capital to k. Total liabi Ii ty of all stockholder to a gfren bank mu t not excee d 50 per
cent. of its paid-up capital.
a ·d ng Banks rnu't have "' 1:l 000 paid-up capital. ~lust hold
5 p er c nt. o f d po its in reserYe .

Adions. Only on form of civil action. Di tinction between
law and equitable actio~1s _re~og,:nizect. To obtain a p r rnna l judgment. court mn "'t have J11nsd1 t1on of person a' well ai:; nbject matrYic by publica tion gh·esjuri diction of ubject matter in
te r.
action in r 1n again t non-re ,dent .
Affidavits anrl Acknowledgments may be taken before an
person au thoriz d thereto. If tak<:>n out of the tate ancl ofti c r bas
no " al , hi offi cial hara ter must be c rtifi d to by' an officPr with
seal. :;)fotion a1e decid d up 11 affid aYits. Aftid,w'it not ~ufti ie n t
to obtain j nd crment on open account.
Aliens. Non-r id ent alien and forei 0 n co1porntio11s can n o t
ratebyd ti nt d vi ,purrbase.
a quireorboJdreal e.: 1 at intbi
or otberwi ~e, ex cep t, (1 \\·idow and. heirs of ali us may h 1d land
alr ady acquir d for t~ri~fri1f~ffMW1 lf89· 2) all " h o wn ed land in

UNIVERSITY OF WASHINGTON

618

BA ; KI -.-G A D c onI~IERCIAL LA w

1 9 may di pose of it dnring life; (3) a ere di tor may buy in land
when sole~ to pay a debt he hold~ and bold uch land ten year ;
(4) foreign railroad companie mny hold land neceeeary to operate
railroad: (5) foreign manufacturing company may bold land for
corporate purµo~es; (o) tbi , law doe ' not apply to real estate in any
village or city.
As ign men ts. County Court ha exclusive juri diction. Sheriff
ftr t a signee. A ignment in terms of ab olute conveyance and
recorded a , in ale of like properiy. A signment must be filed with
Recrister of Deed within twenty-four bonrs. Schedule must be
file% with County Judge, showing names and addre es of creditors,
with amount and nature of indebtednes to each, outstanding judgments, etc. And list of all property, includiug that claimed us exem1 t, real and per onal, \\'here situat <:-'d and the value of same.
Upon receipt of uch inYentory County Judge fixes day for m1::eting
of creditor . Creditors notifh·d by mail. Ou day appoin1 ed creditors may elect a successor to Sheriff, as a~signee. Property apprai ed and old as upon attachment out of District Court, except
personalty, which may be ~ old ar private sale within sixty days.
.All claim , set-offs, etc., must be filed within thirty to sixty days,
in discretion of the court. Distribution of funds witl1in three
months from date of appraisement. A .. signment void if preference giYen. except $100 for work and labor. or if it modifies legal
powers of assignee. Asshmor may bt examined in like manner as
a garnishee. (See Attachment.)
Attachment lies against prnperty o f non-ret'ident when claim
arises upon contract, judgment, or decree, without giving of bond.
Lies again t property, not exempt, of ret1ident, on .contract, express
or implied, when it is made to appear by affidavit-that (1) debtor
has absconded; or (2) has left tbe county of his residence; or (:3) conceals him elf o avoid sen·ice of summons; or (4) is about to remove
his property or a part thereof out of the jurisdiction or the court; or
(5) has C0?-\'ertM or is about to convert the :vhole.or a p_art of ?-is
property mto money; or (6) bus property or nghts 10 action which
he conceals; or (,) has assigned, removed. or disposed of, or is
about to dispose of bis property; or (8) fraudulently contracted the
debt or obligation-and in each case with intent to defrand his
creditors. Bernd in double amount of claim mm-t be gh·en, and
affidaYit must alEo show nature of cl aim or demand, that it is just,
and amount that plain ti.ff ougbt to recover. Attachments may issue
into several counties sirn ultaneously or in succession. .Appraisement by officer and two residents. Debtor may regain possession
upon giving h011d in double appraised value. Perishable property
may be sold before trial on order of court If attachment is dissolved, property or proceedR returned to defendant and plaintiff
liable in damages on bond. On claims not due, may be granted by
Judae of District or County Court. Bond in double amount of
claim must be given, and affidavit must show (1) nature of claim,
(2) amount, (3) when clne, and (4) that it is just, and one or more of
the following: (l) that debtor has sold, conveyed, or disposed of,
or (2) is about to sell, conYPY. or dispose of his property, or (3) is
about to remove his property, 01 a material part thereof, out o.f the
jurisdiction-and in each case with intent to defraud his creditors.
Creditors can not be tuo careful in bringing attachment snits, and
should never do so without ad vice from good counsel.
Corporations. The comtitution forbids the passage of' any
special law conferring corporate powers . Legisluture shall provide
by general law for the organization of all corporations.
Any number of persunl.", not less than three, may become a body
corporate by adopting Articles of Incorporation, and filing same
with the C<>11nty Clerk of the County in ,vhich its business office is
located. Corporations for construction 0f works of internJ.l improvements must file articles " 'ith Secretary of State.
Articles must limit maximum indebtedne s which shall not
exceed two-thirds capital stock.
Fonr week ·' 11otice mni-t be published giving corporate name,
nature and place of bn inestl, amouut caµital stock. commencement
and terminc1tion of corporation, highest amount of iudel>tedlll s,
managing officers, etc.
Annual notice of indebtedness t:-hall be given . Failure to comply
suu::;tantially \\'ith provisions for organization and pnulishing
annual notice will, after exh . ustin~ corporate assets, leave stockholder jointly aud seYerally liable for the company's debts to extent
of unpaid 1:mb cription of any stockholder to capital s1 ock, and a
further sum eq1ial to the amount of Rrod;:: held; these 1n·oviF-io11s
only apply to such <leht · as are coutrncted while there is a default
exi.ting in publication of notice.
Courts. Supreme, ha appellate jurisdiction from District Court
and original in mandamus, quo warranto, habea' corpus, autl ca es
relating to revenue. Di 'trict, has orh!inal and aµpellate jurisdiction of cau e , in gen ral. Exclu ive in ca-ies affecting the title to
real property Terms fixc•d at cliscretivn of the judge. Uounl?f,
conClllTl ut juri diction witl1 Di ·tr .ct in nms n lHlcr $1,000 and over
$:WO. Excl11~ive i 11 probate anel ai:,signment cases. Terms commence fir t )Ion day of <.'ach month. In en ' Cs under $200, Justice
and 'ounty Comt::; conctuT ·ut and open a.11 the time.
CurteSJ'. ·when any man and his wire shall be seized in her
right uf an estate of it ,beritance in land , tbe husband i--ball, on the
cleatb of hi wife, holc.i the land for hi~ life, as tenant thereof by
cu.rtesy.
DaJ·S of Grace. (, 'ee .,_Yotes ancl iJilh of Ei·clianr;e.)
Deeds. Every in tnnnent \\ hich i::1 to atf ct title to real estate,
except leaf-C' for oue ) ear, mu t l>e in writing, signed by the
grnntor, wit1H:,: ·ed by one per on and nckuowlcclgcd. llnsbnnd and
wife not required to acknowl •dg • de cl '-eparnte and apart f1om
<'ach otber. .\s again. t su b.. equent purcha 'r and en umtmmcea
in goo<l faith mu t be r •cord cl. v\i itc mu ' t join to cut ofE her
do,,e1· mtere,'t. If tbc ·uujcct of conv •yancc is family home ·teacl,
both husband arnl \\ife must join or deed or mortgage ab ·olutely
voicl. If maclc in another 'tacc or country, it may be x:ecuted,
witne "eel, a11cl ackno,, ledgcd, eith ·r according to the law of such
State or of thi. ' tate.
Depo ti ns taken on notice to adverFe party, which ma. t be
8erved o as to gh·e party twenty-four hours to prepare and uflicient
time in aelcli t ion to reach place of taking uy ordinary modes of
lay be taken of any witne , or even the purti' to th
travel.
suit but can not be read in evidence if witne i within the county
at the time of trial and able to attend court. lf there is n o appear-

-

EBR A. KA.

ance of the non -resielent det ndant notice to take depositions may
be eened by three weeks publication.
Div o r ce . Plaintiff must hiwe been a. re ident of thi state for
six months prior to filing petition. A l'incula matrimo11i. granted
when defendant has (1) committed adultery :-ince the marnag , or
(::2) w1:.1s pb.\ ~iC'ally incompl'ten1 at the time of rnmriage, or (:3) ha
been "entenced to imprisonment 1or three year or more or (4) ha
abandornd the plaintiff for a term of two ycarR , or (5) hns become
an hnbitual ctrnukard, or t6) hn' been ·en enced to imprisonment
for life. A mensa et tlwra, granted when defendant is (1) guilty of
extreme crnelty to plarntiff, or (2) has de~erted plaintiff for two
years, or (3) in behalf of a wife, when the hn baud hns ' uilici 'nt
abi1ity bnt refuses or neglect to supvort her.
D ow e r. The widow of eYery deceased per_,on i entitled to doweror the use, dnring her natural life, of one-third of all till' land of
which he r husband was seizec1 or. An estate of inberitance at any
tim-1 during- covertnre unlet-s legally barred. Sale on xecution
agail st bus band alone does not oar dower . A non-resident ,, ife ha ·
no dower in Nebraska lands .
Es tates . The County Court ha exclnsi\-e jurisdiction in ettleappointed from fiiends of
ment of est at, s. Legal representntiv
the decedent.. Or on theirneglecta repre enta1iyc ·will be nppointed
on application of creditor. Time witbi11 \\'hicb claim must be presented fixed by order of conrt, _of which notice musr be giwn,
which shall be not le s than i:s: months nor more than two venrs.
Eitber husband or wire may disposv of et'\tate re . . pectively by ·will.
If no will the e tate after payment of debt det"Cl'llclR ns follows m
fee: (1) In equal slrnres to cbild1en, or i sne of a11y derea . . ed
child by r epresentatiou; Uno child1en. to other lineal de:.-eenl1nut"
(2) if no is::,ne, then to bis widow for life, rcrnai ntln to f"atber. nnd
if n o father. to " ·idow in fee; (:-3) if no i sue, \\'idow. or fatl.J ' l', thl'n
to mother anel brnthers and sister in equal sbarct'; (4) it" no issue,
widow, nor father, and no living brnther or ister, tlien in fel' to
mother to exclusion of is::-ue of deceasLd brother or s1Rter; (5' if no
issu<', widow. father, mother, brother. or sister, tl1cn to nl'xt of km;
(6) where a cbild inhe, its and die ' unmarried under a!sP, hi~ 1-hare
goes to the other children or their is ttl'; (,) if at tbe dl"'atl1 of such
inberiting cb 1ld. who d ies unmarried and nnder age, all otherchildren are dead, all the i~rne of th dl'ceascd children tnkc equally,
if of eqnal degree, otber\\'ise by representation; (~) if no kindred
widow inherits in fee; (9) in default of all the for 'going, estate
escheats t o the State.
E x ecutions may be issued immediately on entry of judgment
unless stay taken. Stay of executiou may be had on tili11g bond
with approved security in double amount of judgment for periods
varying from three to 11ine mouths, according to amon11t under $100.
ale under
If judgment $100 or above, stay is for 111ne months.
decrees of foreclosure may be stayed for nine month on \\'ritten
reg nest. without bond. Personalty sold on ten clays' notice. Realty
thirty days. All sales of realty mu t be tor two-tbird ' of apprai ed
value , and the sale mnst be e:xamiued and confirmed by the court.
Proceedings in aid of. When execution out of District onrt isreturned nnsatisfiecl, an order in aid of mny be obtained on fil111g
affidavit in District or County Court, setting forth that debtor ha '
property \\'bich he nnj nstly refoses to apply toward satii--faction
of judgment. Under thi:-a proceediug elefendant and other witnes es
may be examined touching a disclosure of bi property. and if
property ie disclosed, court may order same applied in sati faction
of j udgment.
Exemptions. 'ro heads of families only. Wearing apparel,.
tools, library, etc. And in addition a homestead 1101, exceeding
$:!,000 in value, or in lieu thereof, $500 of per onalty.
F rau<'! s. Deeds of gift are void as to existing creditors, a, also al!
conveyances made with the intent to clefrand creditors, which intl'nt
is participated in by the grantee; are, oid a' to creditors, regardles
of coni-ideration . Jl', cwctulent tnmsfer. A clebtor who as:-ign ~
transfers or dispo~es of all bis proµerty, or the proceeds thereof',
witb. the intent to defra11d his creditors, subject· him~elr to the
same peualty as if convicted of larceny of the Rame property.
Statute qf. Tlle following contracts must be in writing,, i!.!;ned by
the party to be charged: ( 1) Those not to be performetl within one
year; (2) i:ipecial prorni e to an wer for the debt or cldanlt of
another; (3) agreements upon consideration of marringe, except
mutual promist'S to marry; (4) specinl 1irom1se of executor or
administrator to answer damages out of bis ov.n estatr; (5) :.-ah• of
goods and battelB for $50 or more. unless,jil'.s/, there is a ,,ntten
memorandum signed by party to be cha ged; or. 8<' Co11d, unles
buyer accept and receive the goocls or some part thereol'; or. lhitd,
unles the buyer shall nt the time pay some part of ibe 1rnrcha ' t.money .
Affida, it
G arnish ment may be b fore or aftrr jndgment.
mu t show tbat the party gnrnishe;d ba l)l'OJ)('rty, or rights in action
of the defendant under control in the co1rnty. Uamishce mnst
an wer concern i 11g property or rights in action, Gclongi11g to defendant when garoishell, or since recei\·ecl, and i ' ncconntubJ , for 'Ume.
I n t erest, se,·en p 'r c nt when no rate peci1ied. ,Judgments
and decree bear contract rate, or 7 per 'e11t. A higher rate of
inte, et-1t after clue i in the nntnre o1 n penalty and cnn not lie
enforced. .Abo\'e 10, is usury. Principal only may b recoYerctl in
u nrion contract . Open account clru.w int 're "aft ·r six month ,
from date of last item.
Judgm e n ts. t cv~e E.,·ecution8 and Liens.)
L ien . Judgm,ent of Di t rict Courts, and of lower courts
tran cri1, ted to l)ii-;Lrict Court , urc liens upon realty of clefeudant
appcarini.; of record in clefendant' ' nam ', in tbat connty. .J.11echanic's, mate1ial-rnan's, and labort1··s. Obtain c1 by filing in office
of Regi ' ter of De •ds ' \\ orn itemized tatement of material fnrni ·hed
or labor done within fom month from elute of last item, 1f party
contract with own r. \Vitbin sixty days if it be a sub-contractor.
Lieu , o er at d, elate from date or litst item and ar good till two
year nftl'r date of Ju t :t m. J ndgment liens ure subJect to prior,
uurecorded conveyan ce
Limitati o n s . Verbal co11tracts, four year ; written contr acts~
and foreign and dome, tic judgment , fiye y ar . 'l'o recover real
p roper ty aucl fore ·lo e mortgng' , Len year . 'rrespa to realty or
per 'onalty, re plt vin, tort , and ac tion fo unded on fraud, four years.
I nj ury to character, a~~~lrra~WJiou s p rosecut ion, false im prison-

UNIVERSITY OF WASHINGTON

BANKI G A D COMMERCIAL LAWS-NEV ADA.
ment, and to recover a p nalty, one y ar. Official bond and undertaking, ten years. Foreign jlldgment, five year after judgment of
revivor.
Married Women. All prop rty, real and personal, owned at
the time of marriage, or which afterwards come to her, by d cent,
devise, bequest, or gift of u,ny person excep t husband, constitutes
her sole and separate prop rty, and not subject to debt or control
of hul!lband. May contract in refer nee to s parnte property and
he may
di pose of same by will r deed without husband joining.
carry on bu ' in ' in her own nam and her earning' are not nbject
to hul!lband' control or debt . May ue ancl be sued. To be binding her obligation must relate to her cparate e tate or be incurred
in trnn acting her own business. A surety or ~11arantor, he doe'
not bind h r 'Pparate e:-tate without contract to that effect. May
bind sepHrate e tat for husband' debts hy mortgage on ame.
Husband i not liable for debt ' contracted before marriage.
Mortgages. Real, mu t be recorded. Foreclosure only by suit.
No redemption of hmd S()ld on foreclosure nfter confirmation.
Chattel. Void, a~ to creditor', if mortgagor is allowed tor tain
possession and sell from the stock. Al o Yoid. e:s.cept a to partie ,
unless original or a copy i filed with County Clerk, and mu t be refiled every five year . May be for 'clo ed without uit, after twenty
days' notice in newl"paper, by sale at public auction. Di.;;po ing of,
or remoYing mortgaged prop rty from county without consent of
mortgagee, and witll fraudulent intent, qnal ' f ' lony. Conditional
sales. Void except a to partie thereto, unles in writing and copy
:filed in offic of ounty Clerk with vendor' affidaYit, giving purcha er's name, description of property and vendor' interest therein.
Mu t be refiled thirty days before expiration of :five year'.
Notaries Public. Notarial Certificate' made after Augn ' t 1st,
1 93, must show the date on which the rotary ' Commi ' ion e:xpire1:,.
Notes and Bills of Exchange. Paper commonl.} negotiable by
law merchant negotiable here. Pm ha e after nrntnriry convey
only equitic of vendor. Purcha e before maturity with notice of
defect is also ubj ct to equitable clcfcn "S. Three clays' grace
allowed. If date of maturity or third day of gm e fa1l ' upon a
unday or a legal holiday, demand and prote"t may be on the fol·
lowing businc ' day.
Replevin. Used tor cover personalty or it Yaiue. Together
with damages for its detention. Affidavit must sbow (1) a de cription of the property, (2) that plaintiff is the o,vn r or bas a speci~l
ownership or interest therein, ~tating the facts, and that he 1s
entitl d to immediate pos es ion, (3) that tb property is wrongfulJy detained, and (4) that the same was not taken on an order of
replevin or any seizure or final proce against the plaintiff, but if
taken upon execution the affi<lavit nm t show it exempt.
Taxes. Taxes upon 1·ealty. Lien from April first of current year
and p rp tual tber after. Become delinquent lay :fi.1 t of following
year. Upon Personalty. Lien on all personalty own >d by tax debtor from October first of y ar of levy. Delinquent from February :fir t
following. Certificate of ta:s: sale may be foreclo ed as mortgage
within ftye years from date of sale. May be redeemed by owner
within two years upon payment of princi1>11l with , wenty per cent
interest per annum. Purchaser at tax ale entitled to deed at end
or two y ars. Under holding of elJra,.ka court , tax deed are
of Uttle value in creating title to laud.
Wills. Per ' ons of fnll age and sound mind may dispo e of property, real or per::--onal, by will. Property ~ot so dev1"'ed de, cen~s
flCcordinO" to the law of E~tates (q.v.) In either case the property 1s
subje t to the debt of th ' de cendent. farried women are under
no disabilitr by reasou of th i1: marriage a , respects _tile cl vising of
their estates. \Vills must be ' 1;ued by the testator m the pre ence
of two witneR e' signing in hi , pre ence and in the presence of each
other at the rcquc 't of the testutor.
Nuncnpntive will::\ ccwsa nw,·tis, arc valid if proven by three
witne' e , and reduced to \Vriting within i.:s: dar after beiug
made.
Wills do not affect title to property until probated.

NEVADA.
BANKING LAW.
There are no provision in the con titntion or Jaw o~ the State,
and no examination is provided for. 'rhere are no reqmrernent ' to
make public tatement' showing the condition of bimk , and
none are made. Nor are the banks obliged to make retnrns to any
official. Bankers may do a they plea e in Nevada. Integrity in
the banker is the only afeguard.

COMMERCIAL LAW.
Acknowledgments may be taken within tbe State by aJudae or
Clerk of a Court having a seal, or by a Justice of the Peace or otary
public. If taken by a Juotice of the Peace in any county in the
State other than the county iu which the land is ituate a certificate
of the County Clerk is nee snry, showing he "'.as . an acting
Justice when the acknowledgment wa taken. It without the
State but within the United States, by a Judge or Jerk of a Court
h vi:dg a seal, or ome otary Public or Ju tice or the Peac ', or by
any ommi ioner appointed by the Governor of this ~tute for
that pnrpo e. Provided, that when the acknowledgme°:t 1s taken
by a Ju tice of the Peace, the ame shall be accompamed by ~he
certificate of the lerk of a court of record of tbe county, havmg
a seal as to the official character of the Ju tice and the authenticity
of his' signature. If without the United States, by some Judge or
Clerk ot any court of any State, K~ngdom or Emp_ir~ having a
seal, or by any Notary Public therern, or by any. :Mimster, C~mmi sioner or onsul of the United States, appomted to re Hie
therein.

61

A si~nments and In olvency. In~olvent ~e~tor ID!lY be discharged from their deb1,s by complying with prov1 1o_n of mso~vent
laws. An a signment of insolvent debtor, not m compllance
with in olvent law , i void a to creditors.
Attachment . Writ of attachment may be i1:>sued with s1~mmons, or at any time afterward on affidavit and bond. In an act10
upon a contract for the direct payment of money, made, or by the
terms thereof payable, in this State, which is not se~ured by m<?rt~age lien or pledae upon real or per onal property, situated or bemg
m th'e State; 1f sS secured, when such security ha~ been rendered
nugatory by the act of the defendant; or in an action upon i:, contract again t a defendant not residing in this t ate. In an action by
a resident of the State for the recovery of the value of property
where such property bas been converted by a defendant without
the con ent of the owner. Where the defendant has absconded, or
is about to abscond with intent to defraud bis creditor'. \\ herethe defendant conc~als himself so that service of ummon can not
be made upon him. Where a defendant is about to remove his pr<?Perty or any part thereof, beyond the ,iuri ' diction of the _court ,vitb
the intent to defraud bi' creditor . Where a defendant 1 about to
convert hi property, or any part thereof into money with intent to
place it beyond the reach of hi' creditor'. Where a defend_ant has
assigned. removed, dispo ed of, or i about to dLpose of his prop·
erty, or any part thereof, with the intent to defraud bis creditors.
Where a defendant has fraudulently or criminally contracted a debt
or incurrfjd the obligation for which suit ha been commenced. Garnishee process may ue had in aid of attachment. A fraudulent o
absconding debtor, or one who conceal' hi' property, or removes or
disposes of it with intent to defraud hiR creditors, may be arrested onaffidavit of the fact made; surety in not le ' than $500 being given
by the plaintiff. The Clerk of the Court shall i ' Sue the writ of attachment upon receiving and filing un aflidavit by or on behalf of
the plaintiff, bowing the nature of the plaintiff's cl:iim, that same
is just, the amount which tbe affiant believe the plaintiff is entitled
to recover, and the exi tence of any one of the ground~ for an attachment above enumerated.
Courts. Terms and JU1'isdiction. District Courts have origina
jurii::diction in all cases in equity, al o in law, when the title or pos1ession of land or mining claims may be involved or legality of any
tax, etc., al o in actions to foreclo e mechanics' lien; and in all cat-es
in which the demand, exclnsive of intert> t, or the value of the
property in controversy exceeds $300, al o in all cases relating t
estates of deceased persons, and per ons and e tate of minors,
insane per ons, etc. Jn ~tice' jurisdiction, $3 0, exclusive of
interest, and concmrent jurisdiction with District Courts in foreclosure of mortgages and liens, not exceeding $300, exclusive of
interest.
Executions. Stay of Execittion; Judgments. The law of
Nevada on these points are similar to those ot California [i-ee
ante], except that when redemption i made of real estate, 18 per
cent. mu t be paid in addWon to purchase money.
Exemptions. Homestead, 5,000. $50 of the earnings of th
debtor, if earned thirty day, preceding, if 1t i made to appear
necessary for the upport of the debtor, or bis family. Personal
and mining property, tools, implemente, etc., exempt same as i
California [which ee].
Interest. The legal rate is even per cent. per annum, but partiesmay contract in writing for tbe payment of any other rate. After
a judgment on nch a contract, only the ori 0 ·inal claim ball draw
interest.
Limitations of uits. Op en or store account and contract not
in writina, two year ; upon contract or in2trument of writing,
four years; recovery of mining claim", two year ; real actions, or
judgment or decree or any court. :five year . The above applies to·
contract before :March 2, 1 77; 10 contracts since that date (the
above periods), two years extended to four, and fom and :five reAcknowledgment or now
1pectivPly to six year . Revivor:
promise in writing.
.J Uarried Women. All property of the wife, owned by her before
marriage, and that acquired afterward by gift, beque t, devise or
descent, her separate property. In Nevada, under the tatute of
1873, the wife ha ab olute power OYer ber separate property, and
may di po e of the ' ame without tbe consent of her bu band. All
other propefty acquired during coverture by hn band or wife, common property, but controlled by hn band. Upon a di olution of
the community by the death of the husband, the homestead ~et
apart by the bu band and wife, or either of them, goe to the wife
and minor children, and if there are no minor children. to the widow .
The hu~band may di.spo e of onl-'-half of tbe common property by
will, exclusive of the homestead. The other half of the comm nnity property goes to the wife, subJect to administration and
debts of the husband.
:Mortgages must be recorded. To mortgage of perrnnal property
is valid anl e posses ion is delivered to and retained by the mortgagee, except that growing crop and other per onal property may
be mortgaged by the execution. acknowledgment and recordincr
of a mortgage instrument without nch po se sion. l\lortaaae~
0
0
of real estate can only be foreclo ed by action for foreclo ' nre.

ommercial paper includes
.No~es ancl Bills ot Exchange.
prom1seA to :ray to order, or bearer, without conditions for a sllm
certain and at a time c rtain. "O requirement re pecting place ot
payment; but, if place of payment is named, demand should be
made before protest at place named. Prote t and notice will bold
the indorser, and the general statute of limitation, ix year , and on
OI?en account, four rear{', i' the limitation of the right of action.
Fifteen per cent. damages are allowed on domestic, and twenty per
cent. on foreign bills protested. Grace i not allowed on sight drafts.
Suits. Practice is under a Code, and there is but one form of
omplaint
action, known as a civil action, and commenc d by :fl.Jina
0
ervwith the lerk of the Court and the i uanc of a summ ons.
ice on non-residents may be had by publication.
Taxes ar a lien upon the prop rty a e ed and the r ul estat
of _the owne~· thereof from the :fir t Ionday of March in each year.
Smt for delrnquent taxe may be commenced by direction of th County Commi ioners, and there is red mption of real e tate sold
at tax. ale in the same manner as realty sold under ordinar ,
Original from
e:xecut10n.

UNIVERSITY OF WASHINGTON

620

BANKI G A D COMMERCIAL LAWS- EW HAl\lPSHIRE.

BANKING LAW.
(Revi ed by E. S. & H. A. C 'ITER, Attorneys at Law, Nashua.)
Bank can be chartered only by a spec1al act of the legislature.
Building and Loan ARsociations may be organized as voluntary
a sociation . Once every year a thorough examination shall be
made into the condition and management of every bank, building
and loan associations and trust companies in the State by one of
the three Bank Commissioners. Tbe Commissioners shall on or
before the 1st day of October, annually, file their report with the
Secretary of State. They shal] give in their report a detailed statement of all the items of expense of each institution, with the names
of the treasurer and clerks, the salary of each, with the kind and
amount of stocks and bonds held by each, with the par value
thereof, and the cost and the market value at the date of examination. The cashier~ of every State bank, and every association or
partnership formed for the purpose of transacting: such business as
is usually transacted by banks, ehall, on the first Monday of March,
June, September and December in each year. make a statement of
its condition on eaid day, specifying in seµarate columns the capital
stock actually paid in; debts due the bank secured by pledge
of its stock; valHe of real estate belongi11g to the bank; amount
of debts due from directors; amount of specie in the vaults;
amount of bills of other banks on band; amount of deposits
in the bank; amount on deposit in other banks for the redemption of its bill ; and the amount of bills of the bank then in
circulation; w~ich statement shall be signed and sworn to by the
cashier, and returned to the Secretary of State. The trustees of
Savings banks 8hall make a thorough examination of the affairs of
their respective banks once in every six months, and a report of
such examination, signed by a committee of the trustees, shaH be
returned to the Bank Commissioners, and a copy of the report pub
lisbed in a newspaper p11blisbed in the place where such bH1Jk is
e tablished; or, if there be no newspaper in such place, then in a
ne 1vspaper at 1be nearest place. Savinrrs banks may invm,t in any
class of secu1 ities, except in loans to any person or corporfltion
exceeding ten per cent. of its deposits; in loans outside of New
England, or in bonds seemed by mortgages on real estate situate
outside of New En~land, exceeding forty per cent. of its deposits;
in loans or bonds secured by mortgagf's on unimproved real estate
situate onts1de of New England; in loans secured by pledges of
securHies in wbicb it can uot invest; in stocks or honds of any one
corporatio1, exceeding ten per cent. of its deposits; in stocks in any
corporation lc,cated outside of New England which bas not earned
and regularly paid dividendt- during the then next preceding five
years, or during 1be tben next preceding two years in a l'- ew
.E ngland corporation; in the stock of any company, except National
banks, organized under tbe la\\S of another State, which is engaged
in tbe busnwss of st>lling or negotiating loans, stocks, etc.; in bonds,
noteR, etc., of any county, city, town, or district ontside o_f New
England whose net indebtedness exceeds five per cent. of its last
valuation; in bonds, notes, etc., of any other corporation, except
railroads, whose indebtedness exceeds the amount of its capital.
COMMERCIAL LAW.
Acknowledgments of deeds or other conveyances of real estate
must be made before a Justice, Notary Public or Commissioner,
or in foreign countries before a Minister or Consul of the United
States. The signature of the gr~ntor must be attested by two
witnesses.
Assignments and Insolvency. Assignments for benefit of
creditors to be filed in the Probate Court of the county in which
debtor resides. Debtor, within ten days thereafter, shall file list
of creditors, verified by onth, and within fifteen days a schedule of
bis property. Involuntary assignment made by debtor upon
petition of creditors whose claims amount to $300 and upwards;
as ignee to be appointed upon notice and upon the recommendation
of two-t birds in numbers and a majority in value of those creditors
who filed 1-tatcment of their accounts. Creditors to file statements
of their accounts upon oath within two months, and all objections
thereto to be made within four months after the filing of tbe
a ignment. CJ aims may be proved any time before final dividend,
and objections to such claim must be made within thirty days
thereafter. Assignee shall immediately give bond, and return
inventory of property. A ignee to render account within six
months. \Voges of clerks,, omei-:tics, and other laborers to be paid
in foll, not exceedi11g $50, for eervice rendered within six months
prior to the beginning of insolvency proceedings. And taxable
co~ts of all uit begnn in good f11ith which were dii::solved by the
proceeding . Debti- dne the United t.ates and taxes. Debt0r
given a tull di~charge from all his debts upon the written ap_proval
of two-thll'd of his ereditor in number and amounts, and without
such approval upon paying fifty per cent. of bi debt .
Atta hment - of all rf'al and per. onal property may be made on
the original writ, and conf-ititnte a valid lien on the property for
tlJirty day after j ndgment, within which period the execution
mu t b levied to preserve and perfect tbe lien. All attachments
take precedence in order of priority, except in case of liens of
builder~, contractor , etc., VvlJen they take prec de11ce in the order
of priority of the lien. Tru t proces (analogon to garnishment
in other ·tate ') may be uf3ed to rea h money or cr('dit of the defendant in the baud of anoth 'r.
ave aR aga\n t claimR for ne essarie the,rngeR ofth defendant up to $20are xernptfrom such
procPs . In action on contract ·wbere dc,bt exceed $13.33. d •
fendant m~1y be arre ted on aflidavit of plaintiff that h (cl f ndant)
ba cone al d bi prop rty or is about to leave the State to avoid
payment of bi d bt .
Bills of L::.ding. Tb •re bas heen no 1,gh-lafion on thi subject. 'rhe common law obtain .
ur court have held that a oill
of Jading repre ent the property and i transferred by deJiyery
merely, without regard to indorsement or word of negotiability.

Collateral. There ha.., been no Ftaturory enactmeut" on this
subj ect. A transfer of ..,tock mu t be recorded in the book of the
cornoration to be valid against attaching creditors of the pledgor or
assignor.
Contracts. All contracts made by a person undt'r guardianship,
or by a per-:on alleged to be in!'lane, or a spendthrift, after ervice of
papers to ecure guardianship, are vo_id. All gambling contract
and contracts made on Sunday are void. I n nll contract for labor
ten hours labor shall be comddered a dnv' wo1 k.
The nncient Jaw, known as the tatnie of fraud~ is re-t nacted on
our statute books. Under that act a11 contracts for the $ale of land
shall be in writing; no action shall be brought to charge an administrator persona11y, nor to chnrge a person to auswer the tlcfault of
another, nor upon an agreement made in consideration of marriage,
or that is to be performed in one year, unle ' s snch contract shall be
in writing.
No contract for the sale of goods for tbe price of $33 dollars or
upwards shall be valid, unless tbe buyer shall accept and actually
receive a part of the goods so sold, or give something in part payment to bind the bargain, or unless there be some note in writing
signed by the party to bechflrged.
No asf"fanmeDt of wages to be enrned in the future ball be valid
unless it shall be a<'cepted in writing and a copy filed with the clerk
of the town where the party making it resides.
Corporations. Corporations can be chartered bv the Legisln1ure. Voluntary corporations can be formed for \my purpo e
except banking, life mi::urance, and railroadrng. Five per$ons may
associate themselveR together under written article$ of agreement,
which articles sball r>ct forth the corporate name, its object, place
of business, and amonnt of capital, which may be miywherc from
$1,000 to $1,000,000, with the par value of the slu1.res at i10t Je , than
$25 or more tban $500. Tbis agree,, ent shall be recorded in the
office of the ~ecre1ary of State, am1 in the office of the clerk of the
tmYn where the bnsinel"s is to be carried on.
Every corporation wbicb shall not carry on its business in tbe
State, obtaining a chartn here, i"ball pay a charter fee Hts follows:
1 per cent. on the first $100,000 of its capital,¼ of 1 per Ct>nt. on the
caphal between that and $1,000,000. and % of 1 per cent. on tbe
balance. The said charter fee shall be paid 'Shen the articles are
recorded.
•
The clerk of every corporation sh i 11 be and continue a resident of
tbe State. And at least one of the directors sball b(' nu actual resident of the Stntc, if tbe corporation has any stockholdert- resident
in the State. No corporation sball sell or di~pose of any of itR tock
at n price less than the par thereof. A note is not payment therefor. Cumulative voting is not permitted. Stockhohlers iu all corporationR except banks and railro1-1ds shall be liable for all the
debts of the company 1rntil tl1e capital i~ fully paid, nm1 a certificate undrr tbe oath of the treasurer and a majority of the directors,
shall have hcen recorded with the town clerk. Eve1·y corporation
except banks, railroads, and insurance companies, sbal I annually
in May. retnrn a worn report, signed by ibe treasmer and a majority of the directors, of its al"E'et.s, liahilitics, and any assessment ,
which report shall be recorded in th,e o:flicc of the Seer 't!llT of Stntc-.
A failure to make such return renders the officer , pers011ally liable
for all tbe company debts.
·
Court s. Ttrms and Jurisdiction. Supreme Court, holding
from two to four termA a year in each county, ba8 original jurisdiction of all actions, and fu]] equity powers. 'l'here are Probate
Courts with the usual jurisdiction in eYery county, and j uriRrliction
in caRes of assignment. Justices of the Peace have jurisdiction up
to $13.33, and cnn render judgment upon confession up to $200.
Police Courts have jurisdiction to the amount or $100.
Depositions. The party proposing to take clepos1tion ball
give tbe oppos~te party a notice in_ writing, signed ?Ya Justice of
the Peace, which shall state the time aml place of such taking.
They are taken before a ,Justice of tbc Peace or a Commisi:-ioner.
They can only be taken by written questions and an wer, proposed
by counsel and ad mini1:<tered by the magi 1rate. Objectio11s are
minuted on t~e. deposition b_v _the. magistrate, ~~1t he 11oe~ not pa s
npon the validity of sncb obJectJons. Depos1t10ns hall be sioned
by the depone11t, and be E'hall be sworn 10 tesiify to the trntl( the
whole trutl~, and nothi11g but the truth. They must be enled up
by tbe magistrate and directed to the court before whom they arc
to be tried.
Executions may be taken twenty-four hon rs nftcrjudgment, and
are returnable before Justice's aud P_olice Court in sixty days;
be1ore Snpreme Court, at the next trial 1errn of court. A review
may be granted by the court when injustice appears to have been
done through acci<lent, rniF:take or misfortune. Real property
taken under execution may be redeemed within one year.
Exemptions. Homestead to tbevalne of $500; nece sary appare \
and bedding and household furniture to the value of $100· Bible~
and school books in use in tbe family, library to the value 'of $200·
one cow, one hog, and one pig, and pork of nme when slaughtered!
tools of occupation to tbe value of $100· six heep and their fleeces'
one cooking stove and its furni ture. provi:-ions and fu l to the value
of f50, and one sewlng machine; beasts of the plow not exceeding
one yoke of oxen or a horse, and bay not exceeding four tons.
Inter .. st. At the rat~ of si~ per cent. per ~nnum. If any person,
upon any contrar.t, r c 1ves rnterest at a higher rate than six per
ct-nt., be forfeits three times the excess to the person aggrieved and
Rniug th eretor; but no contract is h1validated by rea ' OD of any
stipulation for usnriou intereet; tbe money actually advanced
~ay be r covered y-rith ]egnl interest. lntL·r st upon all judgments
1s at. the rate of s1x per cent. per annum. foter t upon unpaid
taxes js at the rate of ten per rent. after the ht Day of December
following their aRses me_nt,_until sal of property taxed, and twelve
per cent. tb ert>aft er unt1l time of redemption. Upon cmrent acconnt intereF-t commences from date of demand for payment
unles~ controlled by the cu tom of trade, which is a question of
fact to be determined by a trial thereof.
Juc~gments are not_a_li n upon real tate, exc pt when attachrre11t 1 mud_e on the orig,1_nal l roce s, wh 'n a Ji_en xist for thirty
day afl r :iuclgment. six per rent. annual rntere t al1owed on
judg1:i~ents. Io a ·tion on mortgaires tbe judgment i · conditional,
that 1 ! the mortgagor pay the amount of the j ndgment within two
month s tb judgm 'U.t . hall b void.

unginal from

UNIVERSITY OF WASHINGTON

BA KI G

D COMMERCIAL L S'v -

. LimitatJons of ~uit.. Account and simple promi sory notes
six years utter maturity; Judgm nts, ealed. instrument!:!, and notes
secured by mortgage, twent.v y ar'. ':I.1ime of debtor's absence
from the Stat i excluded. V rbal acknowl dgment and promise
to pny i utliclcnt to revive the d ~bt.
Marde<l "\Vo men retam nll prop 'rty owned by them before marriage, or acquired arter~\1 ard in any way exc pt, througb. prop rty
of tb. husband, to theu· sole and separaLe use, a if unmarried.
All their contract in r lation to s uch property are valid and bindin_g, and ~11 th ir other contracts ~re binding, except tho!:le made
with then· hu ' band ', or a sureties or guarantor for their husbands, or for and in bebalf of their lrnsbands. Upon the death of
wife, th husoand 1s entitled to ubsrantially the ~ame hare of her
estate a she would be of his e tute in case of his death. They are
liable for debt.a ontracted while ingle, and their vroperty may be
attach 'd to pay them. 'rhey ar al ' 0 liubl for their tort before
marria,g in relation to tbeir sera rnt.e property. The husband is
not liable for 1.he wife's ante-nnptial debts, and can not convey his
improved real e 'tttte so as to bar his wife's right of dower and
homest.<:'ad without her consent. Married women of the ao-e of
twenty-on years 1~1ay dispose of' their property by will, but tot to
affect husbnnds' ri ght , nor can they convey so as to deprive the
ht1sband of his right.
Mortgag , real estate; a conditional conveyance shall be ineffec t u~ 1 uule ::3s the sum to be paid, or th e thing to be done, is
tated m the c01~veyance. All mor tgao·es t-tha l be ' ign ed in the
presence of two w1tnesse and acknowledg d bt>fore a Ju tice of the
Peace or a Notary Pnblic. Mortgages mny be foreclo' ct, first, by
entry under proceB of law into t.he pr rnises and continued actual
pos ession for one year. Second, by peaceable entry in tbe presence of two wituesse1- aucl continutd actual pos,. e sion for one year.
The affidavit of entry shall be 1 confrd and publi bed in some
new paper published in the co unty . Tb.ird, by the mort 0 agee in
pos ssion taking formal posse ion under the 13,econd method.
Mortgag of personal property, to be effectnal, the mortgagor and
morrgag e mu t tak ~ and subscribe the followin g oath: '' ,ve
severally wear that the fore goin g mortga,ge i-, made 1or th purpo e of :securing the debt sp 'Citied in tb e condition tbereof and for
no other pnrpos whatever, and that said debt wa n t er ated for
the purpose or enabling the morto-agor to execute the aid mortgage,
but is ajnst debt, honestly du and owing from the mortgagor to
the mortgag" . ''
The mortgage must be recorded in the office of the clerk of the
town where Lb.e rnortgahor reside . and in case of the n on-re idence
of the mortgagor, it mu t be rec rded in the oflice of the clerk of
the town where the prop rty i situated. Th mortgao·or may
retain po._:'\ e sion of the property, 'l'he mortgugor can nots 11 t he
mortga,..,ed property unle ,' the mortgagee con ents in writing on
the rnardu of the mortgage, which shall be recorded where the
mortgage is recorded. The penalty of a sale without such con ent,
is doubl e the value of the property. A fine of :$1,000 can be imposed
if the morto·agor conceals th mortgaged propt>rty. Mortgage ' can
be forecl0sed by nuctiou sale thirt.y days after maturity, by giving
tb.e mortgagor fom days' noticr of th time and place of the sale.
This law not applicable to furniture lenses.
Notes and Bills of Exchange. No particular form of word
nece Sitry to con'3titute a negotiable promissory note. The words
"value r 'Ceived" not e~senth1,I. Bills of exchange must be absolute
as to amount, event, fund and person.
o requirements a to place
of payment. Demand note must be protested within sixty days
from day of their indorsement to bold indors rs. All negotiable
paper, save thaL payable on demand, is entitled to three days of'
grace; nnd all such paper maturing on Febrnury 2~, M11y 30 or July
4, 01· on Urn following day if either of these days occur on the Sabbath
or on Snndny, Thanksgiving, Fuet, Christma Day, Labor Day,
and biennial election aay, is dn e and payable on tbe next precedino- day, not being one of these days, and must be so noted
and protested.
Suits. If either party ref';ides in this State an action should be
brought in the county in which one of them resides. When both
are non re idents, the action may be brought in that county where
prop rty of the defendant can be attached.
Taxes become a lien upon the realty simultaneously with their
asse ' Sment (Avril 1, of each yenr). One year from the day of sale
is allowed in which to redeem land sold for taxes, costs of sal and
interest at th , rate of twelve per cent. per annum being added.
"\Vills. EYery person, including married women, of the age of
twenty-one ,,ears, of Pane mind, lllay ctitlpose of their property by
will. No will is :ffectna1 to pa property unle- it i ' in writing
ign ,d by the testator or br ome person in bis pre enc and by h1s
exprr - direc 1 ion, and attested in llis presence by three or inore
credibl' witm''8CS. Cnn be in type writing. A seal is not nee ss1u-y. Foreign \\·ills v ..1lid in th' St ate where execntecl may be
allowed here. Every chi ld or grandchild. or every child born nfter
the dee ,ase of the t tator, s hall b' entitled to hi::- di ' tribntive ehare
in the estate, if not. named in the will.
foreign will is provt'd here by 1he production of an authenticated copy thereof, togeth r with an autheuticat ,(1 copy of the
probate thereof.

NEW JERSEY.
BA KING LAW.
(Revised by

IIA. .

Ew.A.N

fERRITT,

Attorney at Law, Mount Ilolly.)

Th rear no provi ions in the con titution as to bank · bnt the
statute provid ' that any number of p erson , not le th~n seven
citizen of" the Hrate, may a ociate to establi b offi e of discount'
dcpo it_ an~.c~rcnlation_, on ~he term and conditions, and subject
to the l!ab1l1t1e pr ~ en bed m the a t; and said a ociation shall be
d nominat d ti ''ban k". or '' banking company;" but the aggregate amount of the capital stock of any such association shall not

EW JERSEY.

621

be less than $5 ),000, nor more than $2,000,000. The persons so associating shall! under their band and seals, make a certificate, by the
terms of which such association shall be bound, which shall specify th name assumed to distinguish nch association; the plu,ce
where the bnsiness is to be canied on; the amount of the capital
stock, and the number of shares; the name and places of residence of' the shareholders, and the number of shares held by ead.1
of them, and the period at which such associations shall commence
and terminate, which shall not be for a longer term than twenty
year . rrhis certificate shall be proved or acknowledged in the
sami manner as deeds, and recorded in the otl:ice of the Secretary
of State and in the Clerk's office ot th e county where the office oi
such as ociation shall be established; but it shall not be lawful for
any association to locate their oftice in any other than one
of the county towns, or incorporated cities, boroughs, or
towns, except by permission of the Commissioner of Banking and
Insurance. to whom all matters relating to banks ar committed,
and in whom lies the rigb.t of examination. The legislature
may dissolve any company created by virtue of this act.
'l'he Chancellor may order an examination on application or
creditors or stockholder . Banks u~ually publish a statement;
but the act does not seem to require 1t. They make annual
reports to the State rrreasurer. Savings banks may invest in
United States bonds, bonds of this State; bonds of any tate, city or
county which has not default don principal or interest witbin ten
years; provided that in ca e of city 0 1 county, the total indebtedness
is li1nited to ten per cent. of assessed value, and in bonds secured
by mortgages, which shall be a first lien on real estate.

COMMERCIAL LAW.
Acknowledgments of' deeds are made within the State befvre
the Chancellor or a Justice of the upreme Conrt, a Master in
Chancery, Judge of the Court of Common Pleas, Comm is ioner of
Deeds . Surrogate of County, or Regi ter of Deeds; without the
State, before a Justice of the Supreme ourt of the United States
or a District Judge of thP. ame, or a Judge or Ju tice of the Sn:
preme or Superior Conrt of the State, District or Territory, or
before any Mayor or Chief Magistrate of any city, or before a
Judge of the Court of Common Pleas or County Court of such
State, Di trict or rrerr1tory, or Commissioner for New Jerey or by
any ofticer authorized at the time of such proof or acknowledgment, by the laws of ttie State wherein the ame shall be made
or taken, to take t he acknowleclgwent of de ds of lands lying and
being in such State. In case the acknowledgment ii:, made before
a Mayor or Chief Iagistrate, the certificate mn ' t be attested by
the seal of the city; if before a Judg of the Court of ommon
.Pleas or County Court, or other officer, it must b e attested by
seal of such court, and certified by the Clerk of the Court. If
before nn ofticer not enumerated bnt autboriz 'd a above stated it
must be certified t hat he i such ofticer and aut,borized to ta'ke
acknowledgments in the State in which tne acknowledgment was
tak 'n. In foreign countries acknowledgment or proof mav be made
before any <.;0urt of law, otary Public, Mayor, or chief mao-istrate
or any Ambas ador, on ul, onsularAgent, or otherrepre ~entatiY~
of the United States.
As iguments and Insolvency. The insolvent laws provide for
the di charge of a per;;.on und 'r arrest for debt or damao-es
on his
0
deli_vering up all his real and per onal property to his creditors.
Assignments by debtors for the benefit of er ditors must be without
preference, and all others are void. Debtor must tmnex sworn inventory. Wages ?f servant_ , clerks au~ la1?orer~ up to $300 each
are pref erred claims. Assignee mn t file list of creditors at the
end <;>f three moutb.s,_ and m_ake dividends at the next term of court.
Creditor not presentmg chum does not share in the dividend but
retains his right of action a 0 ainst the debtor.
'
Ate achment. A creditor may attach the property of a nonresident or absconding debtor by making oath to the fact and to
the amonnt or his claun, before any ofticer authorized td admmister oath or affirmations. Attachmente are for the benefit of all
applying creditors. Debts not due muy beproY d und r any attachmen~ is ' ued, ~nd receive their pro rata dividend. No attachment
can issue_ aga~n t the memberi:< of a copartnership, where one '>f
them resides 1~ the State, no~ of the wages of a non.resident empl?ye at the s~1t of a non-r s1dent creditor. Garnishment can be
effected only rn attachment cases. Attachment in the nature of
:!\[a. ter' process may is ue_ ao·ainst a resideot dehitor in ca es in
wh1c1?- he conl_d b' brought rnto court upon a c1:1,pia ad re pondemdum man act10n noon contract.
Co, porations are 01:ganized under General Acts for various
purp~sc by the ex cut10n and acknowled 0 ·ment of a certificate
showrng: (1.) The ~ame ?f the corporation. (2.) The place or
pla~e where the b~1sm ss 1s to be conduct d nnd the objects for
wh1 h ~he corporation shall be formed. (3.) The total amount of
th_e caµnal stock (I1;ot less than $2,000); the amount with which they
~v11l cou~mence busm~ss (n~t less than $1,000) · the nnmberof hares
rnto wl~1ch the same 1s divided, and the par valu . (4.) The names
and residences of the . tockhold~n~, and the number of hares held
by each .. (5.) The per10d~ at ~h1ch the corp_oration, ill commence
~nd t r~11m,;te, n9t exce dmg fifty y ars. This certificat~ is record d
m th~ lerk s Office of the o~m~y where the principal place of bueine s ~s, and after~ards fil d m i1?-e office of the Secrctaryof tat,_
Fore10-n corporat10ns may do bu mess here, the A t prov"idinohow0
ever, the method by which they may be su d.
'
Courts. Terms and_ Jurisdiction. Circuit Courts and Courts
?f ~0~IT?-on fleas, h?l~mg three terms a year in each county, have
Jnr1sd1ct10n rn all c1v1l cases, but to carry costs mus~ recover at
J~as~ $100, exceI?t that the Court of Common Plea har, n..., jurisd1ct1011 wh~re title to lands comes into question. The Suprc:ne
Cou_rt, ~olclrng three terms a year at Trenton. has al o original jurisdict10n m all case , ·~mt mu_ t ~·ec?ve~· $2UO to carry costs. Court of
~hancery ha exclns~ve qmty Jn_ned1~t1on, und its at Trenton thr e
times ~ yea;r. Justice' and City D1 trict Court j nrisdiction coexten_s1ye w~th _Co~m~y, $200. The Court of Errors and ppeals htlS
no ongr?al J~1nsd1ct10n, but he_ars appeals ~rom Court of :hancery.
a~d P!eiogative Court, and writs of error from upr me Court and
Circmt Courts.
Original from

UNIVERSITY OF WASHINGTON

B

KING A D CO)Il\'.IERCIAL L "\

Depo itions. Of material witness r esiding in the date, who
·, ancient or ve ry infirm, "ick. or libont tog,, out of tbe 'tate, m ay
be taken de /J1-n(; t-ss e, before a Judge of the upreme onrt, Judge
of the ourt of Common Pleas. 'upreme Court ommissioner, or
~Ia-,ter in ( 'hancery, on notice ro adYerse party. Or material witnes
re iding our of the ::5t11te by Yirtue of a commi :-i n is ' uecl out of the
Conrt before \Yhich the action i pc1H.lin!!. either on interrogatories or
orally upon no1 ice. The Commis::,ioner must first take and sign an
oath.' faithfully, fairly, nnd impartially to e.s:ecnte tl1e said commision 'before any oftice authorizl'd!to take an oatll. Such deposition s
mar also be taken before a ,Judge of tlrn upreme Court. or Di ·trict
Court, or 'ourt of Common Plea~. ommissioner of Deeds appointed
h, the GoYernor of the t:\tate of :Xew Jersey resident whe1e the witnc:--s it- . on notice of one day, exclnsive o·f ::5undHy, for every fifty
mile of traYei aod not less than teo daYt- in all. If the witness
re~ides 011 the Pacific 'oast, the Court· fi:s:t> the lengrh of notice.
If io a for~ign tate or 1dngdom. not less than forty days, notice
mu.:;t be gn·en .
~~e Jefterey· Law Precedents, p. 260, et seq., and Dkkinson,s
Chancery Precedents, p. 217, et seq., for forms and instruction •
ExPcutions is"ueimmediatelyupon a rendition of jutlgment, and
.are returnable either in term or v acation. A sale under execution,
i sued upon a junior judgment, dii:.-charges the lien of a prior judgment ou which no execution bas been issued and levy taken. The
proceed are applied to the payment of the execution upon which
tbe sale i had. There is no stay of execution, except on those
which are i-.suecl out of Justice,s Courts. I n these courts thirty
days are allowed on sums up 1o $15; three months up to $60, and
six month' on all urns over $60, by debtor giving good security.
Tbere is no redemption after sale in any case. "\Vhere executions
have been returned unsatistied, if the sum due on a judgment
amounts to $50 or upward, the Court out of which said executions
i sued may, on application of the judgment creditor, make an order
compelling the debtor to appear before the officer n1:1med and
make discovery on oath concerning his property. The judgment
~reditor shall present to the Court a petition verified by oath, in
which he shall state the amount due on said execution, the return
made, aud bis belief that the debtor has property in his own right
-0ver and above that which is r e:-erved by law. Arrest on a
capias can only be had 111 case of fraud or attempted removal or
-disposal of p roperty with intent to defraud creditors.
Exemptious. The lot and buildiug thereon, owned and occupied
by the debtor, being the head of a family, to the valne of $1,000,
providing th&t in the debtor's deed it is set out that the prope rty is iutended for a homestead. or else that notice to such efl'ect
is filed iu the County Clerk's oflice. Personnl property to the
amount ot $200, besides wearing apparel, owned by a resident head
-of a family, appraised by three persons appointed by the sheriff;
and th u widow or administrator of a deceased person may claim
+be same exemption of $200 as against the creditors.
Interest. Legal interest on debts and judgments , six per cent.
U ury is punishable by forfeiture of all rnterest and costs. Interest
-011 an open account accrues on each item from its date, as at
common law.
Judgments become a lien on lands from time of actual entry,
aud so remaiu for twenty years, unless cut out hy an exe~ution
isi::ued on a younger jndgrneut, under which a levy is takt n. Where
there are se\'eral judgments, that nnder which the first levy is
taken takes priority. Judgments recovered or docketed in the
upreme Court are a lien on all lands of defendant within the State.
Limitations of Suits. Contracts not nuder senl, six years; real
action~ and judgments, twenty years; notes secured by mortgage
and contracts under seal, sixteen years. Revivor: Part payment or
new promise or acknowledgment in writing.
Marrit·d ,vomf>n h old and control their property, real and
per onal, precisely as if unmarried. But a married woman can
not become an accommodation in<lorser, guarantor, or f'.urety, nor
euu she convey or inc umber real estate wi , bout her husband, except
she is living in a st ate of separation from her bu"band, and there
}rn, ... been no if'lsue ot snch marriage, or her hnsband is nnable to
join through lunacy or other mental incapacity, or in cai::e an assent
t o the same bas been siglled aud acknowledged by the hu band.
A marned woman may make a will ol' her "eparate estate as if she
w<'re i:-ole. but can not defeat her husband's iutere t in her real
e:--tate, although she can make absolute dispositioll of her own
private peri::onal property ,Yithont regard to her hu band. Widow
take. do\\er iu one-third or real e tate of which her husband was
-.. •ized at any t i.me duriug coverture, to which she ha signed no
deed of i eka:,e.
1\lortgages must be under seal, and the wife mu t join. Forecloi-ure b by suit in eqnity. Chattel mortgage , unless accompauiecl h.v immediate delivery and followed by continued change
of po"-.:e:--sion of thiugs mortgaged. me a olntely mid a againet
cred•to1· and . nbs •quent bona fide pnrcha 'ers and mortgagees,
unle--.~ :--aicl morL·age haR be<:>u aulrnowledged or proved according
to law, ancl recorded in a book for that pnrpose. Chattel mortgages
mni-;t have an aftidav1t annex 'd, 'eLti ng out tbe interetit of the
mortgagee, consideration of the m0rtgage, and the a monnt due and
to grow due thereon; said nttidavil to be made hy the holder. Ubatfrl mortga!.!t'" upou hon~ellolcl fornitnre in the use of the family,
uu'e .. , ~i,·<'n for the pnrch.t 1· therPof, mu~t be execut 'U and ack nowlcd!.!t'tl by both 1111-;lnn<l and wife.
Totf's and Bills of ~:xchangc. Promi~ . ory notes, bills of exchange, clwck · and draft , are on tlle 1--ume footing. l\lH,y or may
uot be payabl e at Jixed place. Due diligence mn t be u ' cl to find
the maker, if no place L tatecl. I1lland bill of exchange are, in
geuPrul. i-nbject to tb' law of' fon·i~n bill'; they mu t be protei--t ,c1. .'igltt hill or draft:-<, ex. cpt tlto,-,e on banking aRl-lOCiations,
have thre, dayi-:' grace. 'J'he action reqnir ,c1 to hold indorser is
the . ame it. under the general m ·rcantile law. DraftR and notes
due on a 11g<ll holidny a rc payable the day after nch holiday, and
uotice of 111111-paym 'llt may he given within tweuty-ronr hour later.
Ir the l :,!Ill holHlay ·honld fal I upon a 'nndtty or ::\fonclay, l)j]] are
pnyuble on Tuei::;day, and noti ·e may be given on \V d11e day.
Legal holiday are: January 1, F bruary 22, fay :30, Jnly 4 first
Monday in ,'eptemh r (to bJ kuown a. Labor D11y), December 25,
Thuuk <riving Day, and all clay on which a g ueral ·l •ction for
memberR of A emh1y may be held. If any of the. e day~ happen
on 'unday the holiday i kept Monday. J~very 'aturday from

EW l\IEXI 0.

tweh·e o clock at noon to t,YelYe o clock at m idnight is a halfholiday, ·w ith ame proyision as to payment of note .
Suits are commenced by writs of summons, capias, warrant, or
attachment. Service by pL1blication may be made in equity only,
and in common law courts, in case of a forei~n corporation, if
service can not be made on oflicers or agent , director , clerks or
engineer El .
Taxes are a lien for two year~ from the time they be~ome payabl e and l ands may be sold for taxes delinquent one yetu. There
is a ~ivh t to redemption for one year after the time of sale.
Wills . There are four requisite to make a valid will in thi
State. 'rhey are : (1.) Th at it be in writin g. (~.) Thnt it be igned
b y the te ta tor. (3. ) That nch "irrnat nre shall b' made by th'
testator, or the making toe1 et> f acknowledged l>y llim in the_ presence of two witnesQe.., . (4.) That it shall be declared to be lus la t
will in the presence o f these witne ' es.

NEW MEXICO.
BANKI G LAW.
(Revised by WILLIAM J. l\11LLS, Attorney at Law, La Vegas.)
Any number of pert-ons not less tban three may establi ha bank
of disrount and depo it wi lh not less than $30.000 capital. of which
at letist fift\ per cent. must be paid at once and 1he remainder within
one year. ·statemen ts showing condition of bauk must be sent to
Territorial Treasurn in January and July. and pnhlished at Jea t
once a week for three succe f:o\i ve weeks in a newspaper. Officers and
stockliolders are liable to the extent of their shares, except when
stockholder sells his stock, liability ceases from one year after
transfer. Stockbolders collectiyely are noL liable to the bank as
principal deb1ors or sureties for rno1e tban two-fifth:- or amount of
capital stock actually paid in, and remaining undiminished by
losses or otherwit-e. If any presidt-'nt, director, manager, ca hier,
or other officer of any banki11 g iu titut1011, or the o,vner, agent, or
manager of auy private bauk receives deposits afrer knowledge
of bauk's insolvency, they are g uilty of larceny, and the failure of
the bank is prima facie evidence of such knowledge.

COl\I)IERCIAL LAW.
Acknowledgments of deed ~remade, if taken in the Territory
before any Judge or Clerk of a court of record hav111~ a seal, or
before a Justice of the Peace or Notary Public. lf rnaue without
the Territory, and within the United States, belore any United
States court, or any court of any State or Territory hnving a seal,
or before the Clerk or Judge of any such court, the genuineness of
the signature and official character of such Judge to be certified to
under the seal of his court by the Clerk thereof, or before a Commissioner of D eeds for New Mexico, or before a Notary Pub11c
having 1..n official seal or before the Clerk of any court of r cord
having a seal. If taken without the Unit ed States, before any Clerk
of a court of record having a seal. before any Notary Public, Consul,
or Vice-Consul of the United Statei- haying a eal, or before the
Judge of any court of r ~cord having a i-~al. In lu ' t rnstance the
genuineness of Jud~e's 1gn_atme an~ ~)fficial characte_r must be certified to by some officer havrng au official i-t:al under hi ~ charge All
officers out or the United ::,tates must have tlle1r official character
certified in u ual manner.
Assignments. Voluntary general a8signments may be made for
the benefit of creditors. Deed of assignment aud inventory must
be promptly recorded in the county or countie where the ai:-signor
or assignors reside. Every ale, mortgage, or a ' ignment made by
debtors, and every judgment suffered by any defendant, or any act
or device, done or resorted to in con temp lat ion of in olvency or
with the view of giving a preference, hall operate n an a ignment
and transfer of all the real and personal property of the debtor for
the general benefit of creditor ; but this ::,hall not vitiate or affect
any mortgage made in good faith to ecnre any debt or liability
created simultaneously with such mortgage, which must he recordrd
As ignments sball not become operntive until the
forthwith.
a sio·nee shall have executed a good ancl Rnfficient ])(Ind, to be
app~oved by the jnclge of the District Court. If the assignee
shall fail to settle up the e:-tate within twelve months and
diFtribute the ame, any creditor may fl.le a bill or complaint and
compel ettlement, as provided hy the act. ' tatement of account
of the tru t mn t be made to the District Court at ilrst regular term
after as~igrnnent, and at lea t every three montbs thereafter.
Claim to be approved within tlne' months nfter date of assignment, at ome place advertised. Known creclitor to be 11otified by
letter. Rejected claim' may be ued for iu thirty days after rejection. First dividend muf'lt be declnr d within thirty day after time
for presenting claims ha , expirl'd, and a ' often thereafter a five per
cent. can be paid, after dl'dncting accrued exp n e . Previous
exemptions under the law are re 'erved and mainta~ned.
Attachments. Creditor who~e demands amount to fifty dollat B
or more may "' ne debtor by attachment, i ' ll d ont of Di trict
Court; wbeu debtor i non re::-icleut or th Territory; wh n debtor
has conceal d bim elf or ahscoudcd, or ab entld himself from bi
usual place of abode, so that ordinary µroc~ss of law can not be
served upon hi.m; when debtor is a bout to remove his property
out of th ·rerritory, or i fraudulently concealing or dii:.-po ing, cir
has concealed or disvo ed of the ame; when debt i ~ contracted
out of Territory and t·roperty 'Cretly moved into the Territory,
when defendant i a corporation whose office i out of Territory
and not having agent in Territory upon whom to erve proces ;
when d bt was fraudul ently contracted or credit obtaine d by false
pietense . Attachment will al o He upon action founded upon a
tort. Money or property due the defendant, and held by others,
may be collected by ga_n:~ishment. Attachment may issue upon a
Original from

UNIVERSITY OF WASHINGTON

G A D

O~I 'IERCI L L WS- EW YOR K.

claim or d m and not matur d. A caµias will i u on affidav it that
def"end ant i ~ about to ab cond. Plainti ff mu t l'urnish bond a in
~ase of attach m nt.
Court . 'Tenn. and Jnrisr lictinn . Suprem e onrt, which is
made up of th e j ndO'e of the five Distric t onrt , and
me t amrna lly in an1a :Be, in Jnly. Di t!'ict Courts holdwhich
term a y ar in all th counti R, and bn,ve unlimi ted co mmon two
and chance ry jurisdi ction . There are Probat e Courts with t hen 111w
power s, holdin g ~ix terms a year. Ju " tice , jurisdi ction, $100. ual
Execu tions may i ue at any time within five year from ren<lition of jndcrm eut, and to any connty in the T errito ry. From Di
trict Court are return able in ixty dayR from deliver y to 'heriff,Rnd from Ju tice'H ou r ts in thirty day fr om elate of
o
stay o1 execut ion except by appeal . A writ of error will i~tayue.
execution of a judgm nt in Distric t Con rt, H nch writ i ~ applie d for
vi'ithin thr e month s from date of renditi on of judgm
nnd bond
is given f r doubl e the amonn t of E<nch judgm ent. ent
The Suprem e
Court may a~s s ten p er t nt. damag es wh ere appeal i taken
withou t rea onable can . Real estate sold under execut ion, and
subjec t to li ens and incnm brance s, may be redeem ed within one year.
Exem ption . R eal estate up to $1,000, where debtor is bead 01
family . Bedste ads and all neeces sary to use of ame; on cook
stove
and µip ; one tove and pip e for warmi ng dwelli ng; and 'ixty days,
fuel. One cow, or honi-eh old furnitn re .$W in valne; two swine, or
pork thereof'. or, in lieu, househ old furnitu re $15 in value; six
beep or their wool, or tb cloth thereo f. or, in lieu thereof ,
honseh old fnrnitu r $20 in valu ; and sixty days' food for animal
s.
Religio ns and school and secula r books and family picture s. Provisions , value $50, and additio nal househ old fnrnitu r
$200.
One sewing machin e, one knittin g machin e, one gun or, value
pi tol, and
tool of the trade or occupa tion of the debtor , $!i0. The person al
ca.min g of the debtor . and of hi or her minor childre n, for three
month . A11 specim ens and cabine ts of natnra l hi tory.
ss
<lrnymen or wagon ers, one ho rse and wa2:on for a living,Busine
in
addition to forego ing. If debtor , bead of family , i in agricu lture, then
two horses , or one yoke of cattle, and one wacron and harnes s; a11d
if in practic e or medici ne, one horse. saddle , and bridle, books
and
in trum nt", $100 valne; all in additio n to exemp tion in previo
section ._ . Any re ' ident not ownin g home tead may elect real us
or
per onal proper ty, value $500, in lieu thereo f, in additio n to all the
previo usly stated exemp tions. Unmar ried wome n-wea ring appare
$50 in Yalne, one sewing machin e, one knittin g machin e, religio l
us
and other books, $50; and if teache r of music piano or organ.
Lawye r (being head of famil y) , books of bis profesRion, $500 .
Mntna l b nefi.t fnnds, pnid or iset ac:ide for d btor under
rules,
$5,000 , and all previo us exemp tion . Hom estead liahle for purchase monf'y or mortga ge thereo n. Proper ty of benevo lent ocieties, ancl proper ty for extingn ishin2: fire
lnter est. It is unlawf ul to charge , collect or receive a higher
rate of interes t than twelve per cent. per annnm . Where no
rate
is expres sed, the n the law allows six o ~r cent. per annnm .
11 open
runnin g accoun ts hear six per cent. from six mouth s after A
date
of deliver y oflast article . Jungm ents bear six: per cent. perthe
annum
when no other rate L.: expres sed; bn t the ame rate of
-t as
the obligat ion or contra ct sned on when so expres sed ininterei:
the
jnd~ment; but no judgm ent will bear more than twelye per cent. per
annum . U ury is punish able a~ a mi--de me'luo r, and the party
lso forfeit double the amonn t of interes t collect ed.
Judgm ents are a lien on real estate within the eounty
d te
of docket in!!, and may be extend ed to other counti es from
filing
trnn cript with the Clerk of the Probat e Court of uch by
county .
Jndg nH'nti- also becom e a l ie □ 011 liYe stock rangin g at large,
when
it wonld lw impo sible nnd imprac ticable for Sheriff to round
up,
npon his fil in,e with Clerk of P robate ourt in the counti es where
-such liYe tock i rangin g, a certifi ed copy of execut ion.
Lhnit ation s of ~nits. Ten year · advers e po se ion of lands
under color of title bar all action . Infant s,femm e, co,,v rt, per-:
ons
of uuson nd mind, impris on ed, or b eyond the limits of tbe United
St:i tes, are not within thi ~ statute . All other action
t be
brongh t as follow s: Upon judgm ents of any rourt in Newmu
Mexico
"vithin seYen years, and upon judgm ent"' of an:v court of record of
anr other T erritor y and State ancl of the Federa l Court
~'"'Yen year . On bonds, promis , ory notes, bills of exchanwithin
ge, or
other coutra ct in writing , nnd npon judgm ents of any court
not
of record. within six yen.rs : on open accoun ts and unwrit ten contract , injurie to proper ty. conver sion of per8on al proper ty, relief
on accoun t of fraud, within four years: agains t ureties
on
officia l bond , and agains t shcriff-l nnd public officer , within two
yf'nrs . Action of replev in mu st be brough t within one year after
right of action accrne d. Accou nts agains t tbe estntes of
ed
pcrRon rnu,ct be presen ted within one y ar from date of deceas
appoin tment of Execu tor or Admin i trator, nnd if rejecte d by Probat e
Conrt, mnst l)e nppeal ed to or ned on in Di, trict ourt within
. ix
month s ther after. No nppeal can be taken nor action comme nced
more tban eightee n month s nfrer such appoin tment.
l\fa,rr ied ,Yorn en retain their separa te proper ty owned
the
time of their marria ge, and also hold and enjoy prop rty at
of all
<lesrri ption acquir ed l y them during mania ge free from liabilit
y
of their lrn~ban ds; they can contra ct with each other as folly as if
r<:lation of hu band and wife did not e:s:Lt.
I\Iort ~ages . All deed , mortgageR, United tates patent , and
other writin gs affectinQ' the titl e to real Rtate, hall be record ed
in
the office of the probate clerk of the county or counti e in which
the real eRtate affecte d th reby is sitnate cl. Al] person al proper
excep t growi ng crop may be mortga ged. Chatte l mort!.!age-: or tya
trne copy theieo f mn t be record d, and must he renewe d ,vithin
thirty days of the expira tion of on e year by mortga gee's affirlavit
8howi ng intere t in mortga gee, and yearly therea fter.
mortga ge , or oth r in trumen ts of writin g having the effecthattelof a
mortga ge or a lien upon perRonnl proper tv, shall be acknow ledged
l)y the owner or mortga gor and record ed in the ame manne
a
convey nee affecti ng real estnt . Record er ball indor e on rthe
hadi: thereo f the time of receiYing it and when record d; the p:irty
in whose favor the mortga ge i ex cnted ball have the right
to
withdr aw the sam e. 'f'he record r Rhall keep a hook, proper lv
indexe d in which shall be n>corde d afficlavit of renewa l of chattel
mortga g : when ucb mort!la ge is acknow l c12'ed and record ed in
the manne r her in pr cribed , or when uch affidav it of renewa l is
rerord ed as her in require d, and it shall be shown to the Court by
0

623

proper evid nee that ench mortgage or affidav it is lo tor not in the
po" e .., ion of the party wishin g to u ~ lbe same, tbe record t hereof
or the tran, cri pt of nch record cert1 fled by tbe record er under the
eal of bi office may be receive d in eviden ce withou t furthe r proof.
Notes and Bill of Excha uge. In absenc e of any de ignute
place of payme nt tbe comm on law prevai ls. Anypr omisso r.ynoted,
or order for the payme nt of mon ey at "ome future t1me, which, b;r
it termR b ecom es clue and payabl e on ~unda y or on any legal
day, hall be const rn e d to fall clue and becom e parabl e on the holinext
bu. in 'S day therea fter; and for t he purpoe e of tl11. act, t h e fourth
day oi July. the twenty -fifth day of Decem ber (Chn trna ). the fir t
day of Januar y (New Year's Day), and all days design ate~ ?Y
procla mation of the Govern or as fa t day~ or thanks g1vrng~ublic
,
ball be deeme d legal holida y . Three days grace allowedays
d on
promi sory note .
Suits. All trau itory action mu t be brough t in t he county
where the plainti ff or defend ant resid _s, or ~v?ere the C?ntra
is to be perform ed. or t ., e cause of act10n or1gma t d, or m anct
county where defend ant may be found within the judicia l districyt
in which be bas his re idence . nits resulti ng from
e
to sheep herds on public domain , or injurin g or killing anydamag
person
in charge of the same, may be brough t in any county of the Judici
al
Distric t in which the can--e of action occurs .
uit ' to recove r real
estate must be brough t in the county where such real e tate or
an y portion thereo f is ituate. Action s agains t non-re sidents
or
transie nt per on may be brough t in any county .

NEW YOR I(.
BANK I G LAW.
(Revi ed by Ro ENDALE & HE

" B ERG,

Att orneys at Law, Albany .)

The con t1tutio n provid e (Articl e VIII.. ectiou 4), that
legislatur e ball have no power to pas auy act grantin g any the
special
charte r for bankm g purpos es: bnt corpor ation or associa tions
may be formed fo r such purpos e under gen ral laws. Chapter
6 9, Laws of 1 92, entitle d ·· An Act in rela tion to bankin g corpor
ations," provid es a com pl te plan for the organi zation of the banking depart ment, who e chief officer i ' denom ii\ated the "super intendent of the bankin g depart1 nent."' The act cout1i ne 2iti section s,
and covers the nbject matter of hank and bankin g in the
Under it bank may be organi zed with a capital of not les" tate.
than
$100,000, though in p)ace - of not more than ao.ooo inhabi tants
minim um capital of $50 00 l is allowe d. In additio n to the deposiat
reqni1e d to secure fb e circula ting note , a deposi t of $ 1.000, as a
pledge of good faith and guaran ty of compli ance with the
banking
law , is requir d to b made in the depart ment, nncl the uperin
tendent i, author ized to apply tbe ..,ame or any p 1rt thereo f in payme
nt
ot any penalt y inrurre d by or a'sessm ent impo ~ed on the bank or
banker makio g the deposi t.
Circul ation and the deposi t of securit y therefo r i provid ed for in
the act. The State constit ntion provid e that ._tockholders
in
banks i uing bank noteR shall be liable to the amoun t of their respectiv e shares for all debts and liabilit ies; and al o
bill
holdPr s, in caRe of in olvenc y, hall be entitle d to a pref that
reuce
payme nt oYer all other credi tors of the bank. Qnarte rly reportin
are require d to be made to the Superi ntende nt, as of a
designated by the Superi ntende nt. 'rhe uperin teuden t day
make an
annual report to the legi latu re. It is made the duty of the uperintend ent, in hi' discret ion, if be .,hall deem it proper , to person
ally
exami ne the books, etc. of any bank, or he may design ate some
compe tent person to make the examin ation. The examin er
authorize d to admin i ter oaths, and may ummo n person is and
examin e them on oath. "Willful false ' wearinO' is perjnry . The act
referre d to also provid e for the organi zation and manag ement ofSavin2 ' s Bank s. ~nperv i ion over these i given 1o the
bankin g depart ment. Each saving s bank is to be examin ed at State
once in every t,vo years by the depart ment. Interest-d rawin crleast
deposit are limit ed to , :-3,000 (excep ting as to deposi t arising :::ifrom
judicia l sales or trust fnnds) .
The in ve tment of the funds of avings bank is regula ted by
aid Act.
The follow ing are the provisi on of Sec. 116 of the Act relativ e
to inve tment$ . as amend ed by Chap. 440 of Laws of 1803:
SEc. 116. The trustee s of any winO' bank may invest t h e
money s depo ited therein and the i ncome deriYed therefr om
only as
follow s:
1. In the tockR or bonds . or interes t-beari ng notes or oblicrations
of the United State or those for which the faith of the ,. . , nited
State i pledge d to provid e for the payme nt of the interes t an d
princip al, in cludin g the bond of the Di t rict of Colum bia.
2. I~ the tock or bond ' or inteFes t-beari ng obliga tion of
this
Stat 1s ued pur.. , uant to the anthon ty of any law of this State.
3. In the stoc.ks or bond or intere t-b~ar}ng obligat ion~ of any
Stat~ of the U_111ted tate tbat has not, w1_thm ten years previo
to
makm g such mve tm_ent by S?-C~ corpor_at1on, defaul ted in the us
payment of any part of either prmc1pal or mtere t of any debt
ized by the 1egisla ture of any uch tate to be contra cted. author 4. In the stock or bond of any city, county , to,-vn or villa<Ye
school di 'trict bond', "and union free ~chool di trict bond i su0 ed
f<_)r chool purpos es:,, or in ~be intere t-beari ng obliga tion
any
city or county f th1 . tate. 1s -ued pnrsua nt to the author ity of
of any
law of the Stnte for the p aymen t of which tti faith and credit of
the munic ip ·tlity is n ing them are pledge d.
'5. In the .stocks or bonds of the follmYincr cities: Bo"ton
Wore Rter. 111 the State of 1\fas achu ett1-; "t. Louis iu tb.e ateand
of
Mi ouri; levelan d, in th
tate of Ohio; Detroi t 'in the . . tate of
1\lichig;an; Pro idenc in the tate of Rhode IRlaud and Jew
Haven in the tate of onne ticut. If at nv tim tbe ind btednef
:;
of any of aid cities, l .. it wat_er d ht 'or inking fnnd, sbltll
exeeed even per cent. ot 1t valuat1 0n for purpos e of ta. tion, it
b ond and stocks hall
to be an author ized inve t1

ih&f~~tt~Ffrorn

UNIVERSITY OF WASHINGTON

6.•A

BA KI G

D

OMMEROIAL LAW -

ment f or the money of aY1 r:.g Bank . but the uperintend ent of
the ban k ing departmen t may, in bi' discretion, require any aving Bank to ell or retain uch bond' or t cks of '"aid city as may
have been purcba ed prior to aid increase of debt.
6. In bond and mortga~e on unincumb ered real estate ituated
in this State, and worth at least twice the amount loaned tb.ereon.
Not more than ixty five per centum of the whole amount of deposit , hall be o loaned or invested. If tbe loan i on unimprove d
and unproduct ive real e tate, the amount loaned thereon shall not
be more than forty per centum of it actual value; and no inve tment in any bond and mortgage shall be made by any savings bank,
except upon the report of a committee of its tru tees charged with
the duty of iuve tigaLing the ame, and who shall certify to the value
of the premises mortgaged or to be mortgaged , according to their
be t judgment, and uch report hall be filed and preserved among
the records of the corooratio n.
7. In real property, subject to the provisions of Section 117 of this
act. (This ection limit the holding of real estate: 1. To a banking hou e, at a cost not over 50 per cent. of the surplus. 2. R eal
estate purchased at foreclosure of its mortgages .)
SEc. 118 'l'he trnstees of any such corporatio n shall, as soon as
practicable , invest the money deposited with them in the securities
named in the last preceding section of this act; but, for the purpose
of meeting current payments and expenses in excess of the receipts,
there may be kept an available fund of not exceeding ten per
centum ot" the whole amount of deposits with such corporatio n, on
hand, or deposit in any bank in this State, organized m:der any law
of this State, or of the United States, or with any trust company
incorporated by any law of this State, but the sum so deposited in
any one bank or trust company shall not exceed twenty-five per
cent. of the paid-up capital and surplus of such bank or trust company; or such available fund, or any part thereof, may be loaned
upon pledge of the securities, or any of them, named in subdivisio ns
one, two, three and four of the preceding section but one, but not
in excess of ninety per centum of the cash market value of such
securities so pledged; and, should any of the securities so held in
pledge depreciate in value, after making any loan thereon, the
trustees shall require the immediate payment of such loan, or of a
part thereof, or additional security therefor, so that the amount
loaned shall at no 1ime exceed ninety per centum of the market
value of the securities pledged for t b.e same.
Lawful Money Reserve . Banks of discount and deposit, having their principal places of business in the cities of New York or
Brooklyn, are required to have at all times on hand at least :fifteen
per cent. of their aggregate amoLmts of deposits, and all other
banks. ten per cent- This provision is less stringent than the
requireme nt of the National Banking Law, yet it 1s thought to be
fully sufficient to provide such a reserve as safe and conservati ve
banking seems 1o demand .
Loans. Loans to any person, company, corporatio n, or firm, or
upon paper upon which any such person, company, corporatio n, or
firm may be liable, are limited to one-fifth part of the capital stock
actually paid in, and surplus. But tbi re~triction shall not apply
to loans or dh,counts secured by collateral ecurity worth ten per
centum more than the amount or amounts loaned thereon, nor to
tile discount of bills of exchange drawn in good faith against actually existing value ; provic1ed, howeyer, that such loans or di co1mts
on such collateral shall not exceed one-half the actual paid-in capital tock and :--urplns of such corporatio n or bankers, or of cnmmercial or business paper actually owned by tlle person negotiatin g the
s:tme.
COMMER CIAL LAW.
Acknowl eclg-men ts must be made within the State, be fore a
Jt1dge of a court of record, Surrogate, N otary Public, Justice of
the Peace, layer, Recorder or Commissi oner of Deeds. (No
special form, separate and apart from her husband, etc., now
required for married women.) If made without the State, they
may be taken oy Judges of United States Courts, Jud~es of the
Supreme, Circuit or Superior Court of any other State or T erritory,
within the jurisdictio n of their court ; by the Mayor of any city,
or by a New York Commissio ner. When made by any person
residing out of the tate, and within any other State or Territory,
they may be taken before any officer of such State or Territory
anthorized by its laws to take acknowledgment"-. ,vhen acknowledged us labt above stated, there mu~t be obtained a certificate
' under the name and official seal of the Secretary of State of the
'tate in which such officer reside , or under the name and official
seal of the lerk, Regi tor, Recorder, or Prothonot ary of the
onnty iu which ench officer re ideB, or the Clerk of any Court
ther •o·r having a eal specifying that the officer was authorized , etc."
(Chap. 100, Laws of 1 91.)
Arrest. A debtor may be arrested in certain classes of civil
action among which i' an action to recover for fraud in contractiri.g th debt, or where the debtor ha disposed or i about to
di po ·e of hi property, with intent to defraud bis creditors_
tatutory provisions exist,
A signmen ts and Insolven cy.
in trust, for the
signments
a
general
of
making
the
regulating
b 'nefit or creditor~: Preference are allowed fo~ th~ wages or
snJarie · of employe , and to th amount of on e-third m value of
the as igncd e tate after dedncting uch wage or alarie and the
co t and ex pen e of executing the tru t. ( hapter 503, Laws or
18 7); al o regulating the filing or inventory, th!:' giving of bonds
and acconnting by tb ns ignc . The court ba power to remove
a igne, , and mt~y r qnir~ creditor _to pre n_t claim withi!)- a
period to be pr cnbed, notice whereof 1s to be given by advert1 em nt, etc. 'l'he dhide11cl-1 puicl by st t ·h an as ignce need only be
applied upo1, the dt•ht of tbe as-..ignor. and cloe · not dLcbnrge or
~atbfy the whole indcbt dne -1 of the assignor.
At.tat;hm nt: may i --ue in action for damag for breach of
contract I wrongfn l con ver ion of p r ·onal prop rty, or injury
th r to au d by n egligenc or fraud, or where defendant is
non-re id ent or ha left the 'tate, or conceal hims 1f to avoid
ervi ·e, or ha old, as ign d, ecr ted, or i about to ell, a ign,
or cr<'te hi property with intent to defraud creditors . Bonds
are to be given on the procurem ut of attachm nts.
Corpora tion . In , nrance, bankin g, railroad, tran portation,
and bu _in • s corporatio n can be fo rm ed under the Gen ral Lawi,
of the tat .
1

EW YORK.

The statute relating to the~e corp ration haYe been codified by
the tatutory Re,-is ion ommi .: ion and pa 'ed by t he Le 0 · l lat ur . .
of l l 90, 1291. and 1 9·) .
They are to be it cl a chapter of the ,eneral Law , " and are
muuberec'I a follow : Banking, chapter 37; insm ance. chapter
38; railroad , chapter 39; transporta tion, chapter 40: busine"-',
chapter 41.
All of aboYe, except thoRe formed under t he Bankincr Act. mn t
pay an incorµorat ion tax of one- ighth of oue per centum on their capital or upon auy nb equent increa,; .
Courts. Ternis ancl Jur ic diction. The upreme Court has
unlimited j urisdictiou . T he Con rt of Common Plea' and the
Superior Court of the City of New York, the City om t of Brooklyn, and the Superior Court of' Buffalo, have j uriscli ction to nn
unlimited amount w here the defendant re ide within the territorial jurisdictio n of the court, or is erved with the nmmons
therein, or where tbe can e of action aro e therein. There i a
County Court for each connty, havrng jurisdictio n to the amount
of $ 1,000, in actions where tbe defendant iR, or if there i' more than
one, where all of the defendant s are, re idents of the county. Justices ot t he Peace have jurisdictio n in act10ns on contract where
the snm claimed does not exceed $;.;l00, and Di 'trict ourts c,f
the City of New York, wh ere the sum does not exceed $::250, aml
the City Court of the Ui ty of Albany, where the sum does not
exceed $500.
Deeds . The le~islature has provided for short forms of deeds
and mortgages. A schedule of authorized forms i avpended to
the Act. (S ee Chap. 475, Laws of 1890.)
De positionM . The deposition of a party or of a person n ot n.
party wit hin this State, in an action brought or to be bronght, may
b e taken, where hewn that such testimony i ' nrnterial aml ne(.t: sary in the prosecutio n or defen se of t he action; or if the actiou .s
pending that the person to be examined i" about to clcp•1rt from tue
State, or t hat he is so sick or iufirm as to ntford reasonable ground
uch clepo ito believe that he will not be able to artend the trial.
tion, exc«:>pt t hat of a party taken at the instance of1 an adYerse
party, can only be used upon pro of of toe witne ' Se ' inability to
attend the trial.
Deposition s may be taken withou t the State for uee within the
State. Tbe Commissio n, in t he discretion of the Court, may direct
the examinati on upon oral que tio ns or written interrogato riet1.
Deposition s may also be taken within the State for use without
the State in an action or special proceeding pending in a. curt
without the State, either in the Ln ited ~tates or in a foreign conntry. A person who fails to respond to a suprena for uch examination is guilty of contempt ofconrt.
Executio ns will issue at any time within five year from date
of judgment; after five years, leave must be obtained from the
Court. Execution s may ies ue to two or more counties at tbe same
time. There are no stay laws, unle's an appeal i taken, when an
undertakin g securing the judgment can be given. On a judgment,
in any case, after execution is returned unsatisfied , defendant nnd
others may be examined as to the judgment debtor's property in
proceeding s supplemen tary to execution, and required to apply any
not exempt in payment. In certain cases a debtor may be imprisoned on execntion; proviRion is made for tbe giving ot bail to remain
within the jail limi ts . The debtor may be discharged upon making assignmen t of bis property (if debt is $500 or over, only after
three months' imprisonm ent.)
Exempti ons. Hom estead, $1,000 (to secure such exemption ,
deed, or notice designatin g that the property is to be used as a
homestead, must be recorded); neces'ary furnitur e, tools, team,
etc., $250 . Even in supplemen tary proceedingi;:1 the judgment
debtor cannot be ordered to apply upon the j ud~ment hi earnings for his personal services wirhin sixty clays preceding the
order, if such earnings are necessary for the support of a family
wholly or partly supported by hi~ labor.
l!...,alse P1.·etense s. A purc.:haFf of property by means of a fal e
pretense is not criminal , where the false pr tense relates to the
pur :baser's means or ability to p ay, unless the preten e is made in
writing, and signed by the party to be charged.
Interest. The legal rate of interest (which wa formerly,
until January 1, 188U, seven per cent.) is fixed at ' ix prr c~ut. All
notes, bond , contractfl, securities, etc., whereby a greater rate is
re 'e rved, or taken, or agreed for, are ab olntely void and the
lender can recover neither principal nor interc 't in such ca e ,
but corporatio ns can not pl ead mrnry a a cl.ekn <>. U nry i al o
punishabl e a a mi 'demeanor by fine 01· imprisonm ent, or both.
State bank bave been placed on the same footing a 1 ational
banks as regardi:, nsnry, and arc thereby exempt from the extreme
penalties mentio1wcl above. By chapter 2~7, Law of 1 2, on
demand loans of $5,000 and over, nrnd with warehouse receipts,
bil1s or lading, certiticate of tock, certificate s of depo 'it, bills
of exchange, bond , 0 1· other negotiable in t-trnmeut , pledged as
collateral, it is lawfnl to receive arnl. collect, a compensa tion for
making s uch advance,;, any um, to be agreed upon in writing b,
·
the parties to the transactio n.
e
offi
Clerk'
ounty
a
in
cl
't
k
Judgme nt . Judg ments do
th~
which
years,
n
t
fol'
erty
prop
real
u1)on
charg'
a
a,re
and
bind,
judgment debtor has or acqnirei:s within that time.
A j1ulgment i' prctmmed to be paid afLer th xpirat ion of twenty
yeart3 from the tim' when t ile party r overinf'" iL wa firt ,n titled
to a mandate to cnfor c, ii.
Confc -ion or an offer f judgment can be rnacl in an action.
Limitati ons of . nits. Contracts, expr ss or implied, except
tho e under eul, 1x year ; recovery of r al e tate upon judgment of court of record and caled in truments, twenty years.
Revivor: Part payment or new promise in writing.
M arrie<l Worn.en can tak , hold, mortgage and conv y real and
per onal property. A married woman m ay contract with her husband, or any other per on, to the same xtent, wich like effect, and
in he same form ai:; if unmarried , and she and her separate estate
shall be liable thereon, whether the contract relates to her separate e tate or otherwise, and in no ca e hall a charge upon her
separate e tate be neces ary. (Chap. 594, Laws of 1 92.) A married
woman can convey real e tate directly to her husband, and the husband can convey directly to his wife. Widows have right of dower
·
Original from
1

UNIVERSITY OF WASHINGTON

B NICING A D COMnIERCIAL LAWS- NORTH CAROL IN l .
Mortgag e must be executed and recorded amc as deeds.
Where c0ntainin~ a power of ale, may be foreclosed by an action
brought for the purpose, or withont interv ntion of conrt (by adverti cment). 'l,here is no r demption under a mortgage sale.
Chattel mortgage , exc pt where the po se sion of the property
mortgagPd pa' e to, and is retained by, the mortgagee , mu t be
filed 1orthwith, ot· are void a ngain t creditor and innocent purcha crs. Such morrga~e ceaHe to be_ valid in one year, except as
to the mortgageo r or his repr Rentattves, unless a copy thereof is
re-filed annually with a certith;ate of the mortcracree as to the
amount unpaid thereon, and this copy, mortgage'"" and certificate
con tiLutes a. renewal of the mortgage l'or one year.
Notes and Uills of Exchani; :e.
ommercial paper i not
defined by ~tatut.e. It ii:, not necessary that paper should be made
payal>le at a bank or any fixed place. Bill of exchange (foreicrn)
drafts, checks, and promissor y notes payable to ben,rer, the m ~kef
or his ord 'r, or th order of any third party, ar necrotiable . Bills
of exchange or drafts drawn payable n,t, sight at any place within
the 'tate, are marle dtrn at presentati on, without grace. Checks
bills of exchange 01· drafts, drawn on banks or bankers, and which
are payable ou a specified clay, or in anv number of days after the
date or ight the · eof, are payable without grace, and it is not
necessary to protest the same for non-accep tance. (The Courts
have cleciLled that grace ii:, not abolisbed on bills payable a specified number or months after date.) If not paid when due they may
he protc,ted, and the certificate of prote 'tis 7n·im,a facie evidence
of presentati on and non-paym ent. To charge indorser, notice of
non-µavm ent must at once be given to him. Chapter :.\89, Laws
of 1887, as to acceptanc e and payment of ch cks, and notei- proviJes:
§ 1. 1'be followiuo- days, and half days, namely: Tbe fir t day of
January, commonfy called New Year's Day; the twenty-sec onrl day of
February, known as Washi.ngt on's birthday; the 1hirtieth of May,
known as Decoratio n Day; the fourth day of July, culled Independence Day; tbe first Monday of September , to be known hereafter as
Labor uay; the twenty-fif th day of nece,nl>er, known as hrii:::tmas
Day: any creneral election day in th1s tate; every atnrday, from
twelve o'clock at noon until twelve o'clock a t midnight, which is
hereby designated a half-holid ay; an ·t any day nppointed or recommended by the Governor of this State or the President of the United
States as a day of thanksgivi ng, or fastmg and prayer or other
religions observanc e, shall, for nl l purposes whatever, as regards the
presenting for payment or acceptanc e and of the protesting and
giving notice of the di ' honor of bills of exchange, bank checks and
promissor y notes, made after the passage of this act, be treated and
considered aH the first day of the week commonly called Sunday, and
a~ public holidays or half-holida y; and all such billR, checks, and
uotes otherwise presentabl e for acceptance or pnyment on any of the
said days, shall be deemed to be pnyable and be presentabl e for
acceptanc e or payment on the secnlar or bnBinesF: day next succeeding such holiday; but in tt1e ca e of a half-holida y, F:hall be presentabl e
for acceptanc e or payment at or before twelve o'clock noon of that
day. Provided however, tnat for the purpose of protesting or
otherwise holding liable any party to any bill of exch-l.nge. check or
promissor y note, and which shall not have been paid before twelve
o'clock at noon on any Saturday, a demand of acceptanc e or payment thereof may be made and notice of prote tor dishonor thereof
may be given on the next succeeding secular or business day. And
provided further, that when any person shall recei Te for collect10n
any check, bill of exchange or promissor y note due and presentabl e
for acceptanc e or payment on any Saturday, s uch pf'•·son shall not
be deemed guilty of any ne~lect or omission of duty, nor incnr any
liability in not presenting for payment or ace pti:i,nce or collecting
such check, bill of exchange or promi sory note ..>n that day. And
provided further, that in construing this sec';;10n every Saturday
unless a whole holiday as aforesaid, shall ur'Jl twelve o'clock noon
be deemed a secular or business d1:1.y. An--1. the days and half days
ttfore aid shall be considered as the first rl.11y of the week, commonly
called Sunday and as public holidays or h_,:1,lt'-holidays, for all purposes
whatsoeve r as regards the tran 'acLrn ot business in the pnblic
office, of this State or counties of t.':is State. On all other days or
half days, exce ptin g Sundays, suc- 1J. offices shall be kept open for the
transactio n of business. § 2. Whenever the first day of January,
the twenty-se cond day of Febmary. the thirtieth day of 1\fay, the
fourth day of July, or the twenty-fift h day of Decrml)er sball fall
npon Sunday. the :Mon~ay next following sh_all be d~erned a public
holidiiy for all or any ot the purposes atorernicl; provided, however,
that in ~uch ea e all bills of exchan°·e, checks and promissor y notes
made after 1he passage of this act which ~vonld otherwise be presentable for acceptance or payment on the said Monday shall be deemed
to he presentabl e for ac_ceptunce or _payment on the secular or
business day next succeedLOg such holiday. Ch1iptn 461, Laws of
1887, provides as follows: . 1. All ?ills of ex:chang-e and promi::;sor y
notes made after the pnssage of thts act. except those payable at
stght or on demand, which shall be otherwi::;e payable on any half
noliday Saturday, shall be deemed to he and shall be payable on the
hex:t ncceeding E-ecnlar or hnsiness day. § 2. All bills of exchange
wb.ich by terms thereof shall be payable 011 the firt day of the Wl'ek
commonly called Snnday, shall be deemed to be nnd silall be pnyable
on the next ncceecling s cnlar or hnsines day. The Governor in
1-.1rning n proclamat ion for day of thank'givi nsr, fns:ing and
prayer, may. in hi discrctior:. , limit or restrict the effect and operation to any city or connty to be designated in the proclamat ion.
Law 1889, Chapter 19 .
Seal. Tb.e private 'Cal of a pcr.--on may conRist of a wafer, wax,
paper, or other Bimilnr adbe:-1ive snb-ltnnc '. or of the word" seal'' or
the letters"' L. S." (~cc. 13, Cha,p . {i,7, Ltiws 1 '9~.)
Snits in civil actions mnst he prosecnted in the ua.me of tbe real
party in intere~t, except that an exccntor, ndmiuiRtr atnr, trnstee of
an expre .., trnM, or pl'rRon "'pecially a 11 thori;,;ed hy ~tatn1e, may
i-ue in hi" own uame. A mnrricd woman can now Pne and be "ucd
in an action in tort withnu t joining her bn s hand. ( Chnp 51. L1tws
of 1 90. ) The practice is nuder a Code, kuowu n ' tile "Code of
Civil Procedure .''
Taxes. Lan els m·1y he E:olcl for tnxcR whe11 two y nrs delinquen t.
Publicatio n or 1:1ale i ' made lor t\velve weel-s in the county paper,
und t,\O yc•ars after nle ar allowed for reclrmptio u, tlw owner
having tbe rigbt to redeem l>y paying the pureba~e money and
10ter ~t at ten n r c nt. p 'l' annum. A mmtgng<>e (where tbe
i nstrnm nt iA clnly recorded) ha a similar right of redernpUo n
and upon filing a notice of hi mortgage, its date, recorcl, etc.,

40

GZ5

with the Comptro1l er, is e ntitled to notice before the tax title can
cut off' his mortgage. ~pecial provisions for sale~ of lands for
taxe exi t in several cities nnd counties. In cities, assessmen ts
for local improvem ents may be enforced, by sale of the houses
and lots a sessecl.
Wills. AH persons, ex ept idiotfl, person of unsound mind,
and infant ... , may d viB t h eir real esr ate bJ will. Males of eighteen
years and upward .. , and females of sixteen yenro nnd upwards may
bequeath pe1"onal estate.
Wi 11 mu t, be snb cribed by the testator in the presence of two
witness ', each of whom mn::;t 'ign rii' name nt the end of the will,
at toe request of the t stator. \\'lJO must acknowJ Lige and d eclare
the instrumen t to be his lm:,t will. A \\· ill of an unmarried woman
is reyokecl by snb eqnent nuuTiag
rlevi e or beqnest to a wit11cs whosr te timony i neceE ary to
e tabli::;h tbe will is void.
_'11 he_Codc C?,fCivil Prnc dnre regulates the practi~e of probating
wills m the :surrogate s Courts of these,· 'ml count1e:::; of the State.

1.~0RTH CAROL INA.
BANKING LAW.
(Revi eel by

IIAYWOOD

&

HAYWOOD ,

Attorneys at Law, Raleigh.)

Trustees. gr~Rr_dian~, et~. , are not relie, ed from liability by bank
charters perm1ttmg deposns. Laws of 18 i:i, Chapter 470.
All bauking institution s incorporat ed under the laws of the
State, may receive and pay out the lawful currency of this State or
of any ot the 8tates of tb.e United States, deal in exchange, crold and
silver coin, bullion. uncurrent paper, bonds and stocks ana public
or other secmit CA , manufactu red goods, cotton or othe{· prodnctA of
the c01~ntry; nHw pnrchase and hold real e tate for the transactio n
of busmess, or such as may be couveyed to secure debts to said
banks, or for other purposes, and may sell a nd convey the same·
and may also hold such personal property as may be conveyed t~
secure debts, or acquired for_ other purposes, and at pleasure sell or
exchange the same; may dtsconnt uotes, and other evidences of
debts, and lend money at the Jecral rate of interest of this State
which interest may be t.akeu in ad'vance at tile time of Joan in dis~
connt. It may receive on depo it moneys on terms to be acrreed on
between the oftl<..:ers and depositorA , not exceedina the rate6 allowed
by law .. 'phe bank ma.v also receiye on depo~it moneys held in trust
Ly admm1:strat_or, ex~cut?r, guardians and oth.e rs, may issue certiticates of d~~os1t beanng mterest not ~xee_eding the legal rates. Bills
notes, cert11Led checks, or other obligation s, when signed by the9
proper ufflc rs of the bank, shall be as binding as if under the seal
of the bank; tho e payable to order shall be a ·signable by indorsement, !1nd tho e payabl~ to bearer shall be ne_g otiable and payable
by delivery only. Savrngs banks may be organized under the
"General Corporntio n Law," and the investmen ts of eaid banks
are regulated_ by statute. Acts 1887, h. 41~. Deposits less than
$ 100 to credi~ of deceased ~er on !nay be paid to next of kin or
p~rson defraymg expen~e~ of 1~ t sickness and burial of deceased
without any legal adm101 tr llon. Deposits made by a married
w9man sh~all be paid only to her or on her order. Laws 18!l1, Cha ,_
ter 221. l he1:e are n_o laws r~Atricring the class of bonds Savings
hanks may mve t m. Bankrng corporatio ns can not be formrd
~oder the '' G~neral Corporatio n Law," but must apply to the legislature for then- charters.
All joint stock companies organized under the laws of the State
for the purpose of cond_uctin g a banking business, whether s tvings
or_ geueral, ~nd all pnv:ate banks and bankers that solicit or receive depo i~s, ~re re_qmred t.o. make to the State Treasurer statements of. the1r financial condtt10n at such times as National banks
are required to make statements to the Comptroll er of the Currency. Statement s are t? b · pnbli bed a in case of National
baJ?kS, and hall be made 111 accordanc e with the form to be prescribe~ by the State Treasure1; one copy of the stntement is to be
filed ~vttll ~he ~tat~ Treasurer and another 111 the oftice of the bank.,
ba1:,kmg m t1~11 t.10n, or banker. The St11te Treasurer is req mre~ to appornt S<?I?e on~ to make special examinati on, in person, rn to the condition ol such in~titution s annually, at a time
nnkn~wn to any person except tne State Treastuer and the
Exammer, and report same to him_ Expenses of examinati on
to. be borne by the b_ank exammed. The statements reqnired by
tbts act are to be cer tified under oath by the Pre ident or cashier
of the bank_. and atteste~ by at least three of the Direc1ors of said
bank, and, m_ ca. e_of private banks and banker , by the president,
manag-cr., or_ 1_nd1vtdual conductm ~ said bank, or tbe owner, ma _
1
ager. or 111d1v1du11l banker aforesaid. If, npon uch repor it sbal}
~Pl?enr to. tbe State Tre3:s~uer th 1t snch l>an k, etc , is inso!'vent, or
111 11nrned1~1,te danger ol 111solYenc~·. or is gnirty of fraud, fraudulent _pra.ct1c s or concealmentF:,_ n!d Tr asnrer shall institute procecdrng, for tbe pnr~ose of windrng np tbe affair of Raid bank,
etc., n_nd for t~ie appom_t~nent of a receh·er. If report show banlto be in p~·ecanon ~ c:oncht10n Treasurer must notifr bnnk to correct
e1:ror8_ or tr_rrgulHr1t1e8, et_c._, within !hirty. !-'ixty, o·r 11incty days, in
h1 d1:3eret10n, a?d on fa1lnre. to rnstitntc proceedilJO' 'as above
"t,1ted. ~_,nw~ . of 189:3. Chapter . f,~. Heavy peinlti~s are prncnherl. for ta1lnre of b!i-uk or banker to complv with the Act
nncl uot1re of the d~f:.ln]t 1~ to ~le pnhli ' bed by the State Treasnrer.
Any officer kuowrngly makmg fal s e E>t<, temeut is o-nilty of fel0
011y. Laws of 1801, Chapter 157).

COM:\IER IAL LAW.
A<'know ledgme!1 ts may be taken within the tatc by any Juel ere
or Cl~rk of a rourt of record, or any ,Jn . tice of 1 he Peace or Noi n~
\nhl1c. ln ntllC'.1' ~tntes hy any ( 'ommis ' ioner appointed by th~
t,-overnor o~ tins ~tate anrl _Cl('rks of courts of record in Stl('b
~tatcs, and Ll1 f~n:w:n c~nntt·ies b.v a 1\Iayor or other Cbief Mn,ristrate, of any .Mmu-:tcr,6RgWHtl Wo~omrne rcial Agent of tb
nited

UNIVERSITY OF WASHINGTON

626

BA KI G AND COMl\fEROIA.L LAW -

tate . Acknowledgmen t of deeds, to which Superior onrt
clerk" are partie or inte 'e-ted in, taken be rore any Judge of Superi r l ourt or Justice or Supreme Court.
Arre t and .Bail. Defendant may be arrested in a civil action
in the following ca e : 1. In an action arising on contract where
defendant i a non-re ident of the tate, or i about to remove
therefrom with intent to defraud hi creditor , and in an action for
the recovery of damage on a cau e of actfon not ari ing out of
contract, where the action is for injury to per on or character, or
for wrongfully taking, detaining or converting property, real or
personal. ~- In an action for a fine or penalty, or for money
received, or for property embezzled or fraudulently misapplied, by a public officer or by an attorney. olicitor or counselor, or by an officer or agent of a corporation or banking
a sociation, in the cour e of his employment as such, or by
any factor, agent, broker, or other person in a fiduciary capacity· or for any mi conduct or neglect in office, or in a professional employment. 3. In an action to recover the possession
of per anal property unjustly detained, where the prnperty, or any
part thereof, ha been concealed, removed or dieposed of. so that
it can not be found or taken by the heriff. and with tbe intent that
it hould not be so found or taken; or with the intent to deprive
the plaintiff of the benefit thereof. 4. When the defendant has
been guilty of a fraud in contracting the debt. or incurring the obligation fur which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which
the action is brought; or when the action i brought to recover
damage for fraud or deceit. 5. When the defendant has removed
or disposed of bis property, or is about to do so, _witu intent to
defraud his creditors. Provisions of the act do not apply to proceeding for contempt. and no female shall be arrested in any
action, except for willful injnry to person. character or property.
Defendant arrested is at any time, before judgment, en titled to a
jury trial on motion to vacate order of arrest. Laws of1889, Chap. 497.
Assignments and Insolvency. An insolvent debtor may be
discharged by filing petition and making assignment of property
to a trustee for benefit of all creditors. But his subEiequently
acquired property (not exempt) is liable for the E:atisfaction of his
debts. No creditor not havi , g received notice is bound by the discharge. Any creditor may sugirnst fraud, and on fraud or concealment being found by jury, jndgment will be that debtor be imprisoned until a full and fair disclornre of all his money, property
or effects be made. Voluntary assignments are only good against
creditors from registration. A debtor may in an assignment prefer
one creditor to another. Upon execution of voluntary deed of aseio-nment all debts of maker beconw due. Assignor must file verified
6cl1ednle of preferred debts rn office of Clerk of Court "·ithin five
day of rhe registration or snch deed of a ignment. Assignee must
file yerified inventory in office of the Clerk of the Conrt within ten
daYs after registration of deed of assignment. Additional ilwentory
m11 t b e filed within ten days of coming in of further property. Duty
of Olcrk to remove im,olYent assignee upon complaiut preferred by
creditor unless nch assignee give a good and snfficient bond. to be
approYed by said Ole1 k . In c·11-e assignee iR remoYed, person app ointed in hL place mm,t giYe a goud ,md sufficient bond, to be approYed bv aid Clerk. l;ulawful for assignee to sell an)' part of property described in deed of_ assignment w1thm ten_ days from regist~·ation ther ,• of, ex cept P"nshable property. Assignee muRt file with
Clerk of Court everv three montbs verified account of rectipts and
disbursement , and· final acconnt within twe1''e monthR, but time
may b e ext ended for good ?ans~ sbown .. Creditors mnFt file w_ith
Cl(•rk yerifie<1 Rt atement oi chum. Creditor knowrngly swearrng
fnlRely gnilty of misdemeanor: and trustee failing to !ile inyen~ory,
o r filing falsi> hlYentory, or sell mg any property not penshnble w1tbm
t en daYR, or failing to file q trnrterly or final accounts, or filing false
accomits, etc., gLLHty of misdemeanor. Laws of 1893, Chap. 453.
Attachment process may issue against the property of a nonresident debtor, or one who has departed from the State to defraud
his creditors or to avoid the service of a summons, or keeps himeeH concealed therein with like intent; or against a foreign corporation or if such person or corporation has removed, or is about to
remov~ any of bis or its property from this State with intent to
defraua' hiR or it-i creditors, or ha assigned, disposed of, or
secreted or is about to assign, dispose of, or secrete any of his or
its prop~rty with the like intent, whether such debtor i a resident
tate or not. The creditor procuring warrant of attachment
of thi
must within ten days, file affidavits in the Clerk's office, or before
a Justice of the Peace, if the warrant is taken out in his court,
stating tbe ground on which the warrant of attachment is ~sked.
The creditor i al~o required to give good bond and security for
costs and damages in case the proceeding by attachment is wrongful or oppre sive. Garnishee procei:;s is not known under the
statute. In action ari ing on contract for recovery of money only,
or in an action for the wrongful conversion of personal property,
attachment process may issue at the time or after the issuing of
ervice of summon mu t be made personally or
the summons.
commenced by publication within thirty days after obtaining
warrant of attachment. Within thirty days after obtaining such
warrant from a Ju tice of the Peace, plaintiff shall cau e publication ther of to be made for four succes ive weeks.
Courts. Terms and JU'risdiction. Superior Court, holding at
least two term a year in each county, has exclu ive original jurisdiction in all civil action involving over $~00. In some countie
eight terms a vear are held, but only one-half of them are appearance term . The 1 rk of th uperior Court i Judge of Probate.
Justic '. jl1ri diction, ·200.
Execution . from nperior ourt may isi;;ue immediately after
the term at whkh jl1dgment was rendered, and are returnable at
the next term. T ue a of cour at any time within three y ars
after r ndition of judgment; ~fter threey ar h~v~ lap 'ed, i ue
Court they
only on notice and l .ave ohtam d. From Ju t1ce
is ue at one ; returnable in ixty day . Stay of x cntion i
granted a follow : Under 25, on month; $25 to $50, thre
month ; $50 to 100, four month · above $100, i_x month . 'l1here
is no redemption on prop rty old on xecut10n or mortgage.
Notice of ale of r al e, tat" under xe ution to be po ted at four
public pla e , including Court Ilou e, and adverti ement to be made
rn county n w pap r.
Ex mpt ion. Everyhome .t ad, and dwellino- and building u ed
therewith, no exc ding in Yalu $1,000, to be lected by the owner

T

RTH

ARO LI A.

thereof ; or in lieu thereof, at the option of the own r, any lot in
any city, town or village, with the dwelling us d thereon, owned
and occupied by any re ident of the "'tate, and not exc eding the
va]ue of $1,000. P er onal property of the value of 500. Thi law
does not apply to debt contracted prior to Augu t 20, 1 6 , or to
taxes, payment of purcha e m oney, or labor rs' or rn chanic ' lien.
The exemprio11s allowed when debt , a contracted prior to Auo-u t
20, 1 6 , are tho e that were in force at the time the debt ,va contracted.
ix per cent. i the pre cribed u ual rate. Eight per
Interest.
cent. may be stipulated for in writing. Rate on j udim1ent and
open accounts, ix per cent., unle partie contract for higher rate
up to eight per cent., which they may do. Takino--knowin gly-a
greater rate of intere t, is forfeiture of the entire intere~t, and in
case a greater rate has been paid, the person who has paid it, or his
legal representative . may recover back. in an action in the nature
of an action of debt, twice the amount of Jntere t paid Interest,
1f not paid when due, bears simple iuterest-"starts on a career of
its own," i.e., when a time for payment of interest is pecified, as,
for instance, annually.
Judgments in the Superior Court are a lien from the time they
are docketed, on all real property of defendant within the county,
and can be transfe rred to other countie by filing transcript.
Judgments from Justices' Court are not a lic-n until levy i made.
Lien continues ten years from time of docketing. Ju tice ourt
and Supreme Court judgments may be made jndgment of
the Superior Court in all respects by dock tino- them in said
court. Judgments and decree" of Unit<·d tate Circuit and
District Court"' may be docketed in Superior Court for pnrpo e of
creating liens. Laws of 1889, Chapter 439.
Limitations of Suits. Actions on accounts and contract not
under seal must be commenced in three years, and on a note under
seal must be commenced within ten years, or the statute of limita
tion may be pleaded against recovery. In case~ of fraud or mistake cause of action does not accrue until the discovery by the
aggrieved party of the facts constituting such fraud or mi take.
Revivor: Part payment or new promise in writing. Personal
representative not compelled to plead the statute. Limitation
apply to an act1011 against an undisclosed partner only from time
when such partnership became known to the plamti:fI.
Married Women retain their real and personal property acquired before or after marriage, as their separate estate, not liable
for the debts or obligations of their huRbands. But no woman
under covertnre, unless she be a free trader, can make a binding
contract, except for her necessary personal expenses, or for the support of the family, or for such as may be necessary in order to pay
her debts existing before marriage, without the written con ent of
her husband. Widow'E dower is one-third in valne of all the lands
and real estate of which her husband was seized during her coverture. Statute also allows widmv a "year's allowance,, out of
the personal property of the husband .
Mortga~es must be registered ,vithin the county where the
land lies to be valid as against creditors or subsequent pnrchasers
for a valuable consideration. J\lort2:ages are forerlo ed by action,
except when a power of sale is giYen. Chattel mortgage and
lien bonds must be regiRtPred. Privy examination of wife required in chattel mortgages of furniture. All conditional sales of
personal property in which title is retained by bargainor mu t
be reduced to writing, and registered in same manner and with
same legal effect aR chattel mortgages. 'fhey are reQuired to be
regh•tered in the con 1ty \\'bere ,he pmcbaser rcsidee, or, ,vhen pnrcbac;er is a 11on-resident of the State, in the county where
the personal e,tate, o ome part of it, is s tnated. Laborer ' lien
on crops preferred to lien for Hdvnnccs. After December 1st,
1885. absolute deeds are only good against creditors or purchasif purchaser has noers from registration. Title doe not pa
tice of prior unregistered deed. Corporatione are empow red to
convey lands, etc., by deed signed by the President or pre!'dding
member or trustee,and attes ed by the Secn·tary of the company. In
all mortgage sales under power of eale in mortgage deed, notice of
sale must be posted at Court House door. Laws of 1 89, Chapter 70.
Notes and Bills of Ex<'hange. There is no statute defining
commercial paper. Bills of exchange and pro mi ory note are
what are known as" commercial paper." There i no fixed place
of payment, unles parties fix it. in the in trument itself. Ir this
ls not done by the parties, the old rnle prevails that the oebtor
must seek the creditor, though in practice tbe exact rever e obtains.
Grace (th rec clays) is allowed on all drafts except thos payabl
on demand. All bills and notes bear intere t from maturity, unle s
otherwise stipulated. An indorser of a note is deemed a surety,
and no demand on the maker i nece sary before comm ncing
suit again t surety or indorser; but thi do, not apply to bills of
exchange. Where a bill is drawn or indor ' ed in this State upon
any person or co rporation in any other o1 the United State or any
of the Territorie and is prate t d, it ' hall bear damao-es, viz.,
thr ee per cent. on the principal um. A bill or note may be protested by a Notary Public, Ju tice of the Peace or Cl rk of a court
of record. Bills of exchang and pro mi · ory notes - both thoRe
under eal and tho e not-ar neo-otiable; and all note and bonds
with more than one obligor are iy statute joint and everal. To
charge indor er of bill of xchange, notice of non-payment must
be given him. The 1st of January, 22d of February, 10th of May,
20Lb of May, 4th of July, the day appointed by the Gov rnor a.
Thanksgiving Day, and the 25th of D cemb r of each and every
year, are public holiday . Whenever snch holiday fall upon Sunday the Monday following shall be a public holiday. Paper falling due on Sunday or nny of the above holiday are due the day
befor . If a holiday fall on Sunday, p aper~ falling due on that
day are due on preceding atmday, and thoRe which would otherwiAe be due on Monday are payable on the Tne clay thereafter.
Wh never ither of thebe holidays fall on aturday, papers due
on unclay following are payable on the l\Ionday ucce ding, and
whenever either oi them hall fall on Monday, th paper which
hould otherwi e be payable on that day shall be payable on the
Tuesday succeeding.
Suits. Proce s of court must be served ten days before first day
of term. The action is commenced by issuing a ummon8.
Action before Ju tices are commenced by i suin~ summon to be
served on the defendant, which is made returnable at some time
Original from

UNIVERSITY OF WASHINGTON

B

KI G A D CO~IM ERCIA L LAW

nd place within the county to be d e ignnted by the J u tice.
ndgmen t can u ually be obtained in two days, sometim e within a
'Whom .
omplain t mu t be fi l din conrt of record within the
fir t three day of term, and an wer or lemurrer within the term t o
which the ummons is r turnable . Pleading before a Justice m ay
be either oral or written. Practice is under a Code k n own a the
" ,lde of Civil P r ocedure ."
Taxe ~. T axe~ are due on eptembe r 1st of each year, and con"'tit11t a lien from that date .
.,ale for delinque nt taxe are
made after notice giv n. D linquent may remain on th land
one year, and may r deem within that time by paying the amount
bid oy th purcha"e r and inter t thereon at the rate of twenty per
centum p er annum from the date of purchase . When land is sold
fo1 taxe Sheriff give pnrcha r a certificat e, which is as ignable,
ancl may b e foreclo~ d a a mortgag . provided forecloeu re proe ding are beo-nn within two yenrs. Purchase r can al o deman<l
a d 'ed within two year._ from ale day. Action to recover r al
estate bougl1t for ta:s:c ' nm t b brought in thrc:e year .

ORTH DAI{O TA.
B N"KIN"
vi ed by

T

LA"W.

W. NEWTON . Attorney at Law, Bismarc k.)
[ApproY ed )[Hrch 13, Hl93 to take effect Jnly 1, 1 93.J
As ociatio ns for carrying on the bu~ine..., of banking may be
formed by any number of U:-!.tnral person:-- not Je.;; than three, twotbird ' of whom sbnll be residents of the tate.
The persons uniting to form "nch an or0 rnizntion shall, under
their hand , make an orcraui ✓,ation cen ificnte,
pecifying :
1t:1t. The name a ~umed by " nch associati on \Yhich shall not be
t hat of nny otber bank in the ·::Hate.
id. The place where the busine5s of discount and depo it
is to be carried on.
3d. The amount of capitil tock and the amount into which it
bares are to b divided.
4th. The 1u1m ' aud place of residenc e of the sharehol der and
the numb r of hnrc h kl by each of th<'ID.
5t h. The period at which ' nch bauk shall commen ce and termina,te busine~ .
1'he organiza tion certificat e mu"t be acknowl edged aml rec"rde
in the office of the Register of Deed in the count~· where 1<uch bank
may be e ' tablished , and transmit ted to lhe Secretar y of tnte, who
must reco1 d and pres rve the ame.
Upon making and filino- said articl
and certificat e the as ociation shall become n body corporat aod have power:
1. To adopt and have a corporat e seal.
:3. To have succe"sio n Jor a period of twenty-f i,,e year
3. To make contra I s.
4. To u and be sued, complain and t1efen<.l in any court of law
-0r equity.
3. To ele t or appoint directors , two-third , of whom shall be
ret-idents of this 'tnllJ. By it , Bonl'C1. of Directors to appoint a pre:-ident and Yicc-pret-ident, rnember ' of said Board, a cashier and other
a si ' tants nnd define their dutie" .
G. To i,1e::;~ribe, by its Board of Director , by-law ' nncl regulnte
its bu ine · ~.
7. To exerci <.>, by i Board of Directors , all power necessar y
to carry on its bu inei:,s oi banking.
~ itch bankin,.; a .. socintion shall have power to pnrcba e hold,
and convey real c ink only for the follo\\'in g purposes :
1. ...:t1ch a, may be necessar y for its immedia te accomm odation,
n t cxceetlin_g :30 per cent. of it· capital.
:J. Such as ~h>lll be m rtgaged to it a security for debt previon-1, contract ed.
3. Snch as shall be conrnye d to it in d.l ti faction of debt predont-ly contracte d.
J.
uch as shall be pnrcha ' ed by it at 'ale under jndgmen t', dcCl'l' ,·S, or mortgag es held by it or to secure debt held by H, but such
real e tat shaD not be held longer than five year .
Capita l- Limit. Tmrn with 1,000 inbabitnu tR or Jes . notle._s
thnn $10.llOO: with over 1,000 nnd not over 1 500, 11ot le-..s than $1~,0UO: with oYer 1,500 nnd not over 2 1100, not le._ s than 20,000; " -ith
ovl'r 2 000 and nor over Z,50L) . not le f'- than $23.000; with ovf'r 2 500
and not o,·er 3.000, not less than "40,000: and in town' of 3 000, not
les1-1 than $50,000. At leaRt 50 per cent. of ca pit 11 must l)e paid in
before comm ·ucinn· busm ss: bnl:111ce must be pnid in 111 monthly installmen ts of 10 1wr ent., and all paym nt ' mL1 t be certifi d to
the ecretMy of 'tak nnd 'l' oath.
Populati on determin erl. by five time all Yotc cast for member of
Congres ~ at last geuernl elect ;on.
Organiza tion certificat e and authoriz ation of ecretary of 8tnte
must be publieh d at lea t four we k in pap r of the city or
conntY .
. _ 1a're may be sold for non-pay ment of instalme nts.
Shar
hall be $100 each. ' hall be deemed per'onal property ,
arnl may b tran . . f rable on ther::book as JH'" cribed by tbe by-laws.
'l'he nrticles of assoc at ion ma v provide for incrca
of capital.
No incren e hall be Yalid until all is paid in a b and certified
under oath to Seer tar)' of 'tu re. ,1nd hi approYnl ther of. By a
-vote of holller · of two-third::; of bar<> the capital may be r>duced,
but not below amount r quired by the Act. with the approYa l of
eC l'etarY of . ._ tatc. No r eduction shall affect liability of hareholders fur debts of a._ ocintion in nrred prior to sucll reduction .
Di solutio n. rrh Di ' trict
nrt may disso1Ye an a sociation
upon its yolnntar y applicati on in w rir.in!;, rc'olv d upon by twothird vote of nil members , and notice to the Public Examine r of
the " tate.
Dividend may be declared emi-ann ually, but one-t nth of net
profit mn!-<t b carri d lo th nrpln · fund until same amounts to
20 per c nt . of capital.
Q u alifi a tion of Dir ctor s . Every d irector mu t own at
lca:-;t ten 1Jarc in hi own li 0 h t m u t b sworn nnd oath filed with
Public Exarnin 'r.
(R

1EO.

0

ORTH DA KOT,.\.__

R e ports. A t lea t four repor t ball be made each year t o t he
P ublic Examine r and publishe d, and the Examine r is em powere~ to
call for special r ports at any tim . Penalty of !00 for not makrncr

i:,am .

Re e rve Fund. AE-F ociatio11 ball at all tim ·s have on band in
available fund an amonnt equ·1l to 20 per cent. of it deposit .
Wheneye r nch f und' o- t below 20 per cent. of depo i.ts, liabilltie~
must not be iucrea ' ecf Exnmine r nrny require res rY fund to b
1111de o-ood 1 ancl fnilnr so to do for thirtv day
ubject to a penalt of not le ' than 100 nor o"er 500, 'to be imposed by Public
Examine r.
R e ~p on ibility of Sh a,rehol< iers . Each sharehol der 'hall
be indi\'idu allv reepowib le, qually and ratably, fo!· a~l con tract ' and d ebt ' to the e:s.:tent of hi, stock and unpaid m ta)lmeuts.
ecu rity . No loans ._haJl be made on secnrit.y of hares of it"
own tock.
ociation c,m not pmcha._ e or bold such tock except to prevent lo., ' .
T otal L oan t o One Co n ce r n. Not to e:s.:ceed 15 per cent.
of capital paid in may be loaned to any one borrowe r, includin g tbe
indiYidu al member ' of a company or firm.
Violatio ns of the provision s of the ~.\.ct, and false entrie ,
and the r ceipt of deposits when in ol \'ent, are punished by fine and
impri ' 0lllllellt.
.
. .
.
E:s:i ' tmo- bank!- must complv ,nth the Act w1thm six
months
under pc~nlty of fine and inip1_-i ' onment of pe1:sons int.ere led.
Anv failnre to comply with rcqmrem ent~ of Public Ex:amrne r foe
per·iod of ninety days forfeit~ franchise of As._ociat ion.
Public Examine r i ex-officio "' uperinte ndent of Banks, and
must as often a one each yenr rnak a full examina tion and report
to the GoYcrno r and a cop,· oJ ' aid report sbnll be filed ,dth Secretary of tnte an~l opeu to c.lll persons doiug busine.::s w th association.
The Board of D ,rectors in Fehrnary and August of each year
m nst thoront:i"bly examine into all matter ' of tile b,rn~-:: and repo_rt
re~ulr!'l, and tbc report ~hall he pread on tbe record o1 the bank m
detail and examine d b,· the Public E:s.:amincr.
If the Bank is dcern·ed insolwn t the Examine r may npply to the
Di::;trict onrt f ,>l' the appointm ent of a recefrer.

O::\DIER CIAL LAW.
. Acknow leclt?n1 .ent · of deeds or oth r'r im,trume nts mav he made
at any plac within tllis Sta 1 e, beJore a ,Tnstice or lerJ- of the Supreme ourt. or before a Totnrv Public (wirhin an v count? wher •
his commis ion i recorded ) ,Yitbin the judicial di trict, county,
subdiYis ion, or city for " ·hich the office r wa elected or appointe d,
bef re a Judge or a Clerk of a court of recorrl. a l\fayor of a city,
a R gist er of Deeds, a Justice or the Peace. a United tate Circu it
Court Commi ~10ner, a County Clerk or a County ~\..nditor; without
the tate, but , ithiu the United State and within 1be juri,.dict ion
of the officer, b "fore a Jwtice, Judge. or
Jerk of any court of
record of the United
tate , or Clerk of any court of record
of any "' tate or Territory , a Totary Public, any other officer or
the State or Territory where made authoriz ed by its law to take
ackno"-l edgment s, a Commis sioner appointe< l for the pnrpo e by tbe
Governo r of this tnte: 1Yitbout the Unitl d States, btfore a Mini~ter, ommissi oner, or barge d'AtfoireR of the nited ...,rate resident and accredite d in the countl'y where made, a on ul, Vice-Con sul, or Consular Agent of th United Btate r ident " ·bere made, a
J-ndo-e of a court of record of the country " ·here rn nde, or a otary
Public of such countrv. \\hen any of the officers named arv
authorizP d to appoint a deputy. the ac·lmowl edgment may be takeu
by such deputy in the name of hi principal . An nckn o"·ledgm ent
must not be tak n unless th officer taking it kn nY or has ati factory evidence . on the oath or affirmati on of a credible " ·itne ", that
the person making such ackno\\'l edgrnent i the individu al who i~
describe d in and who executed tbe msrrnme nt, or if executed by a
corporat ion, that the per on makiu~ such aclrnowl edgmeni is the
presiden t or ecretary of 1rnch corporat ion. Instrume nts affecting
real proµerty , except jnclgmen ts afft cting the title to or po se ion
of, and letters patent from the United tat , and :final r eivers'
receipts from the nited tates land offices, mu t be acknowl edged .
A conveyan ce or other instrume nt executed by a married woman
has the ame effect as if she were unmarrie d , and may be acknowl eclged in the rnme manner.
Asshn11 nents fo r the benefit of creditor may be made byan insolvent debtor to one or more assignee in trn t toward the atisfartion of bi creditors , bnt subject to the p1·o v-i ion of the ci v-il cod e
relativ totrnst andtofr audulen ttran fe r ,and the lawrestr icting
assiirnrn ents by special partner hips. by corp n·ations, or b y other
specified cla ~ses of persons.
s ignm nts containi ng any trnst or
condition preferrin g one creditor OYer another not valid. A debtor
is in ol, eot when unable to pa_ his debts from hi own m eans
as they become due. Pr perty exempt from executio n and in urance
upon li fe o f assignor do not pu s by general as ignrnent u nless
specially m entioned .
Attach m ent may be ha<l of debtor's real or personal propert y.
debts, moneys. credits and bank note:- in actions on coutract for
the recoYery of money only, or for the wrongfu l conver ion of
personal p roperty-. against a cor p ration created by or under the
laws of anyothe rTerrito r.r, tate. governm ent orcountr y, oraoajns t
a debtor wbo is not a re ident of this State: or again ta debto~ w ho
h as ab conded or conceale d himst1lf; or wheueYe r anz p r ~on or
cor poration i about to remove nny of his or it propert).;- from tbiR
8tate; or ha~ a 'io-ned, disposed of, secreted , or i about to a1o1sign,
dispose of, or secrete any f bis or its property with intent to defraud creditors ; or the d bt was incurred for p1 operty obtained
u nder false p reten e . The warrant of attachme nt ma-v be i ued
at the time of i uing the ummon or at anv time ·1.ftern~ard. Plain tiff must m ak affidavit howing the necessa r fact"', and furnish
u ndertaki ng, for not les than ro nor mor than the amount
claimed in th e action , in the DLtri t Court; and in Justice'
ourt
for n ot le s than 50 n or over 300. N o proce s of garni hm n t,

eo nomine.

Cou1:ts. T here arc six Judicial D istrict . The D i t rict Cou rts
h ave exclusiv e j urisdicti on in equity and at comm on law auove $ 200
Original from
'

UNIVERSITY OF WASHINGTON

62

B. .

KI JG AND UOniME RCIAL LAWS- OHIO .

nncl where the title or boundary of real property i in question.
'l'wo terms ot Di trict Comt are held each year in all organized
ounties. Each organized county ha a onnty ourt, and the
County Court have xclu ive probate jurisdictio n. Justice ' '
juri .. (11ction L 200.
bsolutee:s::emption are family picture , pc:w in
Exempti ons.
hou e of wor:::;hip, a lot or lots in burial g rouud, family bible aml
school book' u.,ed by the family and other book used a a part of
tlie family library, and not excecdin!! $100 in value, all "' earing
apµnrel aud clothing of debtor and hi fam I ly, one year necessary
npply of provit:,ion, for debtor und f amily. provided or.growing , or
both and one years fuel, and the homestead not excteding $5,0Ull in
value, except again t mechanics ' or laborers' lien ' there.Ju, t.ie bts
eecnred by mortgage thereon, debts for purchase money thereo f,
and taxe thereon. Husband aud ,Yife mu t joiu in conveyauc e of
home tearl. of E-ither. In addition to said absolute exem:µtion s,
debtor may elect from all other of hi per onal property, good~,
chattels, merchandi se, money or other p ersonal property up to
$1,500 in ya! ue, to be ascertaine d by appraisal. No personal property,
except ab ol ute exemption s. i ex empt from execution for laboren,·
or wechanic 'wages (or physician ' bills after six months), or for
property obtained under false pretenses. No property is exempt
from execution for the pnrchase money thereof.
Executio ns. Judgment creditor may take out execution at any
time within live years after judgment or the return of previous execution. At least ten days' notice of sale of persona l property on
execution must be given, and at least thirty day s' of the sale of real
pro:µerty. Execution s must be returned within sixty days . There
are no stay law , but in case of an appeal, execution may be stayed
by a supersede as bond. R eal property sold on execution may be
redeemed within one year.
Husband and Wife. (See Ma?'?'i ed Women.)
interest. Usu1·y. The legal rate of interest is 7 per cent. per
annnm, unless a different rate, not exceeding 1;2 p er cent., is contracted for in writing, and contracts shall bear the same rate after
as before due, unle::,.s otherwi se expressed. It is usury to take
more than 12 per cent. per annum. A contract for usury forfeits
all interest. lt usnry bai:, been paid. twice the amount of interest
and usury may be recovered back by action commence d within two
year· .
Judgme nts of courts of record are a lien on all real estate of the
jud<rrnent debtor, except the homestead , for ten years from time sneh
judgment is docketed in the Clerk's oftiee of the connty where the
land is situated. By having execution issued every five years, judgments may be k eyL good for twenty years. In District Courts,
judgment by default may b e obtained after thirty days from service
of summons. In Justices' Courts, summons must be served not le8s
than three nor more than twelve days before day of hearing.
Limitati ons. Personal actions, two years; on contracts or obligations not nud er seal, six years; on sealed iustrum ent8, judgments ,
or decrees of any court, and in real actiou, t\11 enry years.
Married "\Vomen re tain their own real and personal property,
and may make contracts, sue and be i:,uect as if sole. Neither husband
nor wife has any interet-1t in the property of tbe other except under
the statute r elating to the homestead ; but neither can be excluded
fr om the other's dwelling. They may enter into any engageme nt or
transactio n with each other, subject to the geueral rnles which
control the actions of persons occupying confident1 ai relation-1
Dower and curtesy are aboli-bed. A. married
with each other.
w olllan retains the same le~al existence aud personalit y after as
b efore marriage, and shall receive the same protection of
all rights a a woman which ller husband does a~ a man. Neither
hus band nor wife, as such, is auswerabl e for the ac1 s of the other.
The earningt'l of the wife are not liable for the debts of the husband.
The separate property of the husband i8 not liable for wife's aebt8
contracted before marriage; nor separate µroperty of wife for husband's debts, but is liable for her own debts contracted before or
after marriage. A woman yos essing the qualificati ons of an
elector as to age, residence, and citizenship may be appointed a
notury public.
:Mortgag es of real property must be in wriling, and executed as
r equ ired in case of a grant of real properly. N either hu band nor
wife need join the other in mortgage except of homestead . If contai n ing power or sale, mortgage of real prop erty may be foreclosed
by advertisem ent, at lea t once a week for 8ix succes i ve weeks, in a
ne \r paper of the coun t y where the real property i situated. If no
power of sale in the mortgage, it mu t be foreclosed by acLion.
Mortgagor may r deem fr om foreclo _nre sale within o_ne year.
Poi-. e sion of real lH'!,pcrty 'Old upon foreclos ure n ot dell vered to
purcha er until end o f year of redemptio n, but purchaser may
collect rents from tcuan t in po~i-;c sion during year o f r edemption .
hattel mortgage arc \'Old a agarnst attaching credi tors and s ubsequent 1mrchaser and incumbrnn eert'l m good faith for value,
nnle , original or an autlwntica tcd copy b e 1ik<l iu oflicc of Rcgi ter
of D •ed~ within the county whu1e the property mortgaged , or any
part thl'rcof, iH at such tiwc itnatcd. If not rcne" ,ct witlJ.111 not
lei-:; than tt•n or mor · than thirty clay next preceding the expiration of thre, yl'ars by filing a copy of ~ncl1 rnortgag ', with 1a statement t>f the debt t-nbscribl'<l tmcl r--\\Ol'll to by m01L~a< 'c, his
as.:i!!:ne<•, hi· a~ent or attorney. chattel mortgage cea ··to be val id
as a!!;ai11st the original mortgaget~ a11cl mort~11gor, l.111:, heirs or
a~,i~n , a11cl :lf!1ti11:--t any atta<..:hing or execution creditor of
or mo11 gagee. A
morl ira iror. or u11.). 1)l'ior or t;U bt-:eq uent purcha--er
cl nuk!:5:5 tn l,<·11
.
.
I
i:-: "'
vo1
1.·
chuttul mo1t!!1l"e takl'u >y 111H11ra11cc: comp.lily
by :\ll in tr1t111t·11t clir-till<'t from :1ppl1catio11 . Murt.!H'..!;OI ' or hi~
"1'.tlll<'l' or a:-~i~r.t•C' rnuv red<>1·111 from t-U!l- of diatl<'I:-- 111Hler any
chattel 111ortgage t·Xl'Cllled aft •r 1111' lith day of. Iur<'h, Jb!I :, witliin
1in· day" aft1•r ale, vxc uding t-aid day. lJ_\' payi11g a111onnt for
ulll a11d co. t _o f ,n,e arnl 7 1wr <y11t. i11ter~st,
wliich propert: w
and tht• 'ltC'riff or Olhl·r lH:r:--011 mal,111g i-;ale mubt re1a111 po~st'bl:i!Oll
of~ id propPrty for ~tid ft,e da~. :rnd bv eotitled t > hi8 n·a~o11aule
•xpen::;e for Ctiri11g for :aml'.
~ ~egotiah l e lustr, meuts. 'l'h · ci\'il coclcdt>t--igna11•.: sixcl:u,~e
of negotiat)lc instrumen t ·: (1) Bills of ex<..:hallge; (~) p10111ii-;,ory
note ; (=1) bank not!' : (4) clw<..:kl:4: (.?) ho11~~; W) ceniiicatl'B of
depo--it. \\·hen 110 ti rue o f payment 1-., t--pec11i ·d, they are }J.t.) able
immecl1at ely. Wheu no placu of pa~me11t is ,:pecified, they a1epayable at the re illence or place of bu 'inc ·s, or where, er maker may

be found. Bill or note maturing on a holiday beco mes due on ne:s::t
bu in e~ day. 'rhe apparent maturity of a bill of ex ·hange payable
at 1ght or on d rnancl i , if it b ear intere._t, one year after its
date : if it doe not bear interest, ten day after it d ate, in
addition to ufticient time to forward it for acceptance . 'rhe
apparen t matnriry of a not e pnyable at 'igh t or 011 demand, if it
bear intere t, i' cne year alter it' date : if it doe not bear
interest, ix: months aft er it date. ~\. not pnya.hlc at a C1..'rtain tim e after sight or demand, such time is to he ndded to la t
named periods. 'l'h1 ee days o f grnce allowed on foreign or inla nd
bill of exchan ~e or draits pay,1ble at sight, or promissor y nott'B,
bill s of' exchange, and draft~ on tbe face of wbich time i., giyen or
specified, and on note._ due on dcmaud, nftC'r demn~d i' made.
Sundays and holiday, are e xclnded from computati on of days of
grace, and they expire on tbe uccecctin~ bnsincs clay. Aeccptnnc e
of a, bill must be made in writing by the drawe" or an accep ror for
l1onor. 11 0 hold ind orser, the instrumen t mu -:t be prc,_,ented at
matnrity and notice of dishonor dven. Holiday nrc Sunday._ , the
1st day of Jan nary, 22d day of Febrnary, 30th ct a~· of 1\fay, 4th day
of July, ~5th da)' of December. any gtncral election day, any l1ay
appomted by the Presid ent of the United Stat ·s or by the G<wcrnor
of the State for a public fat, tbank,.,o· iying, or holiday. If the 1 t
of January, 22d of Febrnary, 4th of July, or 25th of D ccemb 'r falls
011 Sunday, t be Monday followi1 ,g is a holiday.
Suits. Actions arc commence d bv service of a ummon"'.
Service may be made by 1ciwing copy \\'.i th defendant per onnlly, or
by delivering a copy to a member (o ver fo urt en year of age) of
defendant 's family at defendant.' dwelling-h ouse ; or, in cat:- e the
derendant i a, non-rel'-ident. by publicn11011 . 'r he practice in the
ivil Procedme ; in
District Courts is govern ed by 11 Cude of
Code.
Justices' Comts, by J us1ices'
Tax es become du e and payabl e on the fir t day of December i
each year. All unpaid pe1sonal property t a xe become d linqu cnt
March li::t of each year, at which tim e 5 per cent. pennlty i add ' d.
Taxes upon r eal property become delinquen t June 1 't of each year,
and 1 per eenr. a month p ena lty is ad led. and on th fir:::t day of
October an additional pe nalt y of .1 p er cent. accrue~. County Auditor
rnlls lands for unpaid taxe~ on tt1e tir t Tues day of December in eacb
year. Land sold for ta xes may be redeemed " ·ithin three year by
payment of all delinquen t taxes, costs, pennltie~, and intere t at
15 per cent. p er annum. Taxe s b ecome a lien a ' between grantor
and grantee on the first day of Decem bcr in the year levied. No
del'd of land can b e recorded without County Auditor's certificate
thereon th at all taxes are paid.

OHIO.
BANKING LA ,v.
(Revised by DAVIDSON & CONWAY, Attorn ey at Law, Cincinnati ..)
The question of State banking is of very little importanc e in this
State, altirnngh it occupies fifty-two pages of the .Revi~ed Statute "
pages 1833 to 1886. There are provisions for a,. State bank" and
.branches ," independe nt bankiug companie s" and'· free bankin g."
The Revised Statutes, Section :1817-18. provide: "Every bankmg
institution or corporatio n engaged in the busine s of banking. organized under the laws of this State, shall make a report to the
Auditor of the State, showing the condition at the opening of bu 'iness on the fir~t Monday of April and October of each year. The
or affirmation of the officers, and
report must be verified by oath
1
published in a. newspaper . 1 here i no examiner for the State
banks. Article XIII., Section 7, of the con titut10n, ays: " o
act of the General Assembly authorizin g associat10 ns with banking
powers shall take effect until it shall be submitted to the people at
the general election next succeeding the pafl age ther of, and be7
approved by a majority of all the electors voting at uch election. '
Savings and loan association s may invest their funds in t he purchase of stock , bonds, or other evidence or the indebtedn es of
the United States, stocks and bond of the 'tate of Ohio, bond. of
any municipal corporatio n of this tate, or 'Ch ool bond of any
municipal corporatio n, pecial chool di.., trict, or body politic in
this State, issued pursuant to law, to such au amount as may be
deemed proper; or in bond i sued b y ounty Commi ionC'r within
this State in pursuance of law; or the tock or bonds of any 'tate
of the United tates that hae for five yenr', imm •dinte ly pr ccdin~
such investmen t, paid the intcre t on it bonded debt in luwftu
money of the United tute ; bnt no nch a sociation shall nt any
tim e have an inve tment oJ a greater amount than on -tent h or its
paid-in capital in either of the last two named ec:uti ties; or m
bond or note t:iecured by mortgage , on uniucurnb er cl real 1:1tnte i-;itnate in the county where the a· ·ociation i. located, or in an adjointate, worth, exclusive of buildit1gs, at 1'll t
ing county in tlli
tbereou.
loaned
double the amonut

C'O)L\IEI WL\ L L .\. \V.
1 <·knowle clgments . A deed, mongnge, or lcui-e of nny estate or
interest in rl'nl prnpert). shall be signed by th, grantor, mortgngor ,
or le:,;1:,or, ai1<l :-;ueh :-;i_gniug t-Jhall be ackno\\ !edged l>y the grantor,
mortgagor , or lc"'15or in t1H~ pre cnce or t\\ o witnest:i ·s, who shall
atte t. the ·igniug and i:-ubt--cribc their names to the attestation , nud
such 'ig11ing t-ihall al 'O be ackuowleu ged by the grantor, mortgagor ,
or lp,;sor before a ,Judge ol a conrt of record in this 'tat', or a Clerk
thereof, a C:onuty Amlitor, County 'nrvcyor, otnry Public, l\layor,
or Justice of the Peace, who 1-,hnll certify the acknowled gment on the
ame t--heet on which the in trnmc11t i · written or llrintccl, and sub.
cribe lti name th ereto . Wh •n e recn tell, a ·kuowledg ed and
tate. in accordauc e with the lnwi:; of the place
proved ont of thi
wb ere ex cu tecl. they will be aH valid a if cxecntecl in this State.
A deed, mortgage, or le~ ' 9 of any e mte or intere ·t of a married per
Original from

UNIVERSITY OF WASHINGTON

629

KING AND COnI!tIE R I AL LA ,V -O HI O.
son _in r _al prop rty, shall b~ i_~;1ed , atte t d, acknowl clged and
c rti:fi. .d m th manner pre 'cnb ct m th pr ceding ..,ection.
'ignn1ents. Au in olv nt debtor may make an a" io-nment
• As
b
rn_
tru t f_o r the b_en ~t of er ditors: A ' ignee mu t, wi thin ten
day
a.it r dehv ry of tPsumm nt to him, produc the original tl'sianmcnt, r copy thereof, in the Probat' Conrt. file ·am e and enter
into a bond in such um and with uch snretie as court hall approve. N otic of app mtment for three succ ive week1s in
?ew ' pnper of~ nerul circ_nh~tion_, hnll be given after bond nt~r d
11;1to, and red1t~r shall w1thm ix month atter publication of notic' pre ent cltnm with affidavit that said claim i juc:t and lawful
th~ con i~eration thereof, and what, if any, set-offs or counterchu ms ~:x rt th rcto;. what collateral or personal security, if any,
the claimant hold for ame or that he ha no secnri ty whatever. Any snr ty or per._on jointly liable with a 'signor is allowed
to pre "lit and prove hi claim on which h i ' bound. nit mu t be
brought on rej ct cl claim within thirty dar. As ' ignment made
in contemplation of in ' olvency, wHh in tent, to prefer one or more
crerlitors, inure" to the benefit of all reclitor"' . As ignment made
witl1 int nt to hinder, delay or defraud creditors . hall be declared
voicl at the nit of any creditor, and uch a' ignm nt, after bavina
be~'n declared void, or u preferr~d as ' ignment, is cause for the ap~
pomtm nt of trust e. No a summent hall be constrned to inclurl property :s:empt, nnles the exemption i,; e:s:pressly waived.
Pr~ferr d claims ar : Ta:s:e of every de cription as13essed against
signor. and wages for all labor performed by any one in the
assignor's service within twelve months preceding the assignment
not exceeding $300.
,
Attachment in a civil action for the recovery of money may
be had wh 11 defendant is non resident or a foreign corporation, or
'has absconded or conrealed himself, or i about to remove, convert
or n sign, or has concealed his property with intent to defraud
creditor , or wh re the debt wa fraudnlently or criminally cont.racted. Plaintiff must give bond in double the amount a( issue,
xcept where d .fendant is a non-re~ident or a foreign corporation,
,vbeu a bond i not requfred. Defendant can be arrested in
a civil action on all except the first two gronndi:- given above.
Gnrnish ee proccs rnny he had in a id of attachment against
nuy debtor of' the defendant. A citizen of thiR St ate may be
enjoined from pro ecutin~ an atta hm nt in another State agninst
a citizen of thi
tate, to subject to the payment of bis claim
the earnings of the debtor, which by the laws of this tate are
exempt from being app1ied to the payment of such claim. Attachm.e,,t b~tore d ebt du . A creditor ma.v bring an uction on bis
claim b fore it is dne and have Rn attachment a...:aiust the property of hi ~ debtor: Fh,st. When a debtor hai:- sold, conveyed, or
otherwi -e diRpo eel of hiR property with the fraudul ent intent to
cheat or defraud his er 'ditori' or to hinder or delay them in the
collection of their debts; or. SPcond. I about to make such i-:a le,
conveyance or dispo ' ition of bis property with such frandnlent
intent; or, Third. I s about to r emove his property, or a material
pa!'t thereof. with the intent to cb ea and defraud bi s creditori:-. or
to hinder and dehw them in tbe coll ction of their dehts. The
plnintiff mnst give hond as in other ca.:es of attf1cbnwnt, and muRt
bv himself, hi ' n£·ent or nttornev, before the action ii:- hronght or
nttnchment issued, m ake an oath in \\Titina, ' bowing the natnre
and nmonnt of bis rlaim; that it is jnst; when it
·become dne,
and the c:s:i tence of any of the grounds above mentioned.
nn1s of Lading-. Execnting or d L'liYe ring. indorsing or a<s~i!!njng·. a fols' or fictitious hi 1l of lading, " ·it.Ii intent t o defraud . or
t1tt1.'lllptin _g ,o to do . ii:- J nnisbnble hy imprisonment in penitentiary
not more than fonr nor lcs, than one year.
Corporations. Btocl~boldcrs are.liable to rreLlitors . in addition
to their stock, in nn amount eqn·1l to the ~tock held by tht'm. :Xo
fon•i~!'ll stock corporation. otlll'r than a banl-ing or ini:-nranre corporation . 1<hn1l do bne-im'SS in this RtatC' " ·ithont htning procun'd
fro111 tlw ccrdary of R nfl> n, ccrtificnte that it has cornµlil'd \\'itll.
i1ll tht> reqnin' rn ent~ of lnw to allow it to do bui:-iu ee-s in th1e- Stnte,
am ong \\'hich are prodsioni:- 1or obtaining SL'nice on Bame \\·i1bin
thi-.: Rtate.
Court . T t rms and J11J"isd lction. Jn tice , Con rt ~ lrn e e:s:clnsiY<' rhriual jmisdiction of any snm not e:s:ceediJ1g $100. aud ro11cun nt j11risdiction ,vith the Court of omrnon Plea~ of any snm
fro111 100 to $300. If ithcr pl nintiff or defendant. in au a tion
b 1nrc a Jnstice of the Pence, claims more tban twenty dollars iu
hi~ bill of particular . tile case may be appealed to tb e Court of
Cnmmon I leas: hut 1{ neither p1uty denrn nd a greuter snm than
tw nt.r dollnrs, irnd the cn:-:e if': iriccl by a jnry, t her shall be 110
appeal. If th it,ms cowtitnting the canse of action or defense
be ~et out in the bill o f pnrticnlars. counter claim or set off, and is
verifi d by the uftida dt of the part~,, hii' agent or attorney, tbc
party " 0 doing slwll be entitled to judg ment " ·itbon t further proof
upon fnilnr of the other party to appenr. , uperior C'o11rti:- of
Cincimrnti and CleYelanrl haYe 1be , um g n ral jurisdiction
within those citie"' respectively. in actionR for cl bt, that is e:s:erciEwd b, the Conrts of Common Pkus. Common Pl as our ts have
origi11a.'1 jnrisdiction ,vb re the a.mount in conti·oyer:::)' exceeds .·100.
Th e Circuit Court and ' 11premc Conrt have no ori 0 foHl jnrLdiction of commercial hnportnnc . Probate onrts huve control of
th<' es tnt~ ~ of insoh·ent ~, decedent, . m inors, imh cciles, and
habitual drnnlrnrd '. and ba ve ex lusive origina l juri~dicrion in
the settlement of said estutes . There are fonr terms a year, but
the Court is nlwnys in se,-sion.
Deed . All deed ' and in trnruents of writi □ g for 1he conveyance
or incnmbrau , of any larnL ten ements or h reclitament , e:s::cept
mo• to-ages. shall be recorded in the office of th e Re order of the
county in " 'bich the premii:-es are ' ituated; Hnd, until 'O r corded
or filed for r ord, the snm" slrnll Ii deem cl fraudnJ nt, s far a
rela re to a nbs qn nt bona .fide purchaser. h~ffing at th time of
pnrcha 'e 110 knowl age f th e:s::istenc of uch form r deed or
instrumeu t.
Dflwe-r. A widow or wic1ower who ha ~ not relinquish ed or been
barred of the 11m1•, hnll he nd wed of an csta1 for life in onethi1 <l of all the rt>nl property of which the d eai'ed COlJsort wa
s izrd a' an c tat of inheritance nt an' tim e d11ri11g the marriage,
and in one-third of all the rt>al prope r ty of which the derensed COll·
so1 t. at d •a.s . b ld th<" f
, impl in reyersio11 or re mnind r: and
al n in one-third of all tb title or rnt re~t that th deceas d on ort
bad. at d
11 e. in any I cal prop r ty held by articl . bond or other
evidence of claim; and the widow or widower m ay r main in the

'"ill

man ion house of the decea ed consort, free of charge, for one year,
if dowrr is not sooner a~ i.,,ned; but dower shall not be a igned to
any widow or \\'idower in any real property of " ·hi h the d cea ed
con ort. at decea 'e, held the fee simpl in reversion or remainder,
un til tbe termination of the prior estate .
Executions i ue from the onrt of Common Plea to any
county. E -ecution a.,,ainst th per~on will c.1 nly ii' ue when the
Judge of one of the u perior Courts i ' sa ti~fie d of the exi~tence of
cau e- nch as onceulment of propert)' by the d btor-or wh re
debtor was arre"' red before j ud 0 ·ment nnrl not dischnrged under the
law. Land 1eYied on nm ~t be appraised by three disinterested freeholder , and can not b e sold for less than two-thirds of such appraisement. Executio11s are "taycd before Jnstices. by entering
into a bond to adwrse party wi thi n t n ctar after r t-' ndition of
judgment . on jnd!!ments for $5 and under, sixty days: $5 and
under $20, nillety days: $:...0 and under :B:,0. 150 days· $50 and upward, 240 days.
To stay 011 judo-meut in favor of any person 1or
wages du for mmrnal labor performed.
Exeu1ptious. EYery person who ba.., a family, and every widow,
may hold the follo,Yino· property exempt from ex t cution, attachment or "ale for any debt, damages, fin e or amercement: Fi1 t.
'l he wearing apparel of such per on or family, beds, bedsteads
and bedding necessary for the same, one cook.mg stove and pipe,
one stove and pipe u cd for warming the dwelling. and fue l for
si:s:ty clays, actually provided, and d igned for the u e of uch perecond. One cow or if the ct btor own none,
son or family.
hou:-:eholcl furniture to be sele ted by nch debtor not exceeding
$35 in value; t wo "'wine or the pork therefrom, or if the debtor
owns no swi11e, hou ehoJd furni ture to be selected by such debtor
not exceeding $15 in value: si:s:: sheep, their wool and the cloth
or other artic1e"' manufnctmed therefrom, or in lieu thereof household furniture. to be selected by the debtor. not exceeding 15,
and food for snch animals for si:s:ty days . Tlli1 d. Bibl es. hymn
books . p aim b ok . testament a nd school books used in the
family, and all family picture$. Fourth. Pro,i ion nctually rovided and designed for the n e of such per~on or family not e:s:ceeding $50 in Yalue, and other articles of hon ehold or kitchen
furn iture necessary for such person or family, not exceeding 50 in
Yalue. F ifth. One ewing machine. one knitting machine, and
all the tool' and implements of the debtor nect-8.:~ary for carrying
on bis or lier trade or bu,;ines...,, "·hether 111echnnic·1l or agricultlual,
not exceeding ~100 in Ya1ue. ' i.rth. The personal earnings of the
debtor and of his or her minor cll.11d or children for three month~,
when it j ~ made to appear by a:ffidaYit that such earning are
necessary for such p rsou or family.
l.,'enth
All arti lE's,
specimens and cabinet' of natural hi~tory or scienc , exc pt such
as are intended for how or e:s:hibition for money or pecuniary
gain. Elglith. EY ry drayman who i the head of a family, in
addition to the abo,·e exemptions, hall hold one horse, harnes
and dray ext'mpt from execution. Evers agriculturist who is
the head of a family in addition to the exemptions specified in
clauses one t
eYen iuclnsiYe, shall hold ex mpt from execution
one horse or one yoke of cattle with the necessary gearing for the
same, one wa,:>· 11: and eyery practitioner of medicine. the head
of a family, in addition to the exemption "'pecified in clauses
one to seyen inclusi rn, shall hold e:-empt one horse, one saddle
and bridle . and also books, medicines and instruments pertaininoto his profession, not exceeding $1 0 in value K-;·ery unmarried
woman muy hold the follmYing property "xernpt froni xecutiou,
attachment or sale: II'ir~·t. ,Yearing apparel not exceeding $100.
Second. One sewing machine. Third. One knitting machine.
Fou1·th. A Bible, hymn book, p aim book and any other book
not exceeding in value $25. Any b neticiary fund, not exceedino$5,000, set apart, appropriated or paid by any benevolent assocLi
tiou or society according to its rules and regulation to the family
of any decec1 "'ed member, or to anv member of such familv, shall
not. be liable to be taken b_y any· proces or proceedingi:-. ·1egal or
eqmtable, to pay any deb of ,;uch deceased member. The reo·alia
in~iania of office. journals of proceedings. account books ana. the
private work b longing to any bene,olent ociety in thi State
s!iall be exempt. etc. All property used by any municipal rorpora~
tion or fire company for the purpose of extinguL,hing fire shall be
e:s:empt, but the ow11er may crea1 li ns thereon by mortgage, etc.
Husband and ·wife li'i'in 6 together, a ,,-idmYer lidna with an unmarried daughter or minor son, "Yery ·w idow and verv tmmarried
female _ha,·ing_in o·ood ~aith the care. maintenance and custody of
an:v mmor h1ld or ch1ldrE'n of a deceased relatiYe residents of
Ohio and not the o,Yner f a homestead may, in lieu ther of
hold ex empt from levy a11d sale r al or personal propert to be
selected by such _pers,on, hi:; ::tf!ent or attorney, at any time before
ale, not e:s:ceedmg fiy hundred dollars (~ 501l) in value, in addition
to the amo~mt of clrntt~l prop~rty _otherwise by hrn· e:s: m pted.
No e::s:empt1011 runs agt mst claim for labor amountina to les~
than $100.
~
Homestead. Tiusband and ,Yife livina toaeth r a widow or •1
widower liYing with an unmarried daughter or nn~rnrricd mino~son, may hold exempt_ fro~1 sale _on judgment or order a family
homestead not e:s:ceedrng 1 000 m Yalue: the wife mav make
~emand if the husband refuse, bnt neither can make such demand
1f the other bas a homestead. \fhere the homestead is s1ild for the
payment of lit,ns thereon, after paym nt of such li ns the owner
may claim $500 ont of the balance of the proceed of ~ale if any
in lieu of a home tead.
·
'
0

. Iu~~rest. '.fhe legal rat i si:s: per c nt. Partie ~ may contract
wnt_mg f r 1°·ht per c nt. No penalty iR attached for the violation of the law. If a contract is made for a hi_h r rate than eio-bt
6
~er. en t .. the on~rac_t a' to int res~ is YO id, and the recover is
limited to the pnn 1pal nm and s1:s: per c nt. Intere ~t i , computed npon judcrmems and d c1ee at the rat
pe ified in the
111i:-tn11ne~1t upon which aict judgment or de ree is rendered.
lntere ~t 1s not recoverable on open running account", when there
are no ci_rcnmstances f1 om " ·hich au agreen1ent to allow intere ~t
can be rnferred, aud there ha b een no Y :s:ation, delav f pavm nt. Open a ount drA.w intere t aft r ~tatt'ment is made a1i.d
a connt I nd r d. Interest from and Hfter maturit may be
allowed on item ' of ,, a gee or salary payable monthly.
1~

Juoo-me nts ~ir a 1i _u on r al pr pert. f d f ndant within the
cm~nt , ,_vhi_ h lien out1_n~1 for fiv year'. H exec11tion b" not
1 vied w1thm one yl:'aCvrifgmal fut:ilenrendition of the judgment, aid

UNIVERSITY OF WASHINGTON

630

BA KI G A D

O}I 1ERCIAL LA ·y { -OKLAHO~ IA.

judgment hall not operate to the prejudice of any other bona
fide judgment creditor.
Lien . . Laborer. and employe of any per on..,, a.., ociation of
pen,on . ~r corporat10n whether uch employment be at agriculture, mrnmg manufacture, or other manual labor have a lien
uch
upon_ the real property of their employers for their 'wages.
hen _1 decl~red to be up rior to tbe following lien Laken or att~chrng durrng the exh-tence of uch unpaid labor claims, to-wit:
hen ol a~ta hmtnt, lic_n of mortga 0 ·e given or taken at a time
of a_ctual m.,olvency ol the d .btor or with a Yiew of preferring
creditor~, or to ecnre a pre-exi"'ting debt, and uperior to all claims
of home .. tead or ot_her exemptions, except exemptions allowed
to _the head of a 1am1ly ancl to a w idow. '1.'he lien is deemed
waived by ~he la_bore1 or employe a to any portion of such labor,
unle withm thirty day from the expiration of three months
from the performance of suLh portion, he files wi tb tbe recoi der
of the cou_nty where t~e l~bor was performed, an itemized statement, verified by affida-.,,1t, of tbe amount, kind and value of
the labor performed within aid period, with all credits and offsets,
and tbe amount then clue him therefor \Yhich verified statement
when so fil~d and recorded in a booi{ kept for that purpose:
beco_mes a ll~n _upon the real property or the employer "ithout any
s~ec1:fic des~r1pt1011 thereof, for the period of one year from and
after the filrng thereof; and, if action be brouaht to enforce the lien
within that time, it continue in force until finally adjudicated.
. Li:mita~ions of Sui~s. On contracts not m writing, express or
implied, 1x ye~rs; specialty or any agreement in writing, fifteen
years; real act10ns, twt>nty-one years. An action may be taken
~mt of_ t?,e statute by pa1 t payment, acknowledgment , or promise

T axes are du~ on .December 20 of each year, bnt the partycharged may at b1 opt10n pay one-half then and the remainder o
or before June 20 following. LandR delinquent for three mi-annna
in tallment are sold by the County Trea" urer. Owner can red cm
within two year' by paying amount for which the land wa sold
~!l ubsequ nt_ ta~e and intere t, and a penalty of fl.ft en per cent:
1f redeemed wlthm one year, and twent:v-five per cent. if within tw
years. Land offered for ale by the County '1.'reasnrer and not ~01
for want of b!dder , become forfeit~d to the ' tate, and are again
offered once m each two years until old for the delinquent nnd
accrued taxes. The owner of forf ciU:id land may redeem the
same at any time within six month by d positing with the Treasurer the amount of sa1e and cost , together with fifty per cent.
penalty thereon.
Time. Central Standard Tiu e i ' the ll'gal time tbrouahon.
0
the State.
_Wills. Ever_y la ~ _will and _t<>._ tnment (except nnnc11path·e
will s) sha l_l be lil wntrng, and signed at t be end thereof by tht'
party rnak111g the ame, or by some other person in his prCbl'llCe nnd
by his expn•ss direction. and shall be atte::-tl'U and subscribed in th,
presence of nch party by two or more competent witnet:-ses ,, ho
aw the testato r subscrit)' or hl'lll'd him ncknowkdo-l' tlil' same.
A verbal will m ade in tbe last sickness ::,hall lw valid in re1:-pcct t<>
per ·onal C'tate if reduced to writing and snbscrilwd by two di interested competent wi tnesse within ten clayt- after tb·e speaking
of t h e testam entary words, and i · properly probated within ,Lmontb from death of t he testator.

in W'nting.

l\Iarried '\Vomen. A married ,voman shall sue and be sued as
if she were unrnarried,-u.nd her husband shall be joined with her
only when the canl:'e of action 1s in favor of er against both her
and her hu band. vVhen a married ·woman sues or is sued like
proceeding' shall be bad and judgment rendered and enforced as
t?,ougl~ she were unmft.rried, and her property and estate shall be
liable 1or any Jndgment against hn, but she shall be entitled to the
~ene:fit of all exemption~ to heads of families. Auy estate or
11:1terest., lega_l or equitable, in real or personal property, including
ngbts m act10u, bdo~ging to a woman at her marriage, or which
~ay ~ome to her dunng coverture, by conveyance, gift, devise or
mhentance, or by purc.;base with her separate money or means,
O! du~ as the wages of her personal labor, or growing out of any
y10lat10n _of her personal rights, shall, together with the rents,
mcomes, issues and profits thereof, be and remain her separate
property. The separate property of the wife shall be under her
sole control, and shall not be taken by any process of law for the
debt~ of the husband, or be in any manner conveyed or incumbered
by him, and she may, m her. own name, during coverture, contract to the same extent and m the same manner as if she were
~nma_rried, a_nd she may convey the imme without her husband joinmg with p.e~ m the deed; but if the husband does not juin, he is not
barred of his do-wer. Neither husband nor wife, as such is answer'
able for the acts of the other.
mortgage
first
the
and
lUortga ges must be executed as deeds,
re.corded has the preference. Are foreclosed by suit in the Court
of Common Pleas, and there is no redemption of lands sold under
foreclo-,ure after confirmation of sale by the Court. Chattel mortgages, o_r a true copy thereof, must be depoflited with the Clerk of the
township where the mortgagor resides at the time of the execution
th_ereof, if a resident of the State, a11d if not such resident, then
b e township in which the property so mortgaged
~vlt~ the Clerk of t_
1s situated at the time of the execution of the instrument· but when
the mortgagor is a resident of a township in which the office of
County B.e<.:order is kept, or when be is a non-resident of the State
and th~ proper~y is within 1mch township, the mortgage shall be
fil~d with t~e County Re~order. Every mortgage so filed shall be
vo1~l, as agamst the creditors of the person making the same, or
a~am t _sub_sequeut purchasers or mortgagees in good faith, after
th~ e:s:p1rat1on of one year from the filing thereof, unless, within
tl11rty days next preceding the expiration of the said term of one
~ear, a tr_u~ ~opy of B_aid mortg~gc, together with a tatement verified, ~xh1b1tmg \be rn_tere 't _of the mortgagee in the property at
the time last atore:-a1d, claimed by virtne of such mortgage, is
again filed in the office where the original was filed.
Notes ancl Bills of 1'.:::xchange. All bonds, notes and bills
payable at a day ce~·tain a1:1er elate, or after sight, are entitled to
thr ·e clays of grace 111 the t1me of payment. v'then the third day ot
grace i tlle fin,t clay of tlie week, the demand shall be made on the
next preceding bu 'inet-iS day. The 1st day of January, the 30th day
of ,.Jay, the 4th day of July, the 25th of December, 22d of February,
the til. t :\Ionclay iu 'eptember, and any clay appointed or recommended by the Governor of Ohio, or the !'re ident of the United
'tate , a a day of fa~t or thank giving, i treated and consrnered
a the :firi--t day of the week. ';Vben the 1st day of January, 4th
day of July, the 25th clay of December the : 0th day of l\1r1y or
th<' ;.:2<1. day 0f February, hall be the.fir t day of the week, 'the
fiUCC •eclmg ::'\1onday 11-1 al 'O treated and con idered as the fir t
day of th_ week .. When made payable to order or bearer, they
ure uegutrnhl by rndor ement ther on and ve t the title thereof
in i11dorsee. rrh y n ·ed not be payable at a bank, or any particular
place, to hr negotiable.
Partner hips. Limited partner hips for the tran action of
m~rca11tile, mechanical, mannfacturing or mining bn ' ine ' within
t h1. 't1-1te. muy b • formed by two or more per ·ons in accordance
with ~tatutl', iu which one or more partners are generall y liable, and
th p •ciul partner or part uer are liabl · only for the amount of capital cuutrihut ·<l 'I lie 1-'tyle is the name of tlie gelleral ptirtners,
Limited partnership asi-ociations may be
'o.'
followed by ''
formed, in uccorda11ce with the tatnt ', by nny number of per.ons,
not Jes than tin e nor more than twenty five, for ·oudu ting any
lav'l'fnl huEsine s, eX('<'lH hmiking and d ,i;tJing iu real e tute, by sub·cribrn~ a11d cont1ibu1iJ1g rapiUd thereto. Any rnemh r tiler oi
shall be 1iahle only to th· exkut of lJis raµital i--tock th r in for the
deht of Hlth a-- ·ocia t ion. 'l'lle name of 1-uch a . ociation hall end
with the word "limited."
Suits. '1.'here i:-; bnt on' form of action, known a a civil action,
which mu~t h' µro,- ·cut ·<l in the rnune of tlw real party in inter t,
except a. to ad min i--1 rat or ·, tru tc ~ , etc. In certain case ervice
may be made by publication.

OKLAHOlVIA TEBRIT011 Y.
BANKING LAW.
(Revised by

BIERER

& COTTER.AL, Attorney ~ at Law, Guthrie.)

By ~ct of _Congr~ss, Xational banks may be incorporated an
orgamzed as m the States, except tbat only three montlls' residenc
of director is required.
Legis1atiYe enactment proYidcs that it shall be unlawful for 1rnnk
i:resiclent, cashier, other officer, or clerk, to rccei\·e, or permit, or
assent to receptio_n of money deposit, or thing or value; or to crent<.,
or assent to creation, of any <kbt by bHnk after he shall ba, e knowledge of in~olvency. lt is mac.le the lnty of each of euch pcrsom; to
know the banks condition. For ,iolntion of snch law all such persons are to be held individually liable, and nny b~ ' ned cithe1
jointly or seYera1ly. Such violation i:::; al o lnrcen5·, and 1 puui~ha::ilc as for the same.
COMl\IERCIAL LAW.
Acknowledgm ents. Conveyance of renl estate or intere t
therein, for the term of more thfln one year, ~lrnll be i1n-alid, unll'
d eclared in \\Titi11g. Within tile 'l'e, ritory instrnmeut · may be
of
ncknowlcdgcd before a Judge or Clc1k of the Supreme Court
the District Courts, a Conllty or Probate Judge, County Clerk
Notary Public, Justice of the Peace, nLt., or of a, city, Re'u-btt r of
Deeds, United States Circuit or District Court Comn1il:'sio71er and
County Auditor. Outside of the 'l'enitory, and within the uiiited
States, before a Justice, Judge. or Clerk (if any court f HecOJ d of
the United Statc,s o~ any 'tate ~>r Territory, a Notary Public, any
othe1: officer.of ta c State or 'rerntory wh re nclrnowkuget1, in conformity to its laws upon the subject, a Comrnis ·ioner of D<•e(ls
etc., appointed by the Governor of this Territorv. Without th~
United ::,tates, before a :Minister, Commii::- ioner, or Chnrge d'Affaires
of the United State , resident am1 accredited in the couLtry wh ere
acknowledged, a Con ul, Vic -Con ul, or ConFular Agent of the
Unitccl StateB, resident in tllC conn try whe1 c nckno" ledgl <l, n.
Judge of a Court of Record where acku owlcclged, er a 'otary Public
of snch conntry. An unrecorded in trurnent is yali<l a· bctv.' en
the partie thereto, and thoi:;e who have notice th •n of.
Assignments may be made by in~olYent debtor, but "itbont
preference, for the benefit of al1 creditor . If, upon tru t or condition thnt gi ves any creditor prl'ferenc • or prior it v it t-lw 11 not be
valid, bnt in nch cae · propl'rty of i11so1'·ent shall become a t rn~t
fund aml inure to the benefit of all creditor', in proportion to
their claims. M11 t be in wri:ing, sub crib 'd by thl' a ::-igno, or
his ngent, authoriz •d in writi 1, g, mu t be ncknowlcdge<1 ;md
together with Ycrified inventory of ai:;e ts, linbilitil' ·• crl'ditor~, and
prop erty exempt or not exempt mu ' t b' n ·conl •tl int he officv of
the rcgit1ter of (le els with111 t\\ enty day . \\' ithin thirty day after
<late of a ~ignrnent, a ' "ig11 l' mu t give bonds in double the vul11e
o_f property _a':'signeu,_ to be approved by the cli ' trict jndge, comlit10ned for fmthful d1scllnrge ot t r u ·t, etc. After the lapi:5, o f 1:-lx
months, cm m tion or any ·reditm, ast1ign e i:.ball report and n·ndcr accmmt ot his procel'dings within tlft l' '11 day , at di ' Cretion of
the judge, to whot-:l' ordl'r all procl' •ding' are ubject. In -urance
and propert:,, exempt do not pas in as1:-i 0 ·nment unle. ·s ' pecia1lv
m ·utionl'tl. An n ·t:- ignmcnt may not arterwurd ' b, cauceled o·r
moaiHed \\'ithont, tile cot1.:cnt of C\' ry creditor nflcct ,d th •reby.
Attachment . 'l'he plail1ti:fI in a ciYil action for th recovery
of money mny, at or aftc·r th' commcnc •m 'nt th 'rco f hav • nn
attachment agaim,t the pn~perty of the defenda11t, and' upon the
grounc1s her ·m tau,cl: Fu ,·t. When 1he defemlant or one of
several defendant~, i a foreign corporation r ~t no~-re id nt of
thi territory (but 110 order of attachnwnt l;all b i ued on the
gronnd or !.!;l'OlllHls in thi clause ~tntrd, for any claim other tban a
deht or c1 •rnaml ari1:1ing upon contrnrt, jndgnwnt or dee r •e, unk s
the_cau'' or action aro e \vholly within the limit 1 of tbi terri tory,
wl11l'h fact mu~t be establit-hc(1 on tb , trial); ~ econd. When the
clefcndant, or oue o f t-1ev~;·al def •nthm t SI, ha abi:.comled with int _ntio~ to defraud ~i creclito1: ; or, Thi'i'cl. Ha , l eft th e county of
hi r ,H1ence to avoid th' _,eiv1c · o f ummon · or F om·th. So conceal bim ·elf that aOaR~atomrrcau not be ~rved. upon him; or,

or

UNIVERSITY OF WASHINGTON

631

Il ANKI G A D CO lMER IAL LA , v~-O KLAI-101\I A.
!'if.th .. Is_ about to remo ve h~ .' propE'.rLy or apa rt th roof out of the

Jnri ' d1ct1on of tb c ou rt, wuh th 10tent to d framl his er di tor'"
or. Sl.rth I ab ut to onver1 bis property or a pcn't th r of int~
money, for the purpo e of placing it beyond the reach f bi creditor"; o ,
I' nth. Has prop erty r rights in action 1 wbi h h e conceal,;_; or, Eighth: Ha ' assio-ued, rem oved or dis1iose d of, or is about
to <h p o e or, !us prop rty or n, pa1t t ber of with tlle int ent to
defnuul hinder or delay his reclitor ; or, .Nintli. Fraudulently contnt ·tect the d ·bt, or fraudule ntl y incurred the liability or obligations for which suit is about _to b o~· ha:-, been b ought; or, T nth.
W}1erc the damages for_ ~htch actwn is brought are for injuries
an8mg from the comm1s~10n of some f lony or misdemeanor or
the : --eduction of any female; or, Eleventh. \i\Then the d btor has
fail~d to pay the price or value of .any article or thing d 'liver ed,
wluch by contra ct be wa bom.1d t o pay upon delivery .
. Au ?rder of at~ach!11ent s ball be made by the Clerk of the Court
m ,yhtch tJ?.c action J bron o- bt , in any cat-e mentioned in the precechng cct1on, when there is filed in his<. flicc an n:flidavit of the
pla!nt)ff hi ll.J~eut or attorney bowing : ]f'ir8t. The nat ure of the
pla~nt11l' chum;
cond. ·That it i ' just ; 11/li rd. The amount
\\'b1cll t bc affianr, believes the plaiutifl' on ,·ht to recoyer· and Foitrth
rrhe c:s:istence of so m e one of t he grounds for an attachment num:
crated in 1 h e preceding st>ction.
W h re a. ~0btor h~l ' so ld, conveyed or other~ise disposed of his
property,,, 1th the frandul ent m t •nt to cheat or defraud his creditor~, or to bmdcr or delay them in the coll "Ction of their debts or
i ' about to. make t-1uch ' ale or conYeynnce or disposition of 'bis
proµert y, with such fraudul ent intent, or is about t o r emoye his
property, or a. rnn.1 'rial pnrt th 'rPof, wi th the intent or to the
l'ffect _of cheati_ng or defnn~ding his _creditors, or of hindering or
ctclnymg them 111 the co1lect1011 of t h en· deb ts, a creditor may bring
an action on his clnim before it is clue and haye an nttachment
nga inst the prop •rty of tbe debtor.
'
Before o d 'I' iss ne~, the plaintiff mu ' t file bond no t exceedino<1on hlc the amount of his claim; but no bond is required in casi
tlefe11dant i a n on resident or foreign corporation.
Contracts may be macle by a ll p erson s e:s:cept minors, person
o~ n.11su1_rnd mind, aud persons deprived of ciYil rights. 'fhe1 e is no
d1stmcnon bet ween sea led and 1111::;ealcd ins tn1ments. :Minors are
mnle ' nndcr 2 1, and fe n1nl es under 18 year~ of age. Any t1enefit
conferred, or agreed to be conferred npo the prornissor by any
other person, to which the promi t-01:- i>r is not lawfully entitled 1 or
any pn'j ndiec t-U:ffrred or n~i ced to bl' s nffere d by s uch pers on,
other than such ns he i s at the time of co nsent lawfully bound to
suffer, as au indncement to t he promi,:;sor, is a o·ood con;_ide ration
for a vromi::-e. Provit:nons of the tatnte of frari'ds are in force.

Conve\'auct>s. Tu ' t rnm cnts conyeying real e tnte, unle"s for
t 'rm under one year, must be declared in writin g, aud uckno wl~d.o·ed by party or hi::\ agent duly nnthoriz(:'d in writing. Wife mud
]0111.

~orpo r,3: tious mn_y be _pnhlic or private, and formed by filing
arncl s oi 111corµorat1011 wi t h the ::,ecretnry of the Territon' a.mi
compliance with statute. Tbc incorporation or cor µomte l'i o-hts
filha ll not: be inqttired in10 ollclternlly, but such inquiry mny belrnd
and action b1 ought at t bc ·nit of th' Territory.
·
Each ' tod:: holder is indiYttlually linblc for the debts of the co rpon1.t ion to the e:s.te11t of t, nm oiu 1t that i ' unµaid upon the stock
held bv him at tile time a ·tion is commenc ed ng 1in~t him. The
t rm stock bolder nppli es as well to eYCr r equit abl e o wner, an d
to every person who has a<1v~mce d tbe ins 1a lluwnt or pnrcba e money in the nnm of a 111 inor. Stock beld as collatera
i:<ecurit,r, or b.r a t rnstee, or in any other repre8 utath-e ca pacity
does not n1ake tbc hold >r c1 Rtocklloldcr wi1 l1iu t b e meanino· or these
provi~ions, e~- cept n,.;; mt,ntioned. Capital stock mny be fncrc L
1 ed
by compliance with la"v, bnt exc 1~S ' of stock, 0Ycr cum-tcr limit is
invalid .
Corporntious ma.v be disso1Yed (1) by expi rati on of n time nam ed
in the nrricle nf incorporation; (2) in"olnntnrily. b · jndgment on
acconut of neo·l--wt, abuse, o r surrender; (:3) n>luutnrily by the
district court. uµon H! ,plication, sett1112; forth complh'iuc with
statut.OJ')' re<1nircu1 11t::i, wllicl1 may be re::;isted by nny p8rson n.nd
trial luul.
Provt ' ions allowing railroad . w ngon-1 oac1, banking, eleemos_ynn ry
corporations and bt1ilding associ ntiun..:.
Jo corporation of any
other ~:Hnte oe Territory rnny tr,ms .1cr, bnsines r bold and clispo
of pr operty in 1 his 'l'erritor,v, wi1 h o nt appointing an ag ' llt upon
whom St'rvice of kgnl procc ' ' may b e mnue, a nd nn auth nticated
copy of 11ch com111ission s 1 all be filed and rl'corded in tll e oilice
of tile Secrernry of the Territory, au d of the Register of D eeds of
the co nn ty wh ere such agent reticle . It shall also :file a copy of
chart 'r or nrricl ·s of incorn(lrat io u wi th tbe Secret ,ry of the T erritory; and th e agentrl'fencd to s all re1:-i<ie in the co unty wh ere tlle
principal bnsint-Sl:3 of the cornorntiou i to be condu cted.
Courts. Th<:> conrts nf rhe '11 crr:tory arc: "npreme , Di stri ct, Pio b nte, nnd ,fn8tice of the Pl'ilC t' . ~uprerne Court has appPllatc j11risdictio n. Jnt,tice of the P ace has jurisdiction of civil udions
involving k ' s l han a$ 100. I r obat e Conl't hat:i j 11risdiction of all
matter ' , probat :rnd ciYil nc i011 , up to 1.000. But n either the
Probate 110r Jnstice'K C'o 11r t lln::: jnri~dic1ion of nc1ions upon r eal
c~tate co ntract , libel and slander, mi. .- conduct i11 offi.c , or rn aliciou prosrcntinn. 'l'he Di s tr ict Co11rt bn s o·e1wral junRdiction. It
ha nl::io the jurisdi t iou of tb(• U1ii te d "tat.es Di trict aud Circuit
court8, bn t it thcu ::iit ' a ' s parnle court.
Depositions may be taken at nny time after servi ce upon
defendant. bt'fore it ,Jnd g <:> , it 1 lerl{ of Co11rt of Record, onnty
Clerk, Ju ii.ce of the Peace, Notary Public lV[ayor or Chief Ma~i~trnte of my city or town corpor,1t , etc. Officer mnst n ot be a. relative or attorney of ith cr pnrly or therwi e intere;_ted. .May b
tak n npon w1itten J101icc, p cifying the action, or proceecli1 g ,
the 111.1mc of t h e co nr t iu which it is to be used, and tb e time and
place of taking t!J e same, which notice ball be served upon the
ad Yer e party, or hi' attorn y. 'l'he noUce mu t b e ervecl i:-o H to
allow th adv 'r~c party irn ffi cient ti m e by tl1 c usual route of trav ,J
to att nd, and om' clay for pr pmHtion, excl t1,cive of Sunday and tt1
day of enic ; and t be examiualion may, if o stattd in tile notice,
be a djourned from cln to day.
D poRition, after taken, 1nnst b e ealed, iudor ed with the title
of the case a ncJ. the name of the otli cer taking snme, and add r e sed
to t h e cl rk or th court wh re the action is pending, anc1 rn n t be
on fi.l at, l ast one day before the day of trial. 'fhe fees of tbe ofil•

e

0

cer should be indo rsed on the depo ition, which may be r etained
unt 1 they are paid, an d it bould be hown by whom paid.
Execu ti ons . All real e tate n ot bonnd hy the lien of t be judgm ent, a we ll a o-ood and chattels of the de btor, are bound from
tb time seized i~ ex:ecn tion. \Yb n two or more writs a r e sued
out ngnint-t same debtor during the term in which j ndg m ent i
rend er ed, or within t en day s thereaf ter, no preference 1' allowed to
eith r; and if the proce eds fail to sati f y all such e:s:ecuti?~s, they
must be distributed amollg all crecl1tors; but these prov1s1ons do
not affect au y preferable li en under judgment on the land of t he
debtor .
Writ must be retarnable in sixty days, except before Justices of
t h e P eace, where it must be r et urned in thirty clay5. First levy to
b e made upon goods and cllattel , but, if none found, then upon
land and tenements .
Exemptions. rro the h ead o f a family, uot exceeding 160 acr es
in one tract, in lndin g improvement:5; in city or town, not more
t hmJ one acre; al l h o useho ld and kitchen fnrnitnre. lot in cemetery,
all implements of husban d , y: to ols, apµaratns, and book used in
trad e or profe~sion; family Ii brary, portraits, and wearing apparel;
five milk-cows and t heir ca lves · one yo ke of oxen, ,Yith yokes and
chains; t \\' o horses or mulet-1; a wagon , or cart, or drn.Y, or car riage,
or buggy· o·u n: ten bo o·, t" enty sb.l'ep; saddles. bridles, ~ncl harness for nse of family; proYisions; forage on hand or growmg for
home consumption and for 11 se of exempt ._ tock for oue y ear; current wages and earnin o·s for personal and profes8ional services
within last ninety days.
The l'oreo·oiug art' not, allowed to a corporation for profit, 10 a
non-re ident, t,q a debtor " -ho i ' in the act of r e rnoYing bis family
fr om Lbe Tenilory, o r ·who bas Hbscuncted taking with him his
family.
To a single pcr8on: Lot or lols in cemeter y held for ~epnlcher;
al l w earing appnrcl, too18 , appnn1tus. a nd books b el ongmg to auy
trade or profei-;sio11 ; 0 11, bor ~e. bridle, and saddle; one yoke of
oxen; cnrrent wages for p ersonal Rervices.
11 be hom s tead is not exempt. where debt is due for purchase
money or part of ~mne, for taxes, for work and nrnterinl used in
1he con structi on of im pro\·em nts t hereo n , or for livns given by
the owner. Personal propert y is not t'::S:e mpt wh en the debt is due
for rents or achance111cnts of landlord to tenant. or to d bts t-ecured
b y lien. Per oual property is not exempt from e:s:ecuUon or attach m ent for wages of clerk , m ec llanic laborer, or servant. All
µen ion m o1wy is exeml)t.
Garnishment. Either at. the tim e of the i sR ning or the
u rnmons, o r at an)' time t11crEafte r, before final judgment in any
action to recover <lamagc::; founded upon contrn t, express or implied, or upon j udgnwn tor dt'cree, or a t any time after the is ' Uance,
in ca8l' of nr1 es.ecntion a~;ain:st. property, a.nd before the time " ·he n
it is r eturn able, the plnintiff, or some per on in bis behalf, ~hall tile
" ·i th tb e clerk an c1fii.diwit stati ng t he a mount of the p lnintiff's
claim airninst t h e defendan t or dekndants over and above all offsets,
and stating that hl' verily bel ieve that ' Orn e per ' on, naming him,
i indebted to, or ha:s p roperty, re al o r personal, i.n hi. po se.-s ion,
or und er hil' control belono-ing to t be dl'fendant or eiL ber or an y of
th e dcfc ndan t8, in the net on or c:x:ecn tilln, uaming him, and that
such dcf'cndant ba8 not pronerty liabl , to <.'xecution s uflicieut t o
satis fy tbe plniut1ff s demand, and that tbe iodebtedneF:s or
propertv nwn tioned in such nfl:idav1t is, to t be be t know] ,cto-e
m1d beli.~f of tbc per son mal~ing su ~h ::rffidavit, not by law exen/pt
from ' e1z nre or sale upon e:s:ecu11011. Any number of garnishees
may b e embraced in tbe sam e affidavit and s ummon s he1 eiuafter
provided for: b u t if a joint liability b e claimed agni11st 1·11.v, it s hall
~e ;_o stated in sn b affi~ayit, and the garnish ~e nanwd as jointly
liable ' lrnll be clecmed Jomtly proc d ed ngarnst: ot h erwise th e
several garnishee shall b deemed everally proceeded ag-ai nst :
P l'ol'ided, that tb , ord er of garni ' hment s ball not be is ned by the
clerk nnti.l an undcrtaktng on tbe part of the plaintiff has been e:s: cut ed bv one or more s nflici nt ~nretie ' , approved by the clerk and
filed i11 hi s ot.Gce, in a sum not e.s.cee( ing double the amount If the
plaintiff's claim, to the effect that t be plai11tift' shall pay to the
defendant all damages which h ' may s uRtain b reason of snch
gar~1ishment if tbe _order b e wrougfnlly obtained; but no undertakmg sllall be rcquued wh ere the party or parties defendant are
all JWn-resi<lcnts of the rcrr itor.v . or a forei gn corporation. O L, On
tiling of ' ucll affidavit, the !.!arnisbe ' nmmons shall be is ' ncd by
the ckrk aod served upon t h , ddeu dant or his attorney of r ecord
and CI h of the gnrnisbees, in the manner provided for tb e service
of sn~nmon , :l'tn r 1 ab le wi th pr_~,-if. of service in five days. The
form 1s prcsc1:1be_d by statute . v\ 1thm t he sa.1?c pet·ioc.1 th• plaintiff
may p~·oceecl. m ltke m ·1.0~1er snb eqneL tly agamsL oth er garni li ce ,
or agumst the sam e gar u1shc.'es upun a new nfiidav1t if h e ' ho 1ld
have rc~ ' on t o belic"e t!1ey bnve :::;ubscq uently becom , liabl e and
p 1:o ~edmgs shall be a rn tbe _ti, st namt d case. Th e garnisht' ,'rnay,
w1tb111 t w enty days f io m sernce of summons , fil e n,n affidavit i11 the
mano ' r prescribed by statnt .,_ disclaim111g indeb ecln e..;s or l iabi icy
to the defendant, m1d tb e proceedings ball be discontinued at the
cost of p laintiff, 11111 RS tb e plain itl' take i ' SU • in ·w hich en e the
issu es s 1nll Si~udfor ni1d n ' a civil acti nn. wi th the aftidavit on the
part o f the -plarnt1ff and tb e g,1rnisbee's affida\it a rile pleadi11g ".
lf _any ~n rmsh ee . bavmg been d u ly suu1rnou cd. shall f il t o file hi s
aftidav1t, the onrt ma) r e nder j udgment cL<!flinst him for th amount
the plaintift' suall r cc()ver a...;11i11st Lhc cl ,f 'ndant. Such garnishee
rna.y al so b e proceeded agains t a s for contempt. When au execution t:,hall bnve been r ct lll'ned nnsati:-:fied, 1.be jndo-rncnt reditor
1i •n.v fi!c nn afl:ida~it of himi:,elf , hi s agL~lJt. or attorne1,, in tbe office
of ~be c lerk , se tt mg fonh that. b e. lrns good r ea ons to . and docs,
b ell~ve thaL any pcr ' ou <:r ~orporat1on , t? b e nn,m ed. haR propert.v of
tbe Jr~dgment del>tor, or !s.mdebted to 111111 , and thereupon the clerk
shall 1s~ne an order r eq mnng :- u ch pei on or corporation to au ' wcr
on or before a dny t o ne nam ed in the ordc•·. no t, less than ten, no1:
mo c t~an twenty days from tbe dc.t e of i ' ::ming t h e 'am\ all inkrroga~o11cR that. nrny be p1opounded by tll<' jud2ment d 'blor, conern1_n g ~nch 111deb tertn ess or prope1 ty. rl'be jndg m 'Ilt cr ni10r
?r h1 attorney, :shall prep»re interrogato ric :s conccrnino· n ch
rn<l e?ted n e8s or pr~IK'rty, a cop of whi c h "hall b :-:;encd on 1.he
garrn ' hee llt th' time of the -crvic e of t h e order or within three
day s_ t hc ~·eaft er. And the ~arnishc , hnil on o{· before the tl,1
r c.• q m~·ed 111 the ord r, Ji.le with t lw clerk tru ,1nd full nu wer to ail
sni· h rnrerrogato r ics, vuificd by hi~ aflidnvi t.
11 u_b cquent µ r oceccling against the garni h , eball be ihc
same as m cut::e , of attach.m ,llt, a far a s a.pplicnble.
Original from
0

0

UNIVERSITY OF WASHINGTON

BA~KIXG AXD
laximnm rate allowed
Inter ·t. The legal rate i', per cent.
by contract i 18 per cent. r ury forfeit..;; all iuterest, but doe not
atfect the principal.
Judgments. Juclgm nts are lien_, against real estate for five
year . If rendt·red before a Jmitice of the Peace or Probate J11d•)e
they bec~rne_lieus upon the tiliug o· a certified copy with the cl~:k
of the D1t-tnct Co~rt. Judgment~ bear illterest at , per ceur. per
anuum. If execution lrnll not he sued out within ti\'e year' from
the dare of any judgment that nmy 1s or mav hereafter lie 1·endercd
in any Court of Record in tbi~ Territory. or if ti Ye year~ .J.1all bave intervened betwe_e11 tlw da_te of th· Ja~t execution i.:-sned on. ucbjndgment _and the tune of smug ont another writ of execution thereon,
suc_h Judgment shall become _dormant. and shall cease to operate as
<1 ll_en on the estate of tl_ie J!Hlgment debtor. Judgment may be
renved upon proper apphcauon, and after notice. within one year
after becoming dormant.
Limitations. Action, if bro11gllt upon written contract within
five years: . on_,~ contract not in w I iti ng ex pres~ or i rnpll ect, or npon
statutory l11~b1lity other than the penalty of 1orfeiture. withiu three
y_ear . Actions for the recovery of real property old 11pon execution mu t be brought within five ycnri::- Hfter elate of the recording
of the deed made in pureuance of ·a]e; for the recovery of real
pr~perty old by executor , administrn.tors or guardia11~ upon ordP.r
or Judgmc11t of the court clirectin~ ~11ch eale, " ·ithin !iYe years; for
the reconry of real property old for tnxes, within two yen rs after
the date of the recording of the tax deed; for the rec:oyery of real
property not a hove mentioned, wHhin :filteen years· for the-forcible
entry :mcl detention of real property. or th'e latt'er only, within
!":o ~(ears; for trespa~s upon real 1_n·opert_y, for taking, dct.,ii1iing or
rnrnnug personal µrnperty, mcluclrng act101 1s for the ~pccific recovery of per~onal property, for iujury to the rights 9f another, not
upon contract, and not otherwJP.l' enu111erated, for relief on tlle
gronnd of francl (the cause of act ion in suc11 case does not »ccrne
until thl' disco very of 1he frand) "itllin two .\ears: for libel. ::;lander,
n;..:::;anlt and batter.v. mnhci ,us prosee111ion or false imprisonme11t,
tor penalty or forfeiture upon a statute. except \\'here diffen·ntly
pre~cribed, withm one ycnr: 11po1i the oftic al bonel or undert,1king
of an executor, adrninh:tn1tor. gna1 dian. sheriff, or auy other oflicer,
or np Pn tlJe bornl given in nttaclnnent, injunction, ane8t or any
car:o:e wbatever required by statute, \\'ithin five yea1s. For relief not
llereinbefore proYidecl for, \\'ithm five years. ·
J\larrie<l Wo tt1 en retain the ~ame legal existence and personality
after rnarriag·e as be fore nwrriage, m1cl receive tile same protection
of all their rigbt"< as women whicll their husbands do as men; and
for an injury ::-nstaillecl to their reputation, person, propertv, cirnracter. or 11at nral rh! t1tB lul\ e the same right to appeal in their own
name8 to co11rt R of law or equity for redress and protection that
the ir hnsbandB have in their own names
l\lort ga ~es. :'.\Iortgar:es of personal property must be signed by
the morrg,Hi;or and atte::-ted i y two ,, il11esse~, who 11111 t sign their
name~ , and 110 further proof or acknowledgment is necessary.
'They may bl' foreclo:secl by action in court. or by 1rnhlic notice for
trn dn:1 i::, anc1 public sale. Chattels coyered by mortgage mny be
levied upon by attachment or execution, if 1he otlicer pays or
ternlers to the mortgagee• tbe amou11t of the mortgage debt and
intPrest. The mortgage. or al' auth, ntica1ed copy thtrl'of, mm,t be
filed with the register of deed~. and if not so fi]c,ct. ir is yoicl aq
agaiust creditorP. or Fn1b•cqueut pnrchn "ers 1111d i11c11rnbiancers in
good fai :h nnd for valne. lt b comt:'S invnlicl after three years as
againi,:t other creditor, s11bseqn<:'11t p111ch•1!:'er- or incnrnbrancers
111 good faith. t)ut it may he n·u<.'" eel for a11 additio1111l three vea1s
by filing an affitlaYit ofi·enewal within thirty clays before 1he 1·xpiReal e!"tnte mortga~e:; must be
ration of tbe fir:-t tl,ree yenr1€xecntcd the :-amc as u gnrnt of l'l'cll 1>rop i rty.
Negotiable lnstrulJlenb;. 'I'hese are bill of exchang1',
J)romisson' uotet;, ba, k uotc , checks, bonds, aud certificates of
dl'po;..it. 1f withonr elate they are payable immediately, and if
without f-pecified place of payment, payable whe1e maker may be
found . Valuable coui,:ideration is presnmrcl from signature of
dnrnn, acceptor. and indord r. Protest, presentment, and notice
may he waiYed, ·waiver of prote:-t " ·aiYes presentmeut and 11 otice.
Rea~onablc rare and diligence in prese11tment l'equircrl. In the
abl-ence of exprei::;.. ~tipulation to the contrary, three days of grace
after prcd·ntntion allowed on all bills of exebange, or drnf , s payable
at i-:ight, but Sunday and holidays are exclnded in th,· computation ~ame allowed for pnyrnent of all nromis, ory notes. bills of
€X ·bange. and draftR where time is E:pecified on face. Notes due on
demand snbjl'ct to like days of grace after demand is made. Damnge1:, for accrued intere t, ,e-excbnncri>, expent:-es. etc., me. if in this
cbrnska. Iowa, 11Iinnesotn, ·wisconsin,
'TC'rritory. :.! per cent.; in
Jllinob, and . Ii . . omi, ~ per cent.. in any otber State or Territory,
5 per ce11t., and in any foreign conn1ry 10 per ceut. "\Vmver of
JH'<'seut1iwut waives uotice of c1il'l11011or aleo. 11nle::::s contrary i
e . pre!- ly i:-t ipnlated; but wai\ er of notice doc' not waiY pre·(•11t llll'llt.
Pro<'edure. rrhe ch il code of the .'tate of I ansai::, with light
moclificntio111-1, i in force i11 Oklahoma Territory.
Repleviu. An ordrr for the nelh ery of p1 opcrty tn the plaintiff 1--hall h · made hY the clerk of tlH' court in which 111e nction i
l)l·o11gllt, "he11 tiler : i-- fi ed i11 hiF< oflice mi nflidavit of' the plaintiff,
Jii agelltor attorney, ~llowiug: First . . \ (ki,.niption of thepropert) claim< d. ,'-,'('( 011r/. 'l'hat the plninti:ff i tbt• o,,·11er of tbc prop(•rty. or h :1-- a '-'pcciul ow1w1 ... hip or illt •re t 11H'r •iii, t trng the facts
in relation then· o, and that he i entith·d totlw i1mnrdiH1e po-;Re ,ion of the prorw1 ty. Thi111. That the JH0]ll'l'ty b ,no111.rf'ully
detainc•cl h,• the cl •k11dant. Fo11rlh. That it wa-.; 11ot tuken in
CXl'Cntio11 oi1 m1y 01cll'r or j11dgment again,t ·aid plnintiff. or for the
payment, of auy tux. fi1w. or amerC'cment, a;- c·si-:c·cl 111rnhis1 him. or
b)· virfne ol mi onl ·1 of delivery i ·;..uccl 1mclrr thi mticll\ or a11y
other11w1-n<' or tlnal proc, 1-~ i · uc<I 11gain:t eaid plaintiff; or, Fifth. If
takC'n in CX('Clltiou. or on any orclcr or j utlgml'11t agnirn-t t lie plaintiff,
that it i •xempt b, L1w trnm being 1:-0 t:,k<' Jl. Si .1,th. rl'lle n ·tual
v11lne of the proverty. \\Tll ·n ric'\'l'rul :,rticlc· Hl'l' <'lnin1C'cl, the valn
of arl1 i-llall he· i-1at<'d a rH·ar a practitahlP. B ·for<' the• or cl r i
ji:.;-.\l(•d the plail1tiIT lllll!::-t <·xc· ·nt e mi nndertakil1g, "ith one· or mor
E-11lliciu1t i,-11retie:, in 1101 k~~ tlrn11 clonble the value of th' property
hn o]yed, nncl al'-'o to thl' t•jfrcl tllal h' '-' ill r •t11rn 1hl' property to
tl1 cl •fend:IJlt. il' 11 , •tn rn thereof he adjnclged. "\Yit l1i 11 twc•ntyfour bom~ uft ·r t:'Cn 1ee of a ·opy of the onkr, the• defemla11t may
r cowt· poi-:sPi-:-;ion uf the prop ·rty lJy ex' ·1l1ing lli m1tlertakiua to
1

th e piaintiff, to be approved by 1he sheriff, in not les than doubl
the Yalue of the property et up by the plaintiff in his nffidavit;
othenri::-e the eberi:ff ~hall cl liYer the p1operty to the plaintiff.
T axes. Taxes on r ,al property are a perpetual lien. Tlwy arc
a lien on personal property "hen delinqent two years. A 11 laxes
ar'-' dne first J\lonclay of Febrnary. Lnnd eold for ta:xc~ rnay be
redeemed within t\\ o )'earf:, by pa)·mcnt of nmonnt of pmcha1:w,
twenty-five per cent. intl"re1-t, 1111d ta:-.es accrued. Tax dc'ed._ i~sue
after two years. Penalty for clelinqu 'ncy, one per rent. n month for
three mouths, and t ,Yo µer cent. a month for econd three rnonth::;,
and fiye per cent. a momh thereafter and until taxe are sati tied.
Wills. ::\farried ,Yornen may make same as 1f unmarried. T
make mmc11pt1tive will rnlid the state bequeathed mu~t not exceed
$1,000. mu t be proYed by two witnes~ L" ·wbo were JH'C$ent at the
making thereof, one of whom wa at the ti me a$kecl by the t stator
to bear witness, or the decedent mu r, at timl', luwe been in actual
military service in the field or at ea, and in actual contl'mplation,
fear, or peril of deatb. Ologr~1phic wills are valid without witnesse._.
Other will mmt be signed byte tator, or in bis presence. nt his
direction, and be mnsr. at the tine of ~igning. tlcclure to the atte"ting ,\itnet- es that the in trumeur i bis will. aud there must be two
attesting wituesse who sign at testator's request and in bis
presence.

OREGON.
BA "KING LA "\V.
(Re\'ised by GEo. H.

and H. G. PLATT, Attorneys at Law,
Portland.)

DuRHAlH

There are no State banks, and no laws regulating banks or banking.
Section 1 of Article xr, of the constitution of Oregon provides
that: "The Legislative Assembly shall not have the powP.r to establish or incorporate any bank, or banking company or money institution whatever; nor shall any bank, company, or institution exist
in the State with the privilege of making, issuing, or putting into
circulation any bill, check, certificate, promis ory note. or other
paper, or the paper of any bank, company or person to circulate as
money."
The business of banking is carried on by National bank . private
corporations, firms, and individuals without any re triction on
the part of the State as to what investment they may make, or
how their business shall be conducted.

COJ\Il\tERCIAL LA'\Y.
tate by nny Judge
otary Public. Out Qt' the State before any oflicer authorized by the
l1:1wEi of the State, Territory or diE:trict where rnnde, or by a ommissioner appointed by tbe GoYernor of this State for such purpoE:e. If not taken before such Commiesioner, or before a Notary
Puhlic, certified 1111<.ler bi!:- uotariul seal, or before the Jerk of
Court of record, certified unner the sea] of the Comt [Lawt:i 1891],
it must have attached: thereto a certificate of the Clerk or other
proper certifying officer of a conrt of record of the ronnty or district
within which it was taken, under the Mal of llis office, that the
person whose name is subscribed to the certificnte of acknowledgment was, at the date thereof. such officer a be is therein r preEiented to he, and that be believes the signature of such per on
subscribed thereto to he gemline; and that the deed i execnted and
acknowledged according to the laws of such tnte. Terntory or
district. (See Deeds.)
Arrest. The defendant may be arre ted before judgment in an
action, either for the recovery of money or damages adsing out of
contract when he iR n, nou-resiclent or iEi about to remove f1·om the
State, or for an injury to person. character or j)l'0perty, or detaining or converting property; or for a fine, penalty, or promi e to
marry; or for money receiYed or property embezzled or fraudulently misapplied, or couvert<'cl by n public officer, or by an attorney,
or by an officer or aµ-ent of a corporation. or 1)y any per on in a
fiduciary ca parity; or for misconduct or neglect in otnce or in professional employm ·nt: or to recover 1ier onal property fraudul ntly removed or concealed; or where he bas been guilty of fraud in
incurring tbe obligation, or hn remowd or cliE:poEwd or hi property, or i about to do so witb int ent to defraud hi er ditor . The
plaintiff must mnke aflidavit aud give bond irnilar to those in attachment. No female can he arre1:<ted ·xccpt in an action for injury to person, character or property. The defcndnnt may be released on bail. A defendant may be arre1-1ted after judgment on
execution in the abov cht scs of actions. EYery 1wrson confined
in jail on _execntion may be diE:charged at the end of ten day
upon bowrng that be ha , no. property not excm pt from execution
irnd none conYcyecl or conceal 'Cl. After lreing clii! barged, the debtor i forever exempt from arrest upon that clcbt.
As igumf'nts and huwlvency. There i 110 in olvent law.
o g n ral a ignment bv
There is au act governing a 'ignmentE<.
an in olv nt, or in ont mplntion or in olvency, for the benefit
creditor , is valid unle s made for the li encflt of all hi creditors
in proportion to the amount of their re ' p ective claim . The a ent
of creditorE< i' presumed. The debtor i-,clcct bi a ign e. If not
sati fl. cl with the a sign c chm, ·n by the d ebtor, two or more creditor may apply by p etition to th e Judge or the ircnit onrt of
connty within tbirty day from th making or recording of the a signment, and th Judge will order a me ting of tbe creditors to
choo e an a' ign e in lien or tb e one selected by the debtor. The
le ted by th creditor mu t b a re id cnt of the same
a ig11e
'rcditor' may appear at th me ting in
county a th a ignor.
per on or by proxy. bnt, before being entitled to v ote, mn t present
to the County lerk, who pre ' ide at tbe creditor 'meeting aver'
Original from

Achnowledgments may l)e taken in tile

of tbe Supreme Court, County Judge, Justice of the Peace, or

a

of

UNIVERSITY OF WASHINGTON

B NKI

OM IER I L LA·w - OREGO

ifled stat rneut of th ir claims. A majority, in numb r and value,
or the credit or' att udiug the m ting, 1 ct au a igue or assign .
11 a 'igue s must giv b uds in double th valnc of the
estate. An a igum nt discharg ' all atta bm 111 s on \Vhich judgment ha not been had at the tim of the a ignm nt. 'rhe a eio-n e must giv 11 tice by publication and mailing to creditor ,
who hav three month in which to pr sent claim'. D bt to become
due as well a debt cln , may be pre nted. Exception may be
filed to th dernn,ud of any Pditor and th, Court, will pa" upon
them. Th' a 'ignee bas full power to dispose of th estate, real
and p r onal, and di ' tributes the proceeds among th creditors pro
rata, uncl r the order or th 'ir uit Court, which hn exclusive
j urisdi tiou of a' igurn nts. ·when it appears that the debtor has
a t 'd fairly and justly, and ha~ be n guilty of no fraud, or concealment of his prop •rty, and that his estate ha been made to
realiz the fulle t amonnt po sible, und not less than fifty p r cent.
-0f bis indebtednes' over nnd nbove all expenses, the Court will,
upon the allowance of the final account of the assigne , rnak an
order discharging the debt r from itll debts exi tin g arraint:'lt him
:prior to the ass1gnm nt. A debtor can prefer a creditor by confessing judgment, giving a mortgatre or transferriug specific property
in payment.
Attachment proce s may bP. had in actious npon contracts,
expn's" or implied, for the direct payment of rnouey, if the contrnct i ~ not secured by mortgn!!e, lien or pledge upon real or peroual prop rty, or, if so secured the security has been rendered
nugatory by the act of the defendant. Also in action npou contract against 11 defendant not residing in this tate. An Dflidavit
muet be mnde Rhowing the exj ' tence of th fucts, and a bond giYen
equal to the amount of rhe judgment demanded. Debts owing the
defendant may be g-arnisbeed.
Hills of La<lin~. M nking out or exhibit in g an)· tllse or frauduh'nt iuYoice or bill of lading is punislrnbl by imprisonmeut.
Corporations. Private corporntions are formed under a general law by thn• or more per:-011~ making. subscribing aud acknowledging, as in tbe ca"e of deeds. written articles of incorporation in
tnplicate-:filiug one copy with the
ecretnry of State, nud
causing the same to be recorded by him in n book to be kept
in his office for tbut purpose; on with the "'ounty Clerk
of the county wh ere th e principal office or plnc of business
of the corporation is to be, nnd cansing the rnme i. o be
1·econktl by him in n book to be kept i11 his otnce for
thnt p!trpose, and r taming the third iu the po session of
the corporation. The articles mnst specify: (1) the name
ilssmned by th corpo 1 ution mid l>y winch it hould be known,
11,nct. th duration of the corporation , if limited; 12) the enterpri ' e, busiuess, pursuit or occupation in wbich the corporation
proposes to engag ; (3) thP plnce wlwre the corporation propo es
to have its principal office or place , f busmess; (4) Tlle 1:1rnom1 t of
the capital stock of tlle corpurntion; (5) the amount of each share
of such capit111 stock; (o) if tbe corporatinn is fori cd for the purpose or navigating any stream or otll1·r water, or rnnking or con \Strncting any railroad, macadamized road, plank road, clay road,
canal or bridge, the termini of ~ucll navigation, road or canal, or
the site of such bridge. After filin~ the articles of incorporatiou, the
corporators open books nnd receive subscription to tlJe capitul
stock. After one-half or more of the capital stock ii:; subscribed,
the stockholders meet and elect directors. A director must be a
stockholdl'r in the corporation and a resident of the tate of Oregon; except, tl:~t in corporations for the pmpose of constr_ucting
railroad or nuhtary wagon roads, cnnals or flume , or carrymg on
mining enterprises, or pnblishi11g newspnpers, or condncting in 'titutions of leaming, or for the purpoBe of coudncting any manufacturing lrnsineRs, a minority of the board of directors may reside
out or the State. DirC'ctor must take an oath of office. The directors elect a president and sec retary, and s u ch other officers as
arC' req mred. The corporation has apthority by tbe name ass nm ed
in th articles: (1) to sue and be ued: (2) to contract aud be contracted with; (3) to lrnve imd use a. corporate seal, and the same to
alter at pleasnre; (4) to purchaRe, possess and dispose of uch real
and per, onal property as may be necC'ssary and con veni n t to carry
into effect the objects of th corporation, and to take bold, possess
and dispose of all n•n,l and personal property donn ted to such corporation l>y the United St11te1:1, or by auy State, t Prritory, couuty, city,
or other municipal corporation, or by any person, firm, as ociation or private corpo1:ntiou, for the P\Hpose of aidin~ in ih~ objects or such corpora tion; (5) to appomt such subordinate officers
and ao·ents as the busiuess of the corporation may require, and prescribebtbeir duties md compensation; (l:i) to make by-laws not inconsistent with any existing law for the sal e of m1y portion of its
stock for delinquent or unpnid HR._esrnents du thereon; Yvhich sale
mny be made ·w ithout judgment or execu tion, proYided that no
such ale shall be made without thirty days' notice of the tim e and
place of ale in som_e newspaper in cir~ulation in th n ighborhood
of imch cominrny; for the transf r of 1ts st?ck, fo~· the nu~nageme'?t
of it property, and for the g 11er~1l regnlnt1011 of 1ts a:f'.[an~; (7) 10
case the object or purpose for wlucb uny imch corporation 1 rncorporated is in whol or in part to C<?nstruct, or con st ruct and op r~te
a railroad, to len"e any part or all 1 ts road to any other compauy mcorporatc:d for the purpose of maintaining and opera ti no- n railroad,
and to lens or purchase, rnniutain and opt'rnte any part or all of any
other railroad constructed bv auy other company nµon such terms
and conditions as may be ng're d npon between said companjes reepectively. Any two or nior' railroad companies whose lines are
connected may p erfect any arrangement for t h eir common b enefit
to a~sjst nnd promote the object for wbi h they were created, providt'd that nothing in thi' ct shall be con trn d to authorize the
leasing of nny raiiroad lili t? any company _or orporat)on owning
a road which form a compet mg or parallel hue to 1ts railroad. Tho
stoekbold I meet anrnrnlly and elect dire I or , ·who bold their
office for one vear and until tb ir ucces_,ors are elected and qualified.
The stock in private corporations i pers onal property and subject
to attachm nt, execution, levy, and sale as such. All sal s of stock,
wbC'th r voluntiuy or oth rwis , transf r to the purchaser all
right of th ~ original bolder, and subject such purcba~~r to the
ayrn nt of any nnpaid balnnc du on such tock; bnt 11 tbe ale
e voluntary, th eller is ·till liable to existi~g er ditors for the
amount of l"nid balance, nnles tb
arne be paid by the purcba er.
A orporation faili _g ~o el ct directors and _commence th~ transact1on of l>nsines w1tl11n on y ar from the filmg of the articles of
incorporation, or c a ing to curry on bu ine s for six month , for-

633

feit it corporate exi tence. The capital tock may be incr~a~ed
or diminished or the vmount of tlle bar s chang d b.v a maJonty
vot of the tock at a tock holder· ~ meeting called for that_purpose.
The directors may :file supplenv-•nt ary article of incorporation w~en
authorized by vote of th ' tockholders, for the purpo ~ of eniagmg
in any new enterprise, etc. The etockbolders are ~iable tor the
indebtedne of the corporation to the umo1~nt of the1~· tock subscribed and nnpaid, and no more. _C orpora~10ns ~rga!11zed for C<?Dstructing railroads, tc., mny :s: •rc1t'e the r1ght of em~nent doma1~.
Landi condemned to th<'ir u t\ and the cornpen~at1on to be _paid
by them :fi ed by action in the Circuit ourt. Foreign c_orpora tlon_ ,
upon complying with t be law of the S_tate, may do _ou mess therem
a like domestic corporations. l\Iunic1pal corporatrnns are created
by special At ts of the Legi::,; lature.
Courts. There is in N1ch yoting precinct a Justice of the Peace
with limited criminal jurisdiction nud civil jnri sdiction up to $250.
These court are always open. 'l,heir proce:_.. can n ot ~-ea~h _la~ d .
A ounty Court in each county haR exclusive probate Junsd1ct10n
and civil jurisdiction up t o $5U0. They 1!1eet _fro:rn four to twelyC'
times a yenr. Circuit C(1urt bas unhm1ted J nr1sd1ct10n ~oth m
civil and crimi11al 11.11d holds from one to three t rm H, year 111 each
county. Supreme' Court with appellate jnrisdictiou only meets at
Salem twice a y ar, and at Pendleton once a year.
Deeds execut ct in the Stt1te must have two witnes es and be
signed and sealed by the grantors. A 'Croll by a p n i~ suilicient
seal. Out of the State d eds may b e executed accordrng to the
laws of the State, Tl)rritory or district where made. (See Acknowledgments.) Deed s are recorded in the office of the County
Clerk of the county in which the land is silunt d. If not so recorded
within five days, they are void against any subsequ nt purchas~r
in good faith, and for a valuable consideration whose conveyance 1s
first recorded.
·
Depositions. Jn all aitidavits and depositiont-- the witnesB
must be made to speak iu tbc 1irst pe1son. Deposition::; shnll _l>e
taken in the forms of qnestioul:3 aud nns"·ers. unlt ~s. the part1_eB
agree to a diff-'rcnt mode. ( 'i di Code, 2li .) Depos1t1ons of w1t1.. esses outside of the Stnt may lw tvken npon a commist"ion issued
by the conrt or th e clt•rk thC'l'l' f, on the application< f ei~her party,
upon fiv days' pre-dons notice to th otbn. lt shall be iss ued ton
person ngreed upon by the parties, or, if they do not agree, to a
judge, jnstic of the µence, 11otnry pnbJic, or clerk of. a court
selected by the oflicer is::,uing it. (l'1Yil Cotle, ;370.J Such mtenogatories, direct and cross, n~ the rC'spectiYe pnrtie:-- rnny prepare, rnny
be annl:'Xl'd to the commi1'sion. or." ben tlle partiet-- agree to that
n1odc, the exn mina tion nrnv be with out written interrogntones.
(Ci vil Code, ~70.) Either pa1 iy mny take' the deposition of a \\"itt ess
m this State, l)(•fore a.ny per~ou authorized to :1dminister oaths,
upon gi vin g the ndYerse pnrt) th ree dnys· µreYions not ·ce, an_d one
day·s additional rotice for e, l'l'Y twenty-five miles the ,ntn
n'sitl e frorn the phHe of t rial. of the time and plac of xnmination.
i.he mun o f the offic, r a11d (jf the witn 'S . Either pnrty rnny attend
upon uch l'XH 111inatio11 and cxnmine the \\'itness upon oral interroo·atories. 'The depositions shnll be written by the officer tal-in°·
th~ t-amc. or by tbe witness, or by some disinterested person, in the
pre enc~ aud nuder ihc direction of such otlicer. V\ hen compl< ted
it " IJall be rt'ad to or by the witness nnd snb:3cribcd by him. ( -,ode,
t:-ec. 8:?"l. ) 'l'he offic er tnking the deposition slrnll append thereto
hi~ certiticat , under the senl of his office. if there be a sen!, to the
eiiect that thC' deposi1 ion wns taken before him, at a place mentioned. between eri.ain honrs of a day or days ment1oned, and
n 'dnced to \\Titina by a perBon therein named; 1 hat before proceeding to the examination the witncst'- wa dnly worn to tell t he truth.
tht> wbok ti nth, 1.md 1101 hin g bnt tbe truth; that th e deposition \\"il ::,
rend to or by the \\'ii.n c. ' , nnd then by him subscribed. (Codv, /::,e<:.
H:25.) 'J'hc derosition sho uld then b securely s nkd, und acldre s d
to the cornt of the county it:::;uinp; tbc cornrniBsiou. l pou the em ·elope shonlcl be indorsed the title of the cnse, nud the words:
'' Depo~ition of--- ".
.Executions. The party in who'e fnyor judgment is giYen nm:·,
at any iim th 'renfter within ten year~. haYe executi 11 i"sued to
euforcc 1rnym nt. .A fter ten yenrs the jndgm nt is conclnsiYe!y pn'snrnecl to luwe beC'n paid. Execntion may ist-ue against the p ' rson
or jndgment debtor, ngain . : t his prnpert)~. or for i.he delive1y or real
or per8onal property. r1 he snle of propetiy upon exe ·ntion ball
lw made by auction. Property 'old 011 exec ution, when 1:-nbjcct to
r edemption, may be redet' rned by the followin!s p cr::::011" : First- The
jndgmC'nt debtor or his sue ·e sors in iuterest. ~ecornlcred itor
ha /ing a li en by jnd 0 ·rne11t decrC'e or rnortgn ,ge on any portiou o f the
proped .
li 11 creditor may redeem within ..: i:s:ty days after confirmation of sale by the conrt. 'J he judgmeut debtor may redeem
within fonr months after contirma tioll.
Exemptions. Homestead exempted from judicial rnle. Must
be actual abode of, and own ed by family, and not exceed 160 acres,
or one block if in city, or $ 1 500 in valne . (Laws 1 "03, p. 93.) Personal property exempt includ s books, picture" and musical instruments to the value of $75; wearing apparel to the value of $100, and
if a honsebolder, to the value of $50 for each member of the family;
tools, implements, appnratn ' , team, vehicle, barn ss or library
wl1en necessary in the occupation or profe._ sion of a judgment
debtor, to the amount of $4.00; if the judgment debtor be a householder, ten sheep with one yenr'e fleec , two cows, five swine, household good!:-. furniture and uten ~ils to the valne of $300; the seat or
pew occupied by a bouseh0Jder or his family in a plac of public
worship: all property of the tate in any county, incorporated city,
town, or village therein. or of nny other public or municipal corporation. No article of property is exempt from e ecution issued ·
UJJ0n a judgment. for the purcbUE<e price. Tbe judgment debtor
must el ct and reserYe such property as he claims as exempt at the
time of I vy.
Jusur ance . The Secretary of State is Insurance Commissioner,
and no company can do business without his lie nse. Companies
formed under tbe Jaw of the tate muet haveat least five director s
who are resident and prope, ty owners in the tate and stockbold r in the corporation, and a paid up, unimpaired,· ca h capital
stock of $190.qoo inve t d in the tate in U. ., tate, city, county
or scbool -d1 ~tnct bonds, or notes -::ecnred byfirst mortgage on unincumber ct real e tate of double the value of the mortgage . They
can not in" @tin ruining stocks, no r make an y loan to a stockhol der,
nor a stockholder b interested in any loan, p ledge, ecurity or
property of the cornpan,y, ~cep t t o be a stock holder . Foreign
Original tr<Jm

UNIVERSITY OF WASHINGTON

634

BA KL.... G A D

Onl~IER CI L LAW -PE:N SYLVA NIA..

co~pa_nies mu t depo it with the tate Trea urer $50.000 in money,
or m rntere t bearmg U. ., State, county, city or school-dis trict
bond , the market value of which i at or above par, or hands or
n<?te~ ecured by fir t mortgages upon unincum bered real estate
w1thm the State of double the amount of the loan· or in lie u of
such deposit, make an investmen t in real estate in the tate of not
les than . 65,000 to be approTed by the Commi sioner, the title to
be v~ ted m th~ State Treasurer as Tr_u tee. The company receives
the rntere _tor mcome from the depo 1t or investmP.nt. No depo it
can be withdrawn without ix month publicatio n of notice.
Foreign corporatio ns mu~t al o execute and record in each county
where they have a resident agent, a power of attorney to some
per on, a re ident and citizen of the State and United l::!tates
con tituting him its attorney-in -fa ct npon whom service may b~
made so as to give the court jurisdictio n of the company- and
must show by the insurance reports or certificate of the Insu~ance
Co?1mi~ ioner of sol?e other tate that they po sess a paid up,
ummpa1re d, cash capital of at least $200,000. Companie s not incorporated . in the United States, except marine companies , must
have deposited or invested for the benefit of policy holders within
the United States, in at least one ~tate, a sum equal to $200,000 in
excess of its liabilities in the United States. Orders, secret societies
and benevoleu t and co-operati ve associationEl, such as Masons, Odd
Fellows, Druid , Knights of Pythias. Ancient Order of United
Workmen , Grangers, Firemen, etc. are not insurance companies
under this act. Face of policy true value in case of total loss and
the meat'lure of damage except in case of fraud or where loss is
cau ed by criminal act of the assured. Fire insurance companies
must pay an annual license of $50, and life and accident companies
$100. Insurance brokers a quarterly license of $i5.
Interest. Legal rate, eight per cent.; contracts may be made
in writing for ten per cent. Uirnry works forfeiture of principal
and interest, but judgment will be rendered against defendant tor
the principal of the debt to be paid into the Common School Fund
of the county in \\ hich suit was commence d.
Judgme nts are a lien from the date of docketing on all defendant' real p, operty within the couuty or counties where same is
docketed, and on all which he may subsequen tly acquire during
the life of' the judgment. If ten years are allowed to elapse without issuance of execution on the judgment the lien ceases, and the
judgment is conclusive ly presumed to have been paid.
Limitati ons of Suits. On contracts not under seal, express or
implied, ix years; on judgment s or decrees of any court and
e.ealed instrumen ts, ten years; recovery real property, ten years.
Revivor: Part payment or new promise in writing.
1\Iarried Women retain their real and personal estate owned
by them at time of marriage or afterwards acquired, free from the
debts and control of their husbands. A married woman may make
contracts in her own name, buy goods, and give notes in settlement, and her rea1 and personal property may be sold to satisfy the
same. She may dispose of her real estate by will, subject to any
rights which her husband may have as tenant by the curtesy.
Wife may manage, sell, convey or devise by will to same extent and
in same manner as her husband can. She is entitled to receive and
hold the wages of her personal labor, and !.rne therefor in her own
name, aud she can prosecute and defend all actions for the preservation or protection of her property and rights as if unmarried . The
expenses of the family and education of the children are chargeabl e
upon the property of both husband and wife or either of them, and
in relation thereto they may be sued jointly or separately . All
laws imposing or recognizm g civil disabilitie s upon the wife not
imposed or recognize d upon the husband (excepting the right to
vote and hold office) have been repealed. The wife's dower and
the husband's curtesy in real property are preserved.
Mort gag., s of real property are executed and recorded in the
ame manner as deeds, and foreclosed by suit in equity, but must
be confin d to property in one county only, except in cases of railroads who e mortgages or deeds of trust may embrace property in
more than one connty. Chattel mortgages , or copies thereof, must
l)e immediate ly filed with the County Clerk, and cease to be valid
as again t creditors or purchase r after the expiration of one year,
unle s within thirty days next preceding the expiration of said
year there is an affidavit made and filed therewith, that the
debt which it secures is unpaid and the mort~age still in force.
A chattel mortgage may be recorded, in which case the renewal
affidavit i~ not UL cessary. A chattel mortgage, where the mortgagor
is allowed to remain in possession and dispose of the property in
the u ual course of his business, is void as to purchaser s and
attaching er ditors.
Totes and Bills of Exchang e. All negotiable instrumen ts
are commerci al paper. They are not required to be paid at any
particular place unless a place of payment is specified in the
m trnment. Days of grace abolii::hed. (Laws 189:-3, p. 10-!.) No
per on can be charged as an acceptor of a bill of exchange, unless
th acceptanc e be in writing, shined by him~elf or bis lawful agent.
Inclor er . if properly charged by protest, are liable as long as the
maker. Damage allowed on prote ted bills of exchange: domesegotiable in truments
tic, fl.Te per cent.; foreign, ten per cent.
falling due on a 'unday or a holiday become due on the next bmdnes day. Legal holidays are every Sunday, first day of January,
twenty- econd day of February, thirtieth clay of May, first Monday
in 'eptember, fourth dny f July, twenty-fif th day of December ,
·very day on which a general election is held and every day appoint ·d by the •xecutive authority of the United States or this
8tate a .. a day of fa tincr, thank gi ing or holiday. Wher holiday
fall on a, ' unday the 1onday following hall be observed as such
holiday.
uits. Practice is under a ode similar to that of ew York,
but the di_ tinction hetw •n law and equity i r tained. Suits and
action in tlle Circuit and ounty Court are commen ed by filing
ummon i
a verified complaint with the Clerk of the Court.
erved by peri-oually delivering to the debtor or l aving at hi~
re idence, with a white p r on over fourteen year of u,cr , a member of hi family, a copy of the ·ummon · and a certifi d copy of the
complaint , and if d btor doe not app ar or anF<w r within ten days,
if erved in the ounty in \\ hich action is l ronght, or within
twenty day , if erved in any oth r county in the 'tate, the creditor
may take judgment. In ca of non-re id nt debtor who have
property in the tate, of which the Court ha acquired jnri diction

by attachmen t or otter lien, the Court may order service by pul>lication of the summon , and a judgment obtained upon uch sen ice
i valid to the extent of the attach d property.
Taxes. Lands sold for taxe may be r deemed within one y<•Hr ..
on payment of the purcha e money and twenty p r cent. thereon;
within two year , thirty per cent.
TI' ill . EYery person t\\·enty-on c year of age. or Round mind ,.
may make a \~ ill of all hi , estate. En~ry per,on over eighteen) em
of ao-e, of sonnd mind. may dispose of his goods and chatt el-:.
EYcry \\·ill shall be in writing, signed b)· tlJe testator or some other
person nuder his direction. in his pn•...,ence, ,md ' hall be nttr tt d by
two or more compe1ent witne ' e subt:-cribmg tbeir nau, s to the
will, in the presence of the te. t11tor. A will which failE: to mention
or pro\"ide for a living child iR iooperati,· n~ to "ur h child. A
wido\\''s dower can not be cut off by \\'ill. A legatee or devi t' t' i·
not a competen t witnes to th execution of a will, nnl ss he reli n qnishes all benefit" thereunde r.

PENNS YLVA NIA.
BANKL G LAW.
(Revised by JOHN W. RYON, Attorney at Lmv, Pott ville.)
Any person or associatio n of person , not less than five, may establish banks of discount, deposit, and circulation , with a capital
of not less than $;)0,000 nor more than $1,000,00n. \Vhenever
a person or association desires to establish a bank,or increa e the capital, a certificate to that effect must be made for at least ix months
in at least three newspaper s, one published at the eat of governme nt
and the other two in the city or county where such a bank i located.
If a yaper is pnblished in German in the county, notice must
be given in that language. When a copy of this certificate containing the name, place of business, amount of capital stock, with the
number of shares into which the same shall be diTided, is certified
by the Attorney General, it is recorded after the manner of deeds,
and the Governor, upon a certified copy of such certificate being
produced before him, causes letters patent to be issued.
Every person or corporatio n to whom letters p atent may be
granted, is authorized to carry on busines for twenty year from the
date of patent. The Auditor General is required to report annually
to the legislature , within three days of the ommencem ent of the
se~sion, a summary of the condition of every incorporat ed bank,
with an abstract of the amount of bankin~ capital returned by
them. The capital stock of each bank is aivided into hares of
$50 each. It is the duty of every cashier to publish in the new2papers a statement giving the amount of a et and liabilities, circulation, deposits, gold and silver, with all evidences of d~bt, with
the personal and real property of the bu.nk; and i::-emi-annual reports are required. The Auditor General is to require quarterly
statements from cashiers of the condition of banks, and one of the
statements shall be made in November . Stockhold ers are individually liable for the notes issued by the bank. Under the general
laws a savings bank can invest in any good bonds or securities· but
nearly all savings banks have special charters, and the regulation s
as to invei::tments in them differ. By an act passed by the legi lature of 18"'9, and not yet published, the organizati on of savina11
banks is facilitated , and their manageme nt carefully controlled . ,.,

COM:\IER CIAL LAW.
Acknow1 ed~meut s of deeds of land in Pennsylva nia taken
els~where ,_may be madt; in the United States. before any Mayor or
Clnef Magi trate, or Officer of any town or city where the deed is
made, certified under tbe seal of such city or town, any Judge
of any court of record, any Judge of a Federal Court, under the
hand of the Judue an d ea] of the court, Commis ioner for Pennsylvania, any officer in any State authorized by laws of said State
to take acknowled gments, the authority to be proved by certificate
of Clerk of any court of record, under seal of court, or otary Public•
if made out of United States, any Amba ador and all p •rsons ex~
ercising public ministeria l functions appointed by United States
'
or Notaries Public.
Assignm ents ancl JnsolYen cy. A debtor may make a voluntary assigumen t in tru t for the benefit of all cred.Hors which
must be recorded in thirty clay . The a ' Signrnent does not 'relieve
the debtor from the debl. The a .:ign •emu ~t file bi inventory and
appraisem ent within thi rty day and nrn t file hi, accounts in the
Court of Common Plea , under who e direction he is, aud thereupon the court appoint an auditor to di tribute the fund to whom
all claims must be presented or they will not receive pirt of the
estate. Impri onment ha ' been aboli hed in ull civil actions
founded on any coutruct, expret.-' or implied, except iu proceedin gs
as for contempt, to cn force remedies, actions for fine or penalties
to marry, on money collected by public officer o;
or on promi
of any misconduc t or neglect in otlice or in any profe ional ~mployment. Thein olventlaw inca e · whcreimp risonmen tis till
permitted allow a per on to be di charged from pri ' on, but do not
relieve him from the debt. All pr '1'er<·11cy in <lccd of n~ ·igumcnt
for cred1toni ar Yohl.
Attachm ent. Prop rty of r id nt debtor may be attached
when d •btor i about tor 'move hi property out of the juri dictio~
of the court in which the uttachmen t i applied for, with intent to
defraud hi creditor ; wlJ n he ha prop ·rty which be fraudulent ly
conceal ; when he ha di pos •d of or is about to dh,po e of his
property. with int nt to defraud hi er ditor ; when he has fraudul utly _co~tracte d the c1e~t or incurred the obligation for which
the cla1m 1s made. In thlS attachmen t th creditor mu t make
aftidavit to prove the exi t nee of ad bt in excet::1s of $100, and one
or m_o!e of the ~ct of fraud specified, aud mu ·t give bond
cond1t10n ed that, 1fd,,fgfA-~ffr8rW'O'ecute hi action with effect and

UNIVERSITY OF WASHINGTON

B . . NETNG

D

OnL\IERCI LL W -PENNSYLVANIA.

to recov r a judgment again t the debtor, he hall pay to the
debtor nll legal co't and damage which the debtor may u tain by rea on of said attnchm nt. Attachment can al o be had
to 'eize anrl bold prop rty of non-re ident, and will be
di olved on entering $CCnrity. A J tendant may be arre ted
after nit brongbt, upon proof that h i about to remove his
property to defraud hi er ditors r ha done o. or that Im fraudulently on eal hi' property, or that he fraudul L'ntly contracted
the debt; be may be committed unle he pays the ckbt, or gives
security to do o within ixty days, or give bond' to take the
ttachment of defendant'' property
benefit of the insolvent law.
i.n the nature of au execution may is ue upon a judgment at any
time after judgment.
Bills of Ladins,:. A bill of lading ha b e n d fined by judicial
nutbority to b a written ncknowh,dgrnent signed hy the 1\Iaster
thnt he hn ' rec iYed th good' th ' rein de1-crihed from th shipp r
to be trarn,port l ou th ~ t nns therein ex.pres ed to the d, cribed
place of cl '::-ti nat ion, nnd tbere to be delivered to the consignee, or
part ie therein llesignarec1. Agarn, it ha , heen defined to be n formal
neknowleclgrncnt of the receipt of goods, and an engagement to
deliver them to the con 'ignee or bi clt'Slgn .
Collaterals. A pleclcre or pawn i a bailment of got ds, choses
in action, or s~ock ' by one person to another to ' ecnre the performan e of , ome legal oblig·ation. DeliYerY is essential to the creation
<)f the pl ' clge. Where th thing pledgerl ns collateral 'ecn1ity is
given up to the pledrrer the pletlge i defeated. ... pledgee ha au
implied power to sell the thing pledged after default by the µlcdg '-' r.
The pledgec mtty sell after th debr. become' due without judici,11
proces', bnt must fir-:t demand payment t f the debt. and give notice
of the time and place of al .
Corporations. Many co rporations in thi State were created
by spl'cial act' of ~-\.ssernl>ly. Before the adoption of tbe ue,y con titntion of 1874. the e-enernl practice was to get an net of the Legislature conferring corporate right . The act of April 29. 1874. passed to
carry out the provision ot'tlle new con ~titution . µrovilles for the
rncorporntion of companies for a great variety of pnrpose . Snch
corporations are divided mto two general cla,se -the first class,
corporarions nor for profit; the "Co11d class. corporation' for profit.
The chart er of &n intended corporation must be subscribed by
five or more pers nia:, three of whom at least must be citizens of
this Commonwealth, and ::-ball set fortll: p) The name of the corporation; (:Z) the purpose for \\'hich it is fonned: (;3) the place or
places where i t-. bnsine s is to be transacted: (➔) t~- et "rm for which
it i to exist; (5) the uamt':5 nud residence of the ' nb cribers and
the number of share i:-ub -ciibecl hy each: (.r>) the number of it
dir ctors and the n :1mes null re~idence of those who are cho en
dir ·ctors for the first year; (,) the amount of it caµital ~tock. if
any, aucl the number nnd par value of shares into which it i
divid d. Notice of the intention to apply for any ' nch charter
shall be in Prtec.l in t,,·o nen"paper of general cirenlatiou. printed
in the proper county, for tbree week ' , setting forth briefly the
character and object of the corporation to b, formed, and the
intention to mak, applicntion therefor. The certilicates of incorporation of the first elas hall be acknowledo-ed by at lea~t tbree
of those who snhscribe to them before the Recorder or Deeds of
the county in which the b Llsiues ' of the corporation i., to he transacted, to be their act and deed, and the Fame. being duly certified
nncler the hand nud official seal of tbe said Recorder of Deeds, sball
be presented to a law judge ot' tbe aid county, .lccompanied by
proof of the publication ot the notice of nch application, who is
hereby reqnired to pernse and examin e E-aid instrument, and if
the same shall he fonnd to be in the proper form and witbin the
purpose named in the fi.r::,t class. and 1:-ball appear lawful and not
injnrion to the commnu i ty, he shall indorse thereon tbe 'e facts,
aucl hall order and decree th 'reon that the charter is apprnved,
and thnt upon t he recording of th Hid charter and order the ub·
hall be a corporation ror the
scriber thereto and their as 0ciat<'
purpose therein stnted, wbich charter Phall be recorded in the
office for the recording of deeds in snid connty. 'l'he certjficate
for a corporation of the second clnss shall 'et forth, a is n quire d
by those of the tirst cla 8 , and ex eµt building and loan ns ociations
' hall al.,o Ptate that 10 per centnm o f the capital stock ha been
paid in en Ii to th, treasurer of the intended corporation, and the
aid certificate hall be
name and residence of such trensnrer.
aci-:nowledged by at least three of the snbscriber thereto before
the Record<. r of Deed ()f the county in which the chief operations
are to be carried on, or in which the principal office i ' situated, and
they shnll nJia:o make and sub"cribe an oath or afiinnation before
him, to be iudorsed on the snid certificate, that tne -:tatements
contained tlll'rein are true.
The said certificate, accompanied with proof of pnblication of
notice. a -i provided in orporation.., of the first cla,,. 8ba11 then be
produced to tb Governor of tliis Commonwealth, wbo sh all examine
the same, and if found i11 prnp r form and within the proYi-ion of
corporations or the second class he ball approve thereof and
iuclor bi~ approval the1\·on, and direct lei ter ' patent to issue in
t hen nnl form, incorporating tlw sub2criber · and th ir aR ociat s
and sncce sor into a body politic and corp orut , in deed and in
law. by the name chosen.
Thl' certificate shall be recorded in the office of th0 ecreta,y of
ommonwealth, in a book to be by him k ept for tbat pnrpo ' e,
th
and he 8ll!ll1 forthwith furnir--h to the Auditor General an abstract
therefrom, showing the nam e, location, amount of capital sto k,
ancl nam, and addres of the treasurer of ' U h corporation. The
"aid or iginal rcrtitictue, with all of its inclor~t:>menrs, shall then b
recorded in the file f r the r cordi ng of deed", in and for the
connty wh re th chit'f openitiorn:: are to be car ried on, nnd from
and sucthenceforth the sub criber ther to and their as ociat
ces or8 sliall he a corporarion, for the purpo es and upon the terms
namuu in aid charter.
ourt of Common Pleas in
Court . Tenns and Jurisdiction.
the everal conn ties hav" oricrinnl juri diction in all urns ov r $100.
Orphan ' Courts bave fnll probate power and ntire control of
rlecedent 'e tate_. Ju tice' jurisdiction, $:300. In Philad lphia
tbere nre fogi, trate~ npplying the place of Jn iices of the
Peace, but havino- civil jnri_,diction only to the amount of $100 .
D po . itions. In the conrt of comm on plen., a rul to take
to he r~ncl in evicl nee i of cour e
the clepo iliorn, of witue ·
and may be entered by either party ' lipulating at least five day '
notic, to the udver e party, 111 ng nt, or attorn - y of the tim and
1

635-

plac of takino- the .:t"tme when the depo ition are to be taken
within the count,, and ten day ' when the depo ition are to be·
taken beyond the·countv limit and within the tnte. The notice
the magi trate before whom such depomu ' t contain the name
._ itions will be rn.ken, or tht1t they will be takfn h fore some Ol!,e
comp tent to administer oaths and affirmation in Pennsylvtmrn
at orne pecifiecl place and b 1·tween certain bour' of a day nam~d.
Either party may, if not wishin g to attend. tran ~rnit interrogatone
to the macristrate or person authorized to take the depo 'iti on . who
hall pnt <=>the same and r duce the am-,ver~ to writing, and re turn
the ame with the depositions. Rule.5 to tnke the depositions of
nncient, infirm, ick, and away-aoin~ witnes e~ to be read in evidence may be entered in the ni;e anu upon the allocatur of a judge,.
\Yhich will be granted upon ' Llfilci nt au e shown by affidavit
tipulnting nch ren onable notice to the adver e party or attorn ey
a the l'Xi<Yencie~ of the ca e may require. If the \\ imes es whose
depositiois have been taken re.side " ·ithin the tate and within
forty mik of the plnce of trial, the depo~itions can not b e read
unle s the party offering th m shall ' atisfy the court that the
attendance o f th e witu esses can not be procured. A rule for u
commis'ion to anv other tate or Territorv of the United States, or
to any other foreign i.:otate, is of course, and· may be entered by either
party in the office of the prothonotary but the interrogatorie of
the npplica t mm:t be tiled iu the pro 'nonotary ·s office at the time,nnd written notice of the rnle and of the names of the commi ioners, qr their office title ' . togt ther " ·ith a copy of tbe interrogatories,
musr be sened on tbe ad\"ur e party, bis a~rent, or attorney at lea ~t
ten days before the commission can issue. in order that the adver e
party may file cros interrogatorie and nominat an additional
com mis ioner or commi " ioner if he deem it neceE ar y. 'fo
entitle deposition to be read tbcy mus t be certified, s aled, and
retnrned to the court from \Yhir h they issued within twenty clay~
after thee ecution of the P-ame.
Executions may be i sued as oon a judgment i obtained,
or at any time within five years. The writ of execution i made
returnable to the first .Monday of the following term; but it is the
duty of the Sheriff to make his Jeyy at once, and be may proceed to
sell personal property upon Ls: L1ay ' notice, and di tribute the
proceeds. 8tay of execution upon suits in Court can be taken, by
giving ecurity, or under claim of freehold, on all eums of $200
and under, six months· bet\\ een $200 and $500, nine months; over
500, twelYe month . In suit before Justices of the Peace on sums
between $5.33 and $20, three month ; bet ween $20 and $60 six
months; and over $60, twelve month . The tay i, computed from
the first clay of the term to \Yhich the action was commenced.
Exemptions. ~o homestead law. Real or peronal property
to the value of S:300, in addition to wearing apparel, Bibles, and
school- books, and a sewing m·1chine, are exempt, but the privileo-e
is per5onal only and can be waived at any time.
Intere t. The legal ratei ci:s:percent.; u uriousinterestcan
not be collected, and if paid may be recovered back, provided suit
is brought therefor within ' i:s: months after final payment of the
debt. Mo._ t of the saving banks are l>y special statute authorized
to loan money at higher rate ' of interest, but by act of 1878 all
banking companies are prohibited from taking more than ix per
cent. Commission m rchant' and agent may contract wit
partie ' outside the tate for 'even per cent. It i not usury for a
borrower to contrnct to pay the taxe upon the money lent, nor
to pay a reasonable attorney' fee in case nit i brought for its
collection. lntere t is due upon eYery debt from the time it
become cl ~e and payable. Tbe rate is the same on all debts,
whether secured by judgment or not.
Judgments bind all the intere t of defendant in real estate within the connty where the judgment wa ntered, and under the Act of
March 23, 1 7,, a verdict of a jury for a pecific um (unless a new
trial i granted) is also a lien on real estate. Lien xi ts for five
years, and may be continn cl by revival of the judgment. Ju tice s
judgments become lien by filing tran cripts in the Court of Common Pleas.
Limitation ~ of Suit . Contract, note', and in trument not
under seal, tre pas , detinue, replevin. six year ; action for tre'pas , to per on, two year ; for lander, oue year; judo·ments,
mortgage and sealed in trnment will be presumed to be paid after
twenty years, but this pre umptio n may be rebutted. Reviver:
AckJ?-owl~dgment, coupled w~th pr?mise to pay; promi e may be
u:r~plied if .ack1~ow(edgment 1s plam, e:s:pre's, and nothing to negative such 1rnpllcat10n.
l\Jarrie<l Women. BytheActofJnue3, 1 . ._ ,, it is enacted etc.
That h. reafte1: m~rriage hl~ll not be held to impo e any di ability
on, or mcapnc1ty rn, a married woman, as to the acquisition c1\\"TI~rship, pos 'ession. ~ontro~ us ,<?r disposition of property of any kind
many trade or busme rn which he may eno-aae or for nece~arie and for the use, enjoyment, and improve~eirt of her separate
estate. real and per onal or her right and power to make contracts
of any kind and to give ooligations, binding herself therefor · bnt
very m~niecl woman hall have !he same right to acquire hold,
po e s, lf?prove, c~ntrol. u .. e or d1spo~e of her property, real and
personal, m pos ee ton or expectancy m the same manner as if
she were afemme sol without the intervention of an, trn tee nnd
,vith_all the ri~_h ts and liabilities in~iden t th reto, except a herein
pronded, a 1f she were not marned. and prop rty t' eYery kind
owned acquired, or earned by a woman, befor e or during: h i· rnarr iao-e_. Rhall belong to hn and not to her hu band or hi, ·-er ditors:
Provided, howen:r, That a married woman ball haYe no pow r to
mortgage or convey ber real e tat e unle5 her husband join in such
mortgage or com·e.rance.
. The married. woman Property Act of June 3, 1 "7 extended the
r1ghts of IDf!-rned ."·omen far beyond any preYiou, act. The lnnguage of tln act 1s Y ry broad and wa caref nll, onsidered in the
Real E~tate ompany "· Roop 13l Pa. 496 whe·r it wa ~ held that
it unf~tterecl a woman to a limited e:s:tent only, and did not ch>the
he.r \\'.1th a geu~r~ l power to contract as af mme sole. It ,Ya there
aHi, 111 tile. oprn1on of the con rt: " Viewed in thi , light it unfetter"' a nHUTl d woman ... for three pnrpo ee, Yiz.: (a Wh re she engages in trade, or businee ; _(b) in the managem ~nt of h er epnrate
tate; and (c1 for nece- ._ anes. For any of th ... el urpo" , ' h may
bind h rs If and he r estate or bu in S ' by her contra ts and I luwe
n_o doubt may h1,~·fnlly confe a judgment. In emancipating rnarned wom~n to thP la_rg . ext nt, from the rnle of th common law,
and clothmg them w1t9rfi~fhljpff~mto contra t for man y purposes,

of

UNIVERSITY OF WASHINGTON

636

BA KI G A D OO}Il\'.lEROI.AL LAW - RHODE I LAND.

th ir re"pon .. ibilities are nece arily enlarged. and the old rul
which ignored their existence as a d1'"'tinct entity from their husbands. mu t ncce arily be n::,odified to the extent of their changed
relationP-. A married woman may now engage in business and
entt•r into contracts in regard to it, or the management of her separate estate a fully a" a f emme sole. This exten ion of ;1er p ower
nece~"arily invol...-e the right to uc, and the liability to be suecl :
and when 'he may be ued he may confe 1:, judgment. Iu other
woru.::. as to every contract which be is au horized to makP, her
right ' and re po11:sibilitie ~ are those of a femme sole; Provided,
howcYer, That nothing in thi act hall enable a mall'ied " 'o man to
become accommodation endor er, guarantor, or nrety for another. '
l\Iortgages are executed and acknowledged same as deed , and
ien inhere from time of recording except where given for purchase money, when the mortga~e i a lien from its date, if recorded
within sixty day . Chattel mortgages may be given on mining
property, lumber, petroleum, iron, and other article specified;
must be for not less than $500, and must be filed of record. The
"ien thu created continue one year, and must be revived within
•hi rty day of the expiration of that period, or it becomes void.
Notes and Bills of ExchangA. The Act of March 30, 1875,
s.llow days of grace on all bills of exchange, drafts, promissory
note ' , and other negotiable instruments, excepting sight biJls and
draft , and checks on banks or bankers, whether payable on presentation or upon some day or time subsequenL to the date uf isi:,ue.
Note , etc., falling due on a holiday are due the secular day preceding. Holidays are January 1, February 2Z, July 4, December
25, Good Friday, Decoration Day (May 30), and any day appointed
by Governor or President of the United States as a day of fasting,
thanksgiving or general cessation of business.
Suits may be commenced at any time. All writs of summons
are returnable on certain days set by rule of court (and which are
in most counties monthly) and in default of an appearance and
&ill.davit of defense judgment may be entered against defendant
generally in ten or fifteen days after service. A summons from a
Justice of the Peace is returnable on a day named therein, which
must not be less than five nor more than eight days after the date
of the writ, and must be served on the debtor at least four days
before the date fixed for the hearing of the case.
Taxes. Improved lands may be sold for taxes two years delin,quent, and "Unseated" lands may be sold for taxes delinquent
one year, and are redeemable within two years by payment of taxes
anrJ. costs and twenty-five per cent. thereon.
,vins. Every person of sound mind (married women excepted)
ma, dispose by will of his or her real estate, whether 8UCh estate
be held in fee simple or for the life or lives of any other person or
pHsons, and v,hetber in severalty, joint tf'nancy, or common, and
of his or her personal estate. Any married woman may dispose
ny her last will and testament of her separate property, real, p er sonal, or mixed, whether the same accrue to her befo1 e or during
coverture. Pmvidecl, That the suid last will and testament be
executed in 1he presence of two or more witnesses, neither of
\vhom ehall be her husband; and pro1:ided also, Tbat no will shall
be effectual un1esR the testator were, at the time of making the
same, of the age of twenty-one ears or upward, at which a~e the
tc,tator may dispose ol real as well as personal or mixed property,
if in other respe ts compeLent to make a will. Every will shall be
in writing, and nnless the person mnking the 1:1ame shall be pre
vented by the extremity of his la .. t s1ckneE1"' shall be signed by bim
at the end thereof, or by some person in his presence and by bi
e::s:press direction; and in all ca,es sha ll be proved hy t1rn oaths. or
affirmation' of two or more competent witnesFee, otherwit-e such
will shall be of no effect. Prol'id cl, That personal estate may be
bequeathed hy a 11 uncupative will, under the foll nving restrictions:
(1) Such will ball in all cases be made dming tbe last sickness of
the te tator. and in the house of bis habitation or dwe11ine:, or
where he bas 1 e.sidcd lor the pace of ten days or more next
before the maki.ng of 1:1uch will. except where such person shall be
snrpri ed by FickneFs, being froru his own house, and shall die
before retuming thereto; (2) "\'i"'here the sum or value bequeathed
shall exceed the sum of $100, it shall be proved that the testator,
at the time of prononncing the bequest. did bid tbe persons
pre ent, or ome one of tbem. to bPar witness that such was his
will, or to t hat eflect; and iu all cases the fon,going requisites shall
bP. proved 1>.\· two or more witncs, cs, who Wl're present at the time
of' making of such will. PJ'Ol'ided. That noLwithstan ing this act,
an)· :mariner b~ing; at Fca, or any Foldier being in actual military
service, may cl1spo e of his movable"I, wages, and personal estate ns
he might bave done bPforc the makincr <•f this act. All dcvi~ e of
real e tate shall pai-s the whole of the c~tate of the testator in the
pr,~mii-1e:-- devised. although there be no words of inheritance or of
perpetuity, nnles it appear hy a dcvL e over, or by word of limit t ion or otherwi. c in the will that the tcstatorin ended to devise
a _lt·'-S_estate. 'I'he real e,tate acquired hy n, testator after making
111-i will hall pa q by a general devise, unkss a contrary intention
be mauifef:lt on the face of the will. A devi e or bequest by R hu baocl to hi· wife of nny portion of hi e tnte or property ~hall be
deemed and taken t o be in lien an<l bar of her dower in the estate of
:-tl<'h te~tator, in like manner as if it were t-'O cxpre RE-din the will,
unle ~·uc h te-.;t•nor t-hall iu hL will <leclare otherwii:,;t•. Prorided,
'I'lrnt 1101Jiil1g herei n contained bull deprive the widow of her
choice, either of dower or of thee t,ate or propt•rty ~o devi ed or
b1 c1 u ·atbcd.

RHODE ISLAND.

(Rcvi ·ed 1Jy \V::11. G. Rr n, ~\ti rney nt Law, Woonsocket.)
There are nine of the e in titution,, all chart~red b fore National bank were creat d by 'ongr s , total capital, $1,766,685·
corporations'
bill in circulation, 3,13 . Bank , like all bu ine
re, under the con titution of Rhode Island hartercd by µecial
act pre ented to one legi lature, and, after public n otice, granted

by a succeeding legi lature. In most _charters now in force
is a provi ion making tockholders liable for all debt of
the bank. The leaislature, or the Governor, when the leaislature is not in ses8ion. may at any time appoint a special commi ion to examine one or more banks; and H th r e or more officer ,
stockholder or er ditor of a11y b nnk. make a written complaint,
the Governor shall appoint s uch a commi' ion. Bank~ nre not required to make public tat men ts of their condition, but mu" t report to the State Auditor on a day behveen ~ovember 1_5 and December 15 in each year, the day to be ~ubsequently de$t!!nated by
him. These reports are quite full, co 'Cring substantially what i
rep0rted by National banks. An abstract of all the rep<Wt!'- i'-pnblished by the State Auditor as soon as may be. There ar · uo restrictions to the class of bonds Savina bank may invest in. ee hap.
153, Sec . fiO, Public Statutes of R. I.

COl\I:MER IAL LA,'{.
Acknowledgm ents. (See Del'.dc .)
Actions and Suits. All actions and nit at law and. in equity
relating to realty must be brought in the county " ·here the land
lies; all other actions and suits, where plaintiff or defendant reside ,
or where defendant may be found. (. ee Titl e <..,ou1·ts.)
Assignments and Insolvency. There is no general insolvent
law. A ssignments for eqnal benefit of all creclitors are all°'Yed;
all preferences are void. Any resident debtor whose property, real
or personal, is attached may dissolve tl1e attachment by a general
assignment for the equal benefit of his reditor ' . One or more
creditors, representing, collectively, one-fifth in amount of all
claims against any debtor, may, within sixty days of any attachment of his property, or any transfer by him of property in the
way of preference, secnre the setting aside of such as~igmnent and
transfer and the appointment of a Receiver to convert the debtor's
property and assets into money, and distribute equally among all
creditors. 8uch proceedings do not entitle the debtor to a discharge, which is only obtained by actual release from each
creditor.
Attachment. Attachment proce::;s may pc L , u ecl from the
Common Pleas diYision of the Snpre111e Court, or any District
Court, whenever the plaintiff in tbe action to be commenced by
such writ, his agent or attorney, shall make afridaYit that the
plai111iff bas a just claim ngainst the clefendunt. "bicb is due, upon
which the plai1l'iff cxpecti:; to recoyer in such actlon a sum sufficient to givejnrisdictiou to the court in whiclJ ucb wri t is returnable. Personal property of the debtor (unlcs' i:;:ecured by bill of
exchange or negotiable promissory note). in the hands of any person, partnerslliµ, or corporation, is subject to gurni hmeut.
Corporations. No corp0ration to carry on tbe business of
insurance or bunking. no ba11k, savi11g.-1 bank, trnt-\t company, or
corporation tradi, gin bonds, noteEI. or other eYic1<,nces of indebtedness. shall be created except on 1ietitio11 to th General A-- emt)ly.
All kinds of corporntiuns may be l:reated by tbP Ge11eral ~\ssembly
uucter special charter. bnt corporation for bt1!--ines~ pnrposei:Z
except those kinds nboYe ennmenitcd, may he c,ea cd by means
of articles of association setting forth: (1) The c1greernent of any
three or more corporators to constitute a< orvoration; ct) :ramc by
which it shall be known; (.3) The 1,urpo-e for wb •ch con:-;titnted·:
(4) Place or places of its location; (5) lf it have a capital stock, tbl'
amonnt, whether common or pref'L>ned, and bow mu ch of each.
number of tsbares each person i8 10 rake. and par Yaln of 1<hures.
8ame articles to be siguecl by all lhe corporntor8. i tating ret-ide11c1'
of ca0b, aud same shall b e ackuow ledgl'd a!:\ (let•(l' of i·eal estate
arc req nired to be acknCJwledged, and tl1l'n shall be til (l in thv
office of the Secrc ary of St ntl'. Tl.le Secn' ta1 y of ~tate iS8lH'"I a
certificate nncler the E'cal of' the State "'hi cll !:'hall be eondusivt·
evitlcnce of the ex1e-tcncl' of such corporar10n. (Sce Pub. Laws,
Chi1p. 1200.)
Ail manufnctnring ancl eomc other l>ui--ineE>" corporation1:1 ar<'
Rubject to certain provi:-;ions of the tatnte~ . 11 nioug the mot--1
importunt of which is tbe l 1nbilit_y or ils rnemberR jointly and
Sl'verally (' ' limited to the i:-har-es of :-;u h rnl'mber:-; in uch corpor:,tions pnicl 11p to the par value tbcl'eof "l for nll the (lcbts and
contract' of the corporation until tbe wboll' amo1rnt of the capital
tock eball have been paid in and a certificate thereof, ig11ert and
8\\ om to by the t r e:-;ident, trensnr1..·r. and clerk. null by a mniorit,
of the director ', 8hall haYc been recorded in th' lltlice or the towi1
clerk of the town h1 which tlie mnnnfactory of the corporation i-establi--hed. Aftt•1· 1he making ancl n•corc1rng of :-;nch ·ertilicnk thv
storkho1dert-\ shall u1:--o be 11rnlcr tbe sanH· liability. nod al"'o · in mi
addition l amonnt 11p to, b11t not exct•tding, tbe par ,alue or ttwir
said !-<hares." uull'ss a ·erti.ficatc, signecl by n mHjol'ity of thl'
directors. trnly t-tating the amount of 1bt• capit nl tock actnalh
paid in, tbe valne. as la:-;t a ,ses l'd for n town rnx.. of the coq>onttiou't- real l'StatP, the Yc1l11e ol' iti:. pen501111l a~ cts arnl rlw amouut of
it:,; debt an<l liab1lities 011 tlw :3lt-t dn~· of Jkcemhl'l' of the yl'ar la t
prect•ding, :-;ball tw r 'c onll'cl nnuunll.v in 11ch to\\'n ckrk· o1lice
on or before the 15th clay of Febr11a1·)·. H11t ,r 1hi , a11111t 1 Cl'rtitica1t· bt' not o macle ancl filed by a majority of 1bc clir ctors or othei
ollicer..., of ' uch company. nny :-;1oclzltoltkr nrny <':Xetnpt him:--l'lf
~rom liability for it~< ch.11-1 iu couseqneuc of t-uch 1wglcct hy filing
nch 1own clerk s othl'l' ou or hdorc th 2.-)t b. day or th, samv
111
~ebr~iary, n trnc re1urn, nnckr oath, of the :-;itual ion of tlH• corporttt10n m the r'lam rnntter:-;, a:-; ne,nly as he cnn aseertaiu them or tn
filing in the . aid I fl.ice 11 Rtaterne11t n1Hler oath, lhnt u majo;'ity <if
tlw uir •ctor or 0ther ofticen.; of 11c h compmiy have b en n·que~k<l
by him to make the n•cnrn n•q1tirecl, and that they have rdt1t:-l'cl or
1wglected i:-o to <lo, arnl tbat t hl' ' LOckholder is 110t abll' to n11:1kc'
the r ·quir c1 r ·inrn; surh Htate nwnt tio mad ' by a 1:,tockholdcr arnl
:filed_ a aJ:oresaill_ :--bnll b' J?Ubli_i:;lwd in 80ll1°l' daily 11 •w.:pHper
pnbl1 b cl m ProvHlence, an 11f said corporation i located witlrnnt
Proviclenc(' 'onnty, in a IlC\\' pnpel' in th ' connty \\'b •re the corporat 100 i:-; locat 'd. l f a11y of tlw o11icer~ neglc r <1r refui::c to mnke
and r_ec_onl ~he_ lir1-t return of tl~t•. capital paid in, within tl-'n day~
aftt•r it 18 paH1 111, they ball be J0lll t ly and f'leverally liabl, for all
·ontrn t •cl after said ten clays arnl until the c rti:ficate i ,
cl •bt
record d. (1-'ub. iatnte . llap . 155; ec ai ... o hap.152, 'on 'titntion
I. I., Art. I , Pur. lbtttNRafNBmLaw s R. I., Chttpt r ' 108 and 1089.)
0

UNIVERSITY OF WASHINGTON

BAN KI G AND CO IMERCIAL LA WS-SOuTH CAROLINA.
Courts. Term and Juri diction. The npreme Court has fnll
equity powers . "rhe Judi iary ~\ct taking eff ect as law A11gu"t 22,
~\. D. 1 98 proYide ' for an ppellnte Divi ' ion of th ' uprem e
Court ancl al o for a Common PlenR divi ion thereof. ..le iom, of
ApJwllnte Divi ' ion are held ye rly ancl eYery year a follows, viz .:
In Providence ~ounty, four se._sious; in
wport and Wn hington
Counti -~, two e._ ~10n ca h. 'Th Common Pl as divi ion in
Provid nee onnty hold on contiuuon cs ion, commen cing on
the third t onclny in 'ept rnber nod ending on th third Monday
in th following Jnly; and in eac h of th other conn tie" it b ld fonr
~c~sion~ y nrly nncl every year. The A ppcllntc division ha, exclusive jnri~diction o r all nit and proceeding in equity to L._ue all
prcroguh'<' and all c:s:traorclinary wri ts ancl pro e se::: and of petition' for diver e nn<l alimon)' and petitions for a new trial in any
cnsc. Common Pleas dfrision hu original jurisd ction where the
clnim or demand exceeds three lrnndr d dollars. The State is
divided into twelve district , in eacli of which i a District Court,
having .in ri diction in ·ivil auses wb en the s um ued for doeE1 not
exceed $300. 'l'he Towu Council are Court or Probate within tl.teir
respective town , and the Municipal Conrt or Provid nee is the
Court of Probate of thitt city. Any town may, however, elect a
Probate Jndge at its anuual election.
Days of Grace. ( ee .Not es and Bills of E.rclwnge.)
Deed:s. No estate of inheritan ce or freehold can be conveyed
by deed nnl
the same be signed, seal •ct, and delivered by the
granter, and acknowledged b efore a senator, judge, jL1stice of the
peace, notary public , mayor or town clerk, and r ecorded in the
office of the town clerk where the land lies . Instruments relating
to lands within this .., tate, executed elsewhere in the United State ,
may be acknowledged before a judge, ju tice of the pence, notary
public, mayor, or before any commis ioner appointed by the Governor, and duly qualified thereunto. In foreign countrie~ before a
mini 'ter, con ul, vice-con ul, or commercial agent of the United
States, or any properly q unlified com mi sioner within such country.
No acknowl dgment reqnired by huRbm1d com"eying bis intert> t as
t 11:mt by the cnrtesy nor by wife conveying dower interest.
Depositions. Exe pt iu equitv cases any justice of the
Supreme Conrt. just-i~e or the peac , or J?-Otary p~1blic. may _t3:ke tJ?.e
depositions_ c~f any ,ntuest::._to b~ used_ 111 the _tnal of_any c1v1l smt,
action pt.>t1t1011 or proccedm_g. 111 wb1ch be 1s not mteres t.ed, nor
comu>~l. nor the attorney of either party, and which shall then be
comm need or pen din!.'; in this State, or in any oth r State or in
the Ui::,trict of Columb ia, or in any Terri tory, goYerument or
country.
Previous to the taking of ~rny d epo ition as aforeeaid within this
"tate 1he official authorized to take the ame hall. in all cases,
cauSL', the ad\'erse ])arty. or h1 R attorney of reco rd , to be notified of
the time nnd pla e appointed for tak.ing such depo ition, so that he
may att net and put int rrogatoric' to th d ponent if h e think fit.
Depo ition tnken without tbi
tate to he U!-ed in the tribunals
thereof may b takf'n by uch person and in the manner and with
the fon{rnlit1e rcqnired by the law of tbe tate, Di trict of Columbia, Territory or country in which the ame :::hall be tak en.
EYd'Y p rsnn, befor e d cpo ' ing. Rhall be sworn to testify the troth,
the whole truth n.nd nothing but the truth, and ~• all .. nbscribe bi
name to such deposition in the presence of t he official before whom
tbe nme wa , taken.
The d po13ition sn t1\-en, 1<ball be retain ed by such magistrate,
officer or commis:::ioner, nutil be d eliyer the same with his own
hand to the court lor which it is taken, or shall, together with a
certificate of its bavmo· been duly taken , be, by said magi trate,
officer or commissioner, sealed up and directed to such court and
r eurn i{i so sealed nntil ope ned b y order of the court, or of ome
jm:t ice the reof, or b.v the clerk by the consent of the parties ; a~d
nny pcr ' on may b~ compelled to appear and de pos as afo~·esa~d
within thh, State, m the ame manner as to appear and tes tify rn
conrt.
In tructio ns for Takin9 D e;JOsitions. Tb. _m agis_trat~. offic~r,
or comm issiouer autbonzed to take depos1t1011 m b1 ~ notification to the ad ver e party. should ~tnte tbe time and place
appointed and the names of witne~ es to be examined, which
must be s~n-e d by a proper officer or by any impartic1l or dis intereste d p erson, wllo mu t n111k oath to hit:i r turn. Th e depositions wbL'll t.1ken. will b e returned under seal to the court in which
the ._ nit i p endimr, with a ce rtHicare indorsed hyt~1e m_agi trate, of
the contents and name of tl1e ease. The followmg 1 a form of
caption whi ·h may h~ appended t o each depo ition, or to the whole
when more than one 1s tnkeu.
Execution~. Execution if:sue after t wenty-four hour immed1ntely fol1 ,1 wing the entr)· of judgment; ret urnable thr e
mont l1 iifter dnte thereo f in Di strict ourr , and in Fix: months in
o t her courti:: · can only be t:it~iyecl by order of the court. There is no
redemption br property, old under exe ution. In default of goods
and chattel or r<'nl e ' tate on which to leYy, execution may i sue
all'ain t the bodv ol' th debtor in case where frnnd ts alleged, and
f~ r ecoYery of co::-ts in nctions of trespa s nnd ejectment.
Exemptions. No home tend law. Teces ary wearing apparel
f debtor and hi~ famil v; working tools of a d bt or, not exceeding

$200, incl u ding t he pnifessional -librn_ry of m1y_ pr~fe sional 1:rnn
111 actnnl prac tice, and household fnrrntur e nnd tanuly sto re $300,
are exempt from attachment and execution, ,, here the debtor i
n householder.
Inter st.. The legnl rate of int re ti s six p r cent., bnt any rate
of interc:::.t no-r .ed upon between thD parties mny he tnken. Hat<-'s
on jndrrme11ts, note8: or open acc.c unt ', ~tc., i8 Ri:s:. per re1~L unless
a different rate b e Rt1pnlntl'tl by the part1eR. l11tere~t hegmR to nm
on accom1tR from tbe expiration of stipnlnted term of credit, or ut
n time fixed by nR:1ge of trnlle.
Judgn1entl'I :ire not a lien on real estnte. Forl'ign jt~<lgmcuts are
1n·ovecl in accordance with Act of Cougre~~- Tilere 1s no statute
or rule of co111t on the "'n bject .
Litnitation · of ~n·ts . A.cconnti:-:, i:s: yenrs: simple promissory
out,,, i:s: year·; s aled in ·t rnments und j11dgme11t,\ twenty year.
An ornl promiRe nnd partial payment revive the debt.
l\Iarri_,cl ,vou1en. "l1hc property of a married woman i !lecnr .d
to lier _. •parntc m. ancl i not linblc for clehts ~f her bu::,hnnd. ~.he
rim trau ·net hu inc ni- ~1, trade a throngh rn_g1' and nnnrnrn d .
Tile rigilt of dower aud curtesy are fully pree · rved. Bond cxccu ted

by her is IE gal and binding.
~e may make any ~ontract w_hat~oeY r th 1.-am a , if i:;he were srngle and unmarri ed, and with tb.e
sarnJ rights ~md lia bilitie . Prop rty ecnred to her shall be liable
to attnchm nt and levy for her d ebts and liabilities unde r the ame
circnmstance:s and with the ocam effect as if il e had coutinued sole
anc.l unmarried. (.., ee De d .)
Mortgages must be executed in the same manner as :ieeds and
recorded [ ee ante]. No chattel mortgage i good again t purcha er or attaching creditor unless recorded, or the mortgagee has
po se ' Rion, or can prove actual notice.
Foreclosure is u -.nally enfo1 cc d b"\' sale under power in the mort 0 age, which in most , ase
enable , fhe m orrga!! e to ' ell sfter t en or twn1ty day 'notice the~eof pnbli bed in newspaper. after default. :Mortgage may b d1 Ncbmged by rel ease on the face of th rec rd , or npon original mortgage deed, or by separate deed ot discharge and release. , Pub.
Statute", hap. 1,6.)
otes and Bills of Exchange. No tatutory laws a to what
constitutes commercial paper. All bills of exchange drawn at
sight, due and payable within this tate, and in which there is not
a provision to the contrary, shall be allowed three days' grace. Any
person upon whom a bill of exchange or draft is drawn which requires acceptance, hall have nntil two o'clock in the afternoon of
the busines day next succeeding the first pre entation tbereof in
which to decide w be ther or not he will accept the same; provided,
however, that all bills of excbange or drafts which may be for cause·
held over one day. shall, when accepted, date from day of presentation. Legal holiday are July 4, Chri tmas, February 22 :May 30 (if
coming on unday, the day following), and any day of Fast,
"rhanksgiving, or Arbor day appointed by authority. IPdors e of
commercial paper ar held on notic from notary pubJic, in accorda11ce \Yith the usage of m erchtmts, our tatutes in no way regulating it.
Taxes are a lien on real estate, and land may be sold for taxe
delinquent after due notice given. Owner, or his heirs or asstgns,
may redeem within one year by paying purchase money with
twenty per cent. in addition.
Will . All wills of lands, tenements . and hereditaments, and
beqne ' ts of perflonal estate. shall b in writin o· and signed by the
pitrly deviF-ing nnd beqneathin~ the same, or by ome person in hi
presence and by his expre::: airection: and shall be atte ted and
' Ub cribed in his pre .. ence by at least two witnesse , or else shall
be Yoid and of no effect. No form of proof i N r equired, but the
sub-:cribing witn es es should appear at probate of the will , if
living in the /:.ltate. Non-reFidents may be executors of will .
Every person being upwards of eighteen y:enr of age may dispose
of per onal e fate . aud eYery p er6on of twenty-one ear or above
may d1 po e of real e'tate by la twill and t e tament. The will of
a married woman hall not impair the rights of her hn .cband upo n
her death. as tenant by the curtesy. Will" are recorded in the To\,·n.
Cl erk'~ office of the town \\-here the testator liYed. ,Pub. Statute •
btlp. 1 2.)

SOUTH CAROLINA.
BANKING LAW.
(Revised by J . N. NATH.A. s, Attorney at Law, Charleston.)
The 6th ection of Article 12 of the constitution provides as fo llow : The General As embly ~hall grant n_o charter. for banking
pmposes, nor renew any bank.mg corporat10n now m existence
except upon t-:i,e condition that the tockhold rs shall be liable t;
the amount of t heir re pectiYe share or share of tock in any such
banking institution, for all it debt aud liabilitie , upon note bill
or otherwise; and upon the fnrtl.it:r condition that no direct~r of
other orlicer of aid corporation shall borrow any money from said
corporation; and, if auy director or other officer shall be convicted
upon indictment of directly or indirectly ...-iolating this section he
shall be punished by fine or impri onment. at th di cretion of' the
Comt. The books, papers and account of all banks hall be
opened to inspection, under such regulation a may be prescribed
by law.
General Statutes, Part 1, Section 547, say : "The Comptroller
General sJ?.all collate the various statement in the monthly returns
made to h1111 by the banks, so as to pre'ent a comparative view of
all the itemA thereof, and shall publish the sawe in ome public
new paper, for g neral information. EYery bank failincr to make
such returns 'lJ.all forfeit to the use of the "tat , to be re~vered by
the Comptroller by action. $25 for each and eYery day neglect. '
Sectio_n 548 provides : '' The 'omptroller General shall at least
once m e very month, collect the accounts of tbe week ly tate of
th ir circulntion and sp-'cie, rendered by tbe irnveral banks of i s 'lie
in conformity with hrn·, and publish the sawe, o collected, in som~
newspap r.
And a11y bank, th officer whereof shall n g lect to transmit to
the Comptroller <, eneral nny 'ncb ncconnt nforesaid i:-ball fo1 fe1t
$100 for each and every day during ,Yhich the same '~ball be 1wC"lected, to be reco\"ered by a ·tion at tbe ~nit of the ~tate. '
ectio0n
?'19: '' It shall be the duty of the _Comµri oller Gener,tl, whe11eyer
1t Hppears that any b~11_k. or !11lY otlicer o f a bank , ha:; incnrred any
for1e1ture for uny otlic1al m1~co nd11ct, to cn1 1se ·u it To be hrouo-lit
n.gaiust snch hank or officer, by the Attor1 ev General r the 1-oli.cit~n· of the circuit il~ "hich ~n h bank it-- ' it~rnted, f'or the rec<1, ery
of the same. And 111 ease ile shall. flt nuy t1111e. hav0 cause to "'LISpect that a h lse or incorrect nc~onnt h,~s·lieen rendered to hirn by
any b imk heslrnll ban:' anthonty, aucl 1t sha ll behil'< ctnt,· to 1 , :tke
a per-onul exan i11ation >f the books of snch b.mk. in oi·<1er t" u~certnin th e trnth: and nny otlker 11f n ba111- who ~llal: refu:-:e to
submit the books of t:iuid b:mk to tile l'omptn,lln -.encrnl for . . 11 eh
e aminntiou shall be de<:>rned guilty of n mil'\dern nnor nncl bt> --ubject to tin and imprisonment, nt tb di::::cretion f 'the omt."
'l'bere are no h1wR re~trieting Sn.Ying~ _ha~1k - i~corpornted by the
. tate as to tb.e class ol bonc!s or secnnt1e"' m wb1ch they ma3 make
mve · tments.
f
. .
0 ngina 1 ram

UNIVERSITY OF WASHINGTON

8

BA.

KLt: rG AND CO}IME ROIAL LA\V1-: - OUTH DAI{OT A.

. . o irregularit y in complying with the provision of the General
Incorpora ting Act ball be held to vitiate any charter until proceedings to et a idc and annul the charter hall be instituted by
the tate, and all act done and contracts entered into shall bave
~ he same face and effect as if said irregularit y had not exi -ted.

CO)IMER CIAL LA ,Y.
Acknow ledgmen t . All deeds for the conveyanc e of real estate

must be igned and sealed by the grantor in the presence of two
witne se , and recorded within the county in which the land lies,
within forty days from the time of delivery or execution . Before
any deed or other instrumen t in writing can be recorded in the
proper office within the State. the execution thereof' shall first be
proved by the affidavit, iu writing, of a sub cribing witness to such
1ustrumen t, taken before ome officer within the State competen t
to admini ter an oath, or before a Commissi oner or Commissi oners
appointed by dedimus, issued from the Court of Common Pleas
of the county in which the instrumen t is to be recorded; or, if
taken without the limits of the State, and within the United States,
before a Commissi oner of Deeds of the State, or before a Clerk 01
a court of record, who shall certify the same under his official
seal, or before a Notary Public, who shall affix thereto his official
seal and accompan y the same with a certificate as to his official
,character from a Clerk of a court of record of the county in which
the affidavit is taken; or, if taken without the United States, before
.a Con ul or Vice-Cons ul of the United States of America. AJl
verificatio ns of plea 1ings, affida-vits, and proofs of claims made
before Notaries Public in other Rt.ates have tbe same force and effect
as if sworn to before a Commissio ner of Deeds, provided the
Notary shall use his official seal.
Assii:nm ents and Insolven cy. An embarrass ed debtor may
a~sign hi property for the benefit of creditors, who have the right
to appoint an agent or agents equal to the number of assignees.
Where none are appointed , assignee can act alone and must report
to creditors every three monthr:i. The compensa tion 01 assignee
.and agent is five per cent. for receiving, and two and a half per
cent. for payino- out money. The assignmen t of all his property by
.a debtor undet'arre st effects his discharge from such arrest. Only
the claims of creditors participati ng in dividends are affected by
these assignmen ts, and then only as to creditors who by the terms
of deeo are required to release. The debtor, however, can make no
preference s or priorities other than as to debts due the public
and to such creditors as shall release under the assignmen t, and
all transactio ns within ninety days before assignmen t, with a
view to give fraudulent preference to any creditor or creditors
}lre null and void.
Attachm ents will issue in an action arising on contract for the
rrecovery of money, or in an action for the wronglul conversion of
personal property, or for the recovery of prop1:rty, whether real or
personal, and damages for the wrongful conversion and detention
of personal property or in an action for injury done to either person
or property or against a corporatio n created by or under the lawi;
of any oth~r State, governme nt or country, or against a debtor
who bas absconded or concealed himself, or whenever any person
or corporatio n is about to remove any of his or its property from
the State. or has assigned. disposed of, or secreted, or is about
to as ign, dispose of,. or secrete any of his or _its pro:perty, with
intent to defraud creditors; the creditor, at the time of issmng the
summons, or at any time tberealter , may have the property 01
such debtor or corporatio n attached as a security for the satisfaction of such judo-ment as the creditor may recover. Proceedin gs
in ca e of attachmen t are prescribed by the Code. Garnishee
proce scan be bad in aid of attachmen t.
Corpora tions. All foreign corporatio ns must pay a license
fee of $100 to the Comptroll er General before they c~n tramact
bu iness in the State, and must baye Borne duly appornted agent
re ident in the tate upon whom legal process may be served.
Court . Terms and Jurisdictio n. Courts of Common Pleas
are held three times a year in each county, and have jurisdictio n
in all civil ca e not cognizable by the Trial Justices. There is a
Probate Court in each county, holding monthly sessions and posse ino- the usual powers. Justice's jurisdictio n, $100. Actions to
be triccl in the county where land lies, or in which the defendant
re ide .
Executio n may issue five days after the adjournme nt of each
Court, and are returnable ~vitbin six~y days. Stay is on}y _granted
on appeal given. Execution s may issue at any time w1thm three
year 1rom date of judgment. The Clerk shall not, without Bpecial
leave of the court, enter any judgment until the expiration of five
day after the court ha adjourned for the term.
Exempti ons. Home tead, $1,000. The homeste~d right can not
be waived or alienated. Per onal property exempt mclude household fnrnitnre, cart , wagon . ~a!ming implemen ts, and dome _tic
animals up to $500, and m addit10n thereto all neces ary wearmg
apparel. But 110 rio-ht of home tead shall exi t or be allowed in
any property, real or per 'onal, aliened or mortga~ed, by any per on
or per 'ou. whom ocver, a again1-1t the title or c1aim of the alienee
or mortga(Tee, or hi , her or their heir or a ~igns.
Int ere t. ,. o great r rate of interest t ban seven per cent. per
annum can he cbargecl npon any contract ari iug in the State,
except upon writren co11trnct ' , wherein, by exprer,s agr ement, a
rate of intcrer-t not exceediu<r eight ( ') per cei,t. may be charged.
Auy per ou or corporut ion reC<!i ving 1:1 great 'r rate of interc t
than ten per cent. ·hall not ouly forfeit the intere t, but al o
double the Rnm r •cei\ecl, to be collected hy a eparatc action or
allowed a. a counter-cl aim to any action brought to recover the
principal.
Jurlgmen tl4 arc a lien on land within the county for ten year
irom the time ot entry, which lien may be ext ·ncl d to other countie by :filiug tram~cript. and may be r •new 'd within three years o
a. to extend lien for ten :r ars more.
Limitati ons of . nits. Upon contracts not under seal, ealed
note or per '0nal bond, , 'ix year ; jndgment or cl crees of any
court and upou ealed in trurnent (ex ·cpt a above), twenty
year '; to recov r real property, ten year ; actions for libel, lan-

der, assault, battery, or fal e imprisonm ent, nnd action ~1pon a
statute for a forfeiture or penalty to the tate two y ars: action on
policie of in ' urnnce may be brought wi thin ix year , anything in
the policy to the contrary notwithsta nding.
Married Women. The real and per onal property of a married
woman, whether held by her at the time of her marriage or acquired thereafter , either by gift, grant, inheritanc e, de Yi e, purchase or otherwi 'e, i not subject to levy and ale for her husband's debts; and a married woman can bequeath, deYi ' e or convey
her eparate property in the same manner and to the ame extent
as if she were unmarried , except that be cannot become an
accommod ation endorst>r, guarantor, or surety, nor liable in any
way to an::,wer for the debt or default of another.
lUortgag es. All mortgages , whether of real e tate or chattels,
must be recorded within forty days. lortgages of realty arc foreclosed by ordinary suit of complaint and summons, and chattel
mortgages are enforced by mortgagee taking pos e ion of the
goods and Belling them. Different books must be provided by
Clerks and Regi ters of l\Iesne Con \'eyances of the everal counties, for the recordmg of chattel mortgages and mort~a_ges ou real
hattcl
estate. Rennnciat ion of dower by n. ma1 ricd minor va1id.
di be
may
sale
before
and
condition
of
breach
after
mortgages
charged by payment or tender of payment.
Notes and Bills of Exchang e. Bill of exchange and promissory notes, drawn in tbe usual form, are recognized as commercia l
paper. There is no law requiring the payment of commerci al paper
at a bank or other fixed place in the State. If drawn payable at sh1;ht
are entitled to days of grace. No protest is needed on an inlund bill
for less than $100. On all bills of exchange dra\rn on per ons re i:lent. within the United States, and without this State, ancl returned
protested, the damages on such protested bill hall be ten per
cent. on the sum dra'vvn for. On all bills drawn on person' re ident in any other part of North America or in the \Yest India
Islands, and protested. the damages shall be twelve and one-half
per cent. On all bills drawn on person in any other part of the
world, and protested, the damage shall be fifteen per cent. Paper
fallinir due on Sunday or legal hoJiday to be paid the next day
thereafter. Leo-al holidays are 1st of January, 22d of February,
4th of July. Christmas Day, Thanksgiv ing Day, and all general
election days.
Suits. All distinction s between actions at law and suits in
equity have been abolished, and the Code of Procedure is almost
identical with that of New York. Actions relating to real property or for the recovery of specific personal property are brought
within the county where the land or property is situated. In all
other cases in the county of the defendant 's residence: and, if
he resides out of the State, then in any county.
Taxes for State purposes are a lien from N ovcm ber 1 of each year,
and payable by 15th December of the following year. Immediat ely
upon the expiration of the time allowed by law for the payment of
taxes in any year, the County Treasnrer of each county shall
issue in the name of the State an execution again teach defanltin~
taxpayer in his county, under which sufficient personal or rea1
property shall be sold to pay said 1axes, the sheriff's deed under
such sale shall be primafac ie evidence of good title in the purchaser. No action for the recovery of land so sold shall be maintained unless brought within two years from date of said sale. All
land« not sold are forfeited to the State. The tax is in all cases a
first lien as against the estates of all deceased persons; of bankrupts
and insolvents : of all persons making assignmen ts for the benefit of
creditors; as against all trust estates; a again t all per ·oualty
had on chattel mortgage or pledge; as again tall personal property helcl in fraud of creditors, and as against all stocks in trade,
etc., of merchants and manufactu rers. But not as agairn;;;t lands,
mortgaged or conveyed, longer than the last year. Property mu t
be Jistecl for taxation between January 1 t and February 20th of
each year.
Wills. All wills of real and personal 1 roperty mmt be signed
by the testator or Fome one for him in his pret-:cnce and b_v his express request, and he attested and ~ubscribcd in tbe prei:-c nce of
tbe testat H' and of each other by three or mor' creclibl • witue .,es.
Exemplifi cations of wills reguliirly proved in foreign Conrt ' may
be admitted to probate on certificate of jndge of ' nch court.
1

SOUTH DAKO TA.

(ReviElcd by HoR ,

ER e

TEWAKr,

Attorney at Law, Pierre.)

Not le ' than three natural persons, one-third of whom hall be
resident of the uve, may form au as ociation for cc1nying on the
bui',iness of banking. Th y mu t enter into and ign articles of
association . An organizati on c rtificate which hall .,peciflcally
state (1) tbc name a . urned by the a ' ociation. not to be th
same as that of other bank in the tatc; (2) the plncc where the
bu ine 8 of di count and depo it arc carried on; (3) the amount
of capital tock, and tbc amount into which it shar . are to be
divided: (1) the name ' and place of rcRidcnce of the hareholders, ancl the nnmbcr of hare held by each of them; (5) th e
period atwbich nch bank shall commence and terminate bn ine,_l'l;
mu t be maclc under th ir hand ' and acknowled ged b fore a clerk
of Rome court of record. or otary Public. Thi ccrtili ate shall
be recorded in tlJe Rc·gi ter of Dred' ' office of th county wh re the
bank may be ' tal>li 'heel, an<l then tran mitted to th Secretary of
tate f or record.
pon fulfillin g the requirem nt , the a sociations hall baYe
power <1) to have corporate seal; (2) to have succc sion for
a period of twenty years, nnlcs dis oh· ,a or franchi 'e forfeited;
(3) to make contract ; (4) to sue and b e sued; (5) to elect
dir tor aml offi. crs; (6) to pre cribe by-law ; (7) to exercise
by it board of director uch incidental powers as arc nece ary to
carry on the busine of banking.
Original from

UNIVERSITY OF WASHINGTON

B

KING

ND COMMERCI L LA,

nch bankina a ociation have p wer to purcba e, hold, and convey real tate f r th following purpo-:e , and no orb er: (l I
uch
aq may b e u cc ary for its imm clinte accommodation in the transaction of bu in ' 8 ; (2) uch as t:lhnll be mortaag d to it in good
faith by way of ecnrity for d bts pr don ly contract d; (31
nch
as hall b 01weyed to it in good faith in a1 isfaction of debts previously contracted in the cotu 'e of it dealing ; (4) uch as it
shall purcha e nt snl under judgments, d ere or mortgag beld
by the a ociation, or hall pur ha e to cur debts du , to it; but
no such a so iation shall bold the Io,.: est-ion of any real e tate
uncler mortgage, or the title and poB e._ ion of any real ..,tate purchased to s cur tb debt <lne to it for a longer period than two year .
In towns of 500 inhabitant or le s, th e capital mu t be at least
$5,000, unle a pecial permit be gi\·en by the ecretary of ..,tate; in
rto wn of ov r 500 inhabitant and les than 1,000, the capital mu L
be at least $10,000: in town of over 2,000 inhabitants the capital
m 11st not b' le than 25.000. At lea~t 50 p r c nt. of the capital
stock mu._t b paid iu b fore the at-sociution shall b anthorized to
commence bn in ess, aud at lea t 10 per c nt. of remainder at the
•eu<l of each uccci>ding 6 months thf'r~nftcr.
bares of stock sbnll
be $100 1cb, and shnll be de med p rsona1 property. Banking
as-:ociations may b dis olved by Cir nit onrt upon their application. The capital to k m ay be increased or dimmitihcd npon an
application. and proper ho wing made to the 'ecretary of State ..
The director of no n' oci:ltion may emi-annu al ly declare a divideud of net profit , bnt nch al-l ocintion ball, 1Pforc the declaration of a diYidend, carry one-tenth part of it · net proli.t' of the
preceding half year to it' surplus fnnd until the 1mc shall
amount to 20 per cent. of it capital stock.
Every director mu ' t ,vn, in his own right, at lea t ten shares of
capital stock. No a. ocintion or member thereof shall, during the
tim e it hall continn ' it banking operation . withdraw or p ,rmit to
be withdrawn, either in the form of diYidend' or otb rwi 'e, any
portion of its capital.
At lea~t four report' showing re onrc
and liabilities nrn t be
nrncl each yrar to Public E:s:nminer. Special reports mu t be made
~t reque1,t of Public Examiner.
Th shareholders arc indiddnally re pon ibl , eqnally and ratably . and not one for the other. for nil contra ts, debts, and ' ngagcm 'n t ' of nch ..1s ociation made or 'ntcred into to th ext nt of tbe
amount of his stock therein at µnr Yalue, in addition to the amount
inY sted in and due on uch har .
Each a ocintion shall nt all time haYe on hand in available
f1md nn amount equal to 20 per cent of it deposits, one-half of
which may con ist of b~1lance due the ns -ociation from olYent
bank , and one-half ca hon hand.
0

COMMERCIAL LAW.
Acknowledg ments of deeds or in trumentf- within the State
may be made before a Ju~tice, Clerk of tbe ::,upreme Conrt or Notary Public, and within the judicial district county nbdivision, or
city for which the otficer was elecred or appointed, l)efore the
Judge or Clerk of any Court of Record, Mayor, Justice of the Peace,
Register of Deed', U. . Circuit or Districr Court Cornmis ioner, a
County (.)!erk or County Auditor. If without the State, before
any Judge or Clerk of a Court of' Record of the United tat es, or any
State or Territory, Notary Public or any other officer of the tate or
Territory where the acknowlPdgment is made, authorized by its
laws to take such proof or acknowledgment, or Commit< ioner of
Deeds appointed by the Governor of this tate. In foreign countries, before a Mini ter, Commissioner, Diplnmatic or Consular
Agent of the United tatcs, or a Judge or Notary Public of ' aid
country. Letters patent from the United 8tates and final Receiver's receipt from the United tates Land Offices may be recorded
without acknowledgment or further proof.
Assignments and Inso1vency. Insolvent debtor may in good
faith make assignment in trust for benefit of creditors which may
provide for any subsisting liability of the a signor, ·wbetber ab olute or contini;ent. Such a:-signment i subject to proYisions of
the code relati"ve to trn t' and fraudulent transfer . Any debtor
may make assignment without preference of creditors, but i not
relieved from 1inbili ty for any unpaid balance to hi, creditors.
Attachm.ent proces i;.sue at the time of granting the ummone or at any time aft r\\'ard in actions on contract. for the recovery of money only, or for wrongful conver ion of personal property,
again ta foreign corporation or non-resident defendant, or ·when
defendant has ab conded or con ·ealed himself, or ha aR igned,
di posed of, or ecreted hi pronerty, or is about to do so witb
intent to defraud creditors, or that the debt was incurred from
property obtained under fal e pretenses. Plaintiff must make
affidavit and furni h bond in not less than $250, nor more tha n
amount claim d in Circuit Conrt', and at lea t $50 and not exceeding $300 in Ju "tices' Courts. Real and per1sonal property.
deht , money , rredit ' and hank-note may be attached or levied
on under execution or attachm nt.
Chattel Iortgages mu t be filed in tbe office of tbe Register
of Deed in tbe connty in whicb the property is ituated. The
filing mu 't be r en wed the third year, at least thirty day befor
the expiration of that time. Tbc copy of tbe mort!!age and a
tHrPment of tbe amount of exi ting d0b c. verified hy affidavit, must
be filed anew nt that time. It mnst be signed by the mortgagor, in
tb c pre ence of two witn ' es, who mu Qt t3igrr tb same u witnesrns.
fay b e for eclo ed by adYerti.c ment and sold by -heriff.
Courts. Terms and Jurisdiction.
ircuit Court have exclu sive chanc ry and common law juri diction above $100, and where
title to real propPrty is concerned. 'ourts it twice a year in
nenrly all th countie . County Courts hold two terms a year. and
are alway open for bn in e "'· They have exclu 'i ve probate juri diction, and in countie"' of a population of 10,000, chi] jnrisdiction
concurrent with the i rcnit ourt to $1.000; in countie of a less
population, !10 . Ju tice juri ' diction, $100. Circuit and County
Conrts alf-io have concurrent juri diction with Ju tices' Courts
for Rum le than $100.
D pos ition may be taken when witne do e n ot re id in the
ro1rntywb r th actio11i bron~bt, ori abs nttberefrom:orwhen
from age, infirmity, or im pn onrn nt witne i ' unable to attend

- 'OUTH DAK01A .

639

court, itb r party may commence taking at any time after service,
and may be taken in the tat before Jud.Le or lerk of the upreme
ourt, or ircn1t Cour t: or before the Ju Lice of the Peace, N otary
Public, United State ' ircuit or District onrt, ommi ioner, or
any per 'on mpower d by pecial commission.
May be taken out of 1he Stat by a Judge. Ju ' tice or bancellor, or
lerk of any ourt of Record, ,Tustice of the Peace, Xotary Public,
Mayor of any city. a ommi sioner appointe l by the Governor to
take d po itions, or anv per on authorized by tbe pecial commi ion from any court of this 'tate. T he officer btfor " ·horn taken
mu._t not be intere ted, or relathe, or attornPy of either party.
Are taken upon notice, igned by attorney and the advers e party
given u:filcicnt tim e to travel to tbe place of taking by the u ual
route, and one day for preparation, exclusiYe of undar 1.nd day of
er-dee; and may be adjourned from day to day. :Muia-t be written
by the officer or in his presence by tbe \'itne ' , or orne di intere ted per -on, and ub cribed to by the witness. ·when taken must
be scaled up ndor:-ecl with title o the can e. naTUe of Offiler taking
the ame. and by him addre~ 'ed and tran~mitted to the clerk of the
court where action is pending; must be filed at least one da before
trial.
Exemptions. Hom estead; on acre if within a town plat and
160 acre if not, with hon e and appurtenances, '"5,000 in value.
Exemptio11 i ab olute except a to taxes, laborers' or mechanics'
wages or for phy icians' service ' , mechanic 'lien for work on the
homestead, property obtained under fal e preten es, and debts
created for the purcha c thereof. Personal property exempt,
$750 or an enumerated exemption in iieu thereof.
Executions is ue a of cour e at any time within five years
after judgment, and must be returned ·w ithin sixty days. Lands
levied on ueect not be apprai ed, but notice of sale munt be gfven.
Same pro-,i ion apply in Ju tices' Courts as to levy, etc .. on personal property. Tllere is no stay law. and execution can only be
stayed by order of th court for irregularity, by injunction, or by
appeal witb security given . Reale tate sold under executjon may
be redeemed withm one year.
GRrnishm.e nt. This remedy lie whene er attachment doe , but
applic~ only to Jn -tice ourt", upon nffid,n-it for it sho\\'ing irrdebtedne s, and that ..,ome pers,m or corporation within tbe count}~
where the a tion i brought ha' property, money. or credit in bis
bands or under bis co 1trol belongin~ to the delendant. Xo undertakiug i required. Property mus t be delivered and money paid into Conrt or nnde1taking given to the plaintiff, with one or more
suretie', that the amount \Yill be paid or the property forthcoming
a' the Conrt ma)~ direct.
Interest. Legal rate even per cent., but parties may contract
in writing for twelve per cent., except in the counties of Lawrence,
Pennington, and Custer, where tbe u u ry law does not apply
and any rate of interest may be charged as mtty be agreed upon.
U ury forfeits u uriou interest. Int ere ton open account runs
from date of la t item charged whether debit or credit. Leo-al
rate allowed ou judgment .
b
Jlldgments of court of record are alien on all real e'tate except
the home tead for ten Jear from time uchjudgment i docketed
in the lerk's office of the county where the land i ituated, and
by having execution i sued every five year , are good for twen ty
years. In court of r cord judgment may be obtained within thirty
days after ervice of summons and complaint; in Ju tice ' ourts,
four days, where no defen e i interposed.
Limitation s. Personal action.,, two year · on contracts or obligation • six year : on ealed iu 'truments and in real action
twenty year ; on judgments or decrees of any court, ten ye ,r.., .
'
Marri ed Wo1ne11 retain their own real and per onal property
and may make contract , sue and be ned as if cole. N eithe;
husband nor wife ha any interest in the property of the other .
Dower and curte y are abolished. l\Iarried women retai n the ame
legal existence and personality after as before marriage, and shall
receive the ame protection of all rights as a woman which her
husband does as a man, and ha the same right to sue in her own
name a her husband ha in hi .
lUortgages of realty mu t be in wi-iting, with the formalities
required in cas ot a grant of real e tate. Wife need not join
except in mortgage of homestead. If containing power of sale
may be foreclosed by advertisement ·without intervention of court:
Mortgagor has po e ion of the premise' during the year of redemption after sale.
Not sand Bills of ExchangP. TherP is no statutory law requiring that commercial paper bon.ld be made payable at a bank or
at any ot1ler specified place. Three day of grace allowed on all
bills of exchange or igb t dratt , whether foreign or domestic
and on all promi 'eory note , bill of exchano·e and draft or:
the face of which time is peci6.ed, and note on demand' for
payment of same. Acceptance mu t be in writina by the
drawee or an acceptor for honor. To hold indorser b the ins_trument _mu 't be. presented on the day of maturity' and notice of d1 honor g1Yen.
Damages are allmYed in favor of
holders for value on bill of exchange drawn or negotiated
within the State and protested for non-acceptance or non-payment. Apparent maturity of a non-int re t bearina iaht or
demand note i ten days after date. in addition tcf the time
required tor tr~n mi ion; on intere t-bearing note • one year
from date. Holidays are every unday, the 1 t of January, the 22d
of February, the 30th of May, the 4th of July tbe 25th o f December, every general elPction day, every day appointed bv the President of the United tates or by the Governor of the' tate for a
public fast, thanksgiving or holiday. If the 1st of January, 22d
of February, 4th of July or 25th of Dec mh r fall on unday
the l\Ionday following i a holiday. Bill and note falling due
on a holiday are deemed due and payable on the following day.
Suits. Actions in courts of record are commenced by erver of
summone: and 'erYice may be made by leaving copy with defendant in per on or by delivering a copy to a member of d efendant's
family (at the defendant's dwelling hon e) over the aae of 14 year .
or it defendant i~ non-r sident, by publication .
fi civil a tion ~
must be pro ecuted in the name of th real party in int re t.
T a xe. become due and payable on the first day of J anuary,
and delmquent on the fir t Ionday of l arch followina, and
draw twelve per cent. intere~t thereaft r until paid, the i;ter st
Original from

UNIVERSITY OF WASHINGTON

BA KI G A D 0 O~llIER OIAL LAW -TE

640

__..-being added on the fir t day. of each month. Lands are. o~d
after 1 t of -'-- ovember followmg, and ma_v be redeemed withm
two year, by payment of purcha e money and intere t at the
rate of fifteen per cent. per annum and all taxes subsequen tly
paid. Taxe become a lien on real property on ._ ovember 1 t
of each year if not paid before that time, and collectors may
proceed to enforce collection on and after J amrnry 1 t following
the levy, by di tre and sale.
Wills. Every person over the age of eighteen years, of sound
mind, may, by la,-t will, dispo e of all his or h er estate. real and peronal. A married woman may dispose of all her separate esta te by
"'ithout the consent of ht' r hu:::band. A wm must be subcribed at the end thereof by tbe testator him elf or some person
iu hL pre,-ence, and by hid direction mmt "'ub'cribe his name
thereto. The ·nbscriptio n must be made in the presence of the
attestmo- witnee es, or be acknowled ged by the t e tator to them, to
have be~n made by him, or by hi ' authority. The te ta tor mu 't
at the time declare to the attesting witne ses that it i his will.
'I'here mu r be two atte tino- witnr ses who must sign their name
at the encl of the will, at the testator's request nnd in his presence.
::Nuncupat ive wills are valid when the esta t e bequeathe d does
~Inst be proved by two witnesse . Tbe
not exceed in value $1,00
decedent must. at. the t ime of making, have been in military
-- ervice, in the field or at ea, or at the time in exp<'ctatio n of immediate death from an injury received the same day.

,,ill

1
).

TENNE SSEE.
BANKING LAW.
(R eTised by J. M:. DICKINSON, Attorney at Law, Nashville. )
All persons and partnershi ps paying taxes for the use of money,
as money dealers, may receive deposits, issue checks or bills of
exchange, or discount bills, notes, etc .. but shall not be allowed
to charge on bills a greater discount than legal interest and
exchange.
State banks may be chartered at any time in same manner as
other private corporatio ns, and, if they so choose, may con ple with the
usual banking business, a safe deposit and trust company. They may
do all acts usually performed by banks. except issue notes as currency· allow three per cent. interest on deposits, advance money on
real a'nd per onal property and sell same; and, if the safe deµosit
and trust feature is added, may take on deposit jewelry and other
valuables and guarantee the preservatio n and delivery of same;
guarantee the titles to real estate and the payment of bonds
; execute trusts of every descriptio n; and own a
and morto-ages
0
'fault and rent out boxes for the keeping of valuables. but shall
not be liable for loss by fire, theft, or other cause. Stockhold ers
not 1iable except for payment of stock subscribed by each.
Every six ~onths banks must publish a sratement of their condition. The ::;ecretary of State is made a Bank Examiner, and required to examine each bank quarterly and report to the Comptroller, and each bank is subject to legislative inspection . There is
no law regulating the class of bonds in which Savings banks may
invest.

COMMER CIAL LAW.
Acknowl edg-1nen ts within the State must be taken betore a
Judge, or Chairman or Clerk of a Uounty Court, or bis deputy, or a
Notary Public. In other States before any Judge or Clerk of a
Court or Record, Notary Public _or Commis::1io~e1: of Tenneese~.
The certifica e of a Notary Public or a Comm1ss1 0ner under his
•e1;1l of office is sufficient proof of his official character. The
certificate must be in the torm prescri1'ed by statute. In case
of acknowled gment by husband and wife, the privy examination of the wife is taken in addition. If made out of the United
State mu t be under seal before a Commissi oner of Tennessee ,
otary Public, or an Ambassad or, Minister or Consul of the
a.
United tate .
Adminis tration. Lett ers1 of admini tration are granted: 1. To
the huBband or widow; t. '1 0 the next of kin; :1. To lhe large t.
creditor; 4. To the pnb1ic anministra tor, if no one applies in six
months. All property, r eal or per onal, are assets for payment of
debt . Preferred debt arc, funeral expen es, expense of administratio u, and debt due the State.
o prefo insolvent law.
As-.ign1n ents anrt Insolven cy.
erence allowed. In ertion of ~nch clan ·e_ doe not render
a creneral as 'i(J'nment in valid, bnt th.at clan e 1 nugatory. General a r-licrnme~t mn1-<t be accompan ied by sworn schedule of a.set--· if 0not 1t i frandnlen t and void. A general ai,;:signment
or collu ion, _al~o mort11 ullifie.' all 'juclgment- i by con e !:-ion
ga~e-i of a portion of deb~or's propert_y made w1tht11 tl?ree
l assign1i 10 ntll . and in l'Ontcmpln t10n of mak11_1g a generahonght
or
ment, except tho e to , l'Clll'e the payment tor property
mouev Jo1111e<l or for necc%ary advancc•m ent to enable owner
of cr<Jp to m~tke and tve them; provid •d the lll trumvnt i.., execntecl at time of h11yin!.( the property or borrowini. ; the money 01·
he _m:id '; and fis:Ps
111 akin!! the contracc f'or :-:aid a1lvan<'~m ents to
1lie arnom1t. A~"'i!.(uee or trnKtee ent1tlecl to all assignors pro1wrty
nt
110 t exempt hy law, whether ame be included i1;1 H'.\.'-i!.;nme
from
charge
di
a
aH
ODemte
not
•
clo
or not. "uch a ·-.i gumeut
.
liahilitiP .
h·efl'n•ne.:t•s may be made h.\' n pt·cial H1-<'-'i!.!:11ment ol particular
,·alid :-ale in 1rn y mc·nt f
n----c•t 10 ..:l'e1m· sp •citied <:n•ditur!-'.
lJL" •e.·i --tillc? <.kl>L may be made.
Attachn wnt proce_s will i-- ·n · where the tlehtor rc~id<'>< out of
the ·ta te · is about to 1·c•mo\'e or ha:-- rem<ff<'cl ldm!-<Cl f or pro1>erty
frn 1;1 the' tale; h l.' rc•mov~d or. iR re1_novi11g ltimi--elf. J'r m th,
conntv privately; i. co11cealmg lmn elf, i--o tllat the ord1Ltll'y pro<·es'- 'J·r law can not be t--ervecl upon him; ahi,;condH or i aht--COlldiug or concealing him 1f or property; ha fmudulc11tly di1-<po ed

ESSEE.

of or is about fraudulent ly to di ~po e of bi prop rty; or when any
per on, liable for any debt, re iding ont of the "tate die, leavin0t
property in the tate. Attachme nt will al o is ue on demand not
due, in all the abo,,e ca e except the fir t; al o in above ca e at
suit of urety or accommod ation indor er on paper due and not
tate
due. When debtor and creditor are non-re.jde nt" of thi
and are resident of the ame tate. tbe creditor hall not attach
unle': the_property ha been fraudulent ly removed to evade process m then t.ate. Debt due and not clue owino- to the defendimt
and property ot the defendant of any kind in th~ hand of a third
per on, are ubject to garni hment. There i no impri onment for
debt on civil process.
Corp_orations . Prirnte corporatio n , for a variety of pnrpose',
e~1bracrng almost every indnsrry, may be formed under 'Ction
lo!ll et seq. M . .., V. Code by fiye or more p er ons oYer the ao-e of
t\\'enry-_one, copyii~g t?e form of ,charter adapted to the purpost and
appenclmg an application to the State of Tenne . ee for snch charter
and ac)rn<?wledgfng ~nd registermg the i-a:11e in the county "·here
the prrnc1pal otlice 1s to be snuatec1, and m th e office of t he ' ecretary of ~tate,_ancl ~hen registering in the ~aid county the certificate ofreg1 trat10n given by the ecretary of ·rate, and ELfac imile
of the State seal.
The name and capital _stock may ~e chano·cd, and new power ~
addetl_. b:r tbe Bo,ucl _of J?irectors ?opyrng the propo ed amendmen t,
and signm!! an t1ppl1cat10n then·for to the ' tnte of Tennc re •md
i:tcknowle dging and registering the same in the ~ame way as pro~·i~led
·
for charters.
" ue and be
to
be
shall
n
corpomno
such
of
po\\'ers
Tilt! ge neral
sued , to bave ancl use a common ecal, to hold. in nclrlHion to personal prop_erty, real estate nee ssary for corporate bnsine"s, and
real estate m paym~nt of debts. and to se!l realty for corporate purposes, an<.~ to _establ1eh by~law ·, etc., not mcon ~i tent with tt1 c Jaw
and ~onst1tut10~1. to uppornt officer~ and . aQ'~nt::-:, to dc'ignate name
of o~ce and ofiictrs and compensut 10n 01 officer~, to borrow money
and iRsne notes and scock upon corporate property, and ecnr
same by mortgage.
. A failnre to elect officer_ does _not dis oh-e the corporatio n, but
mcumbent s shall hold un t1l nppomt men Land qualificati on uf sncces or , and terms may be fixed by hy-laws, but not to exceed t\\'O
years. It nu~y. by by-l_aws, reg 1!late sub ·criptiun s and ti'ansf'cr or
stock, fix cap_ital to be mYested m the enterprise, and cliYii3ion into
shares, and tune for payment by ~ubscribers, and amount of c·1.IIR
and in case of failure of any stockhold er to pay hi nb criptim~ h~
may be sned.
There_m~y be firn or more directors elected in p rson or by proxy
by a maJor1ty of votes cast, each "hare r epre enting une vote~ 'l'bcy
sh_all keep a fnll and true record of p1:ocecdings, and pnt 0 i1
~:mnut, ~ annnal stateme11t of rece11?ts ~nd disbnr"em ents, subject to
mspect10n of stockb?lde rs. A rnaJonty_ shall con titute a q 110 r 11111 ~
ancl _s hall_ fill vacancies un~1l next election. Th e first board shall
consist ol the five or more mcorporat ors who obtained chartPt'.
The bool~s shall sho:v 1!amet- of tockholder s, a11ci interest and
amountE paid for snbscnpt10 ns, the transfer of stock by and to whom
'
and all other tran actions of int res t to Rtockbo der
Unpaid stock st~bscribed shall _be a fnnd for payin e;t of debt due
fro_m the_corpor at10n, and transfer of stocl, by snbecriber doe' not
re~ie_ve him fro~ p_ayment, unle l:l tran ·feree has paid all due on his
or1grnal sub cnpt1on.
'l'he co_rpo~atio~1 h1:1s no powers except those expressly giYcn, or
~1ece ' sanly implie_d from the natm:e of the bu inc~ , and b,· 110
~nferen~c may discount note or bills, deal in gold or silver coin,
issue eyiden~e of debts a_s currency, b11~ and sell agricultur al roducte, deal rn merchandi se, or en!!:age 111 any bm.-:ines outside of
the pu_ri:~oses of tile charter, except ~'· be uncler a charter expre~:--ly
anthonz111p; these nets., but ~orpornt1o ns l<~rrned for mnnnfactn ring
raw mater ml by 1:nnc?rnery mto usefnl Hrt1cl es, whether of wood or
metal, or a C?wb111at10n of them, may deal in article o mannfilctnrec1 and articles µroper ly connected therewith . Such corporatio n
are liable to the payment of pri\'ilege taxe a dealer.-.
All. such charters may be repealed or amen<1ed at any time. H
~my fnnclamen tal ~mendme nt be uot acceprecl by a vote repre~Pntmg more than halt of the stock the orporntion i-ball be liq nidat 'll.
If such amendrn~n t be _acceptect by the corporatio n ~aid corporati on
tock, not.
Rhnll ray any d1 . . entmg tockholcle r the value of hi
e~cee~ (11~ pnr, anc~ s hall al o pay on the_ Ratne ba i to persont- uncler
d1~a~1hty for their tock, but the chum of creditors hall tak
pnonty over them.
Al I 8t~ck in tbc corporat!C!n so formed i nbject to exec11 tion .
Tn_te1~t.1~~al fra1~d. m lmlrng .to C<;)Il11;Jl? n b ta~uially with the
cl~a1te1, 01 1t1 d~ce1 vmg the p11 bhc or rnclrnd ual , ctn· rs ion of fnrn1s
o_t the corporat10 n, thc_pay1_11_ent of di,:idcncl~ witho:it leaving tllltli~1~nt f_nncl-1 to meet lrnb1!1t1eR , ~ecprng fal c accounts, hy whi ,·h
rnJt~ry 1s sustamed, ancl the m_ak111g of a fal f';e report, and fraud:-\
snhJe_ct ~~osc c0n_ce~·uecl th crem to the pcnnlth'R or mh;dcmen uo/
and lrnb1lity to Ru1t for damage~' .
. Tbecharte rwill he forfeit d if the BonrJ of Director pmticipate d
m snch act>1.
"on-u-ersh all not opera! n~ adi , olntiou HPle1' all th, corporate
property has bel'n appropr1at cl tot ht• payme11t of cldH ....
AI_I :-\Ud1 corporat10 n::;, ho:-\e chart 'r' arl' tt•nninated ' hall cx:i~t
for live yca1 th •reaft er f'.,r the ptn·po~e of liq11itlati n onlv aucl
the managcn, of the bu ine s at. i he 11111e of ' 11th tlist-ol11licrn arc
tt11"tee:-\_ for the t1to ·khvkkr a " c1 creditors for the p11rpo e, of
·
1Iqnulat1on.
Courts. Tenns a;,d Jn;·isd1cfio11. Circuit 'onrtR bold three
term~ _annn8;11Y, and have gen 'ral common lnw jmi 'diction in all
Ca!-<'" 111volv111g _o ·L· r ~~O. _Chancery Court:-, l10lclin<r two term,
~rn1~1rn)lY: have_ lnll cqmty Jt~ri~cliction above $GO, untl concurren t
~he Circ_1~1t Conn o{ nil civil can, es, except
Jlll'!sd1ct!o~1.
to p i~on, 1no1>erty. or character, iinolvino111.1u11e:-101
act1_on-.._
unl!qn1d1ttecl c~amag '1-<. ,J11-i.tic •1-1 or the Peace have jmistlictio n i~
equity up to $>0; 011 nil nn!:-ettlctl account'°', ohli~ationR coutrnct
ct'_-, _to. 11 ncl f\ir re~~very of R.ro1wrty, antl for clama'~e , xcept
fot lihl I a11tl 1:3Jn11cle!, up ro !ft;.)00; 11p1m all note~ nnd lll)Oll indor:--enwnt. of rn•~·ot rnble pnper where demand und notice are
expre:-,~ly wnivcd lll th· in..;tl'llmeu t, np tu $1,000.

n

k

":it~~ ~

n~<"<ls. U1~ti) regii-;tered, cl ed. nre not goocl, except between
partte~ and pnv1e.. Lund held hy nmegi~ter ed <leects are ubject
to d ebt. of both vendor and vemlec. Wife 11111 ' t join in deed to
convey homesread .
Original from

UNIVERSITY OF WASHINGTON

B

KI G AND COJ\Il\IERCIAL LAWS-TEXAS.

D positions . Evict nee may be taken by depo ition in civil
actions by either pnrt .
(1.) \Vhen the witne._ from age, bodily infirmity, or other cau e
i incapabl of attending to give te ticnony at the trial. (2. ) \Vh ~
h re id ~ out of the ' tate. (3.) When he re ide in the tate, but
not_ wit hiu the limits or tbe connty ~n which _the snit is pending, in
which case the ad verse party may, if be de ire to have the witnes '
examined in open court, ause him to be ubpoened. (4.) \\ hen
he i' under the nece ity of leavino- the tate before the cau e i
tried, or even befor it i' at i ' ne. (5.) \Vb en he i about to leave
the county in which the uit i' pending, and will probably not
return unLil after the trial. (ti.) \Yhen he i the only witne ' s to a
material fact. (7.) Wb.en he is an officer or the United tates, an
officer of tbi
tate, or of any county in the State, the clerk of any
court of record other than that in which the suit i ' pending, a memb r of the General Assembly while in session, or clerk · or officer
thereof, a practicing phy iciau or attorney, a Jailer or keeper of a
publi0 pri 'OU in any county other than that in which the suit is
pending . ( .) When be is a notary public, whether a nit be peodrng or not; to be evidence bet,.,veen the s~1.me parties in any nit then
or ther aft r pending i:;hould the notary die or remove out of the
tate before tbe trial. (H.) When a suit is brought by a party in

fonna pauperis.

Female witnesses ca n not be compelled to attend in ciTil suits in
person, exc pt upon sufficient cau e and order of conrt therefor.
'I he depo ' ition of any per on residing m the county where the
suit i, pending may be.taken by either party, and said witne s may
be summoned at the tnal.
D epo' ition ' in ca 'S enumerated in above section 1, 4, 5, and 6
may be taken at any time after action brought upon such a notice
as a court of justice may order, or upon g1Ying five day 'notice
when depo ' itions are taken in the county where the nit is pending,
and "'hen taken out of the county for 50 mile', or under, five dar;
from 50 to 100 mile , ten days: 100 to ::?50 mile~, :fifteen daye; 250 to
500 mile , twenty day ; over 500 miles, thirty days. If within the
United tates, nnd we t of the Rocky Mountain , such a time as the
court or clerk may order, not exceeding forty days. In foreign countries, such time a the court or clerk may order.
erYice of notice may be made upon conn el of non-re ident
partie .
\Yhen the witnes es reside out of the tate or over 150 mile from
the place or trial, either party may take depo ition by filing interrogatories ,Yith the clerk, giYing the opposite party notice thereof,
,vho hall have ten day thereafter to file cros -interrogatories, to
which rebutting interrogatorie may then be put; at any time after
whi 11 the deposition may be taken niJon a cert':fied copy of the
interro'.!atories to be issued by the clerk.
Any person authorized to take dep osi tion is, while engaged in
the discharo·e of hi duties, vested ,Yith all the power ' of the court
to preserve order, prevent interruption, and control the conduct of
the parties in the examination of tbe witne .
The commissioner, having first sworn the witness according to
law should require th que ' tion to be reduced to writing befo1e
bei~g put, and tbeu read to the witness and hould take do,:ll his
.answer 111 writing, or cause the ~me to be done by the witness
himself a~ near a may be in the witnes ' own word '.
The d~positions, when complete, shall be enYe]oped together " ·ith
the commi ion, if any, and all d_oc~1ments which ~ay have been
d epo ed to, sealed, with the comn11ss10ner's name wntten ac~·os the
seal and directed to the clerk of the court where the can'-e is pendino- ~v,th the title of the cnuse indorsed thereon, and may be ent by
mail, expre s, <?r p~·ivat~ conveyance. I! e1~t by private conveyance
the per$On deliwnng _it shall make affidav~t ~efore the _clerk that
he received the deposition from the comm1 s10ner, that 1t has not
been ont of his po se ion, or opened by him, or while in his
po ession. .
.
..
Til e cornm1s8ioner, or p rson antbonzed to take depMit1on'l ha
power to i -::;ue snbpo na for witnesse". which may be served b _v the
sheriff or any constable; and the certificate of the commi sioner, or
person anthorized. that rbe witn s fail ~d to appear, together with
tbc r eturn of the officer, is p roof of the_ fact. .
.
Deposi iion may ~e taken by any Jn9-ge, Justice of the peace,
mavor or chief magistrate of a town <?r ~1ty, the clerk c_>f an y court,
or irny other person _prop rly co mm1~s10ned or appomtC;d br the
court or clerk, not bemg i1;1terested, oi counsel., or related _to_ either
of th parties wi thin tbe sixth degree, computmg by the civil law.
They may also b e taken b_Y any no\ary public of th~ and other
States, in the county in which he reside~,. and the certificate ~f the
notary shall how bis locality. Deposit10ns may be taken m all
cases pending before justices of _the peace, un~er _the same rules,
regulations, and restrictions a m case pendrng m the court of
record.
Executions may issue forthwith, and from Circuit Courts are
returnable to the succeeding term; from .Ju_ tice's ourts in thi~ty
day .
tay of eight month may be had m Jndg;ment_ of a Jnstice
by furni bing security . . Debtor has Lwo year m which to redeem
realty sold under execnt10n.
Exeinptions. Homeste_ad, $1,000. Personal property consJstiJ?-g
of hon ehold good , supplies, tool and stock, etc. , amountrng rn
all to about $1,200.
Iuterest. Legal rate, six per ce1:1t. Contract for more is void as
to exce , and an in trument showmg n ury on 1t face can not be
sued on.
Judgments. From court of record are a lien from date of rendition for one year on all lands then owned. by defendant, and on
after-acquired lands for one year after acqmrement.
Limitations of uit .. Upon bond , notes, account and contracts generally, six years; Judgmen~s or decree of courts of rE:cord
and other cases not expre sly pr?vided for, ten years. ~ ev1vor:
Acknowledgment, expre~s~d w1llmgnes to pay ~r prom1s_e ;_ part
a
ent not in it elf ufficient. All demandA agam t admm1strafo~nd executor !Du t be presented or ued ?n in two }:ears and
six months, if a resident, and three years und six months 1f a nonresident.
:Married Women can hold real and per onal property separate
from th hn band, and not liable f~>r his debts. Wi!1ow t_akes
dower in one-third of the land of which her husband died seized,
and where th hu band dies lute tat~ and without heus, she takes
his entire real estate ab olutely; nbJect, however, to the payment
41

641

of his debt . She takes all the i)er onalty if no children, but if
there are children, then a child's part only. Rents and proilts
of wife lands not subject to bu band · debt , nor can huab and·s life intere t in wife's land be sold during her life. The
hu band is not liable for the ante-nuptial debts of his wife, but his
marital rights do not o attach to her property as to defeat the
collection of ame. :Married women can not make power of
attorney to sell land.
Iechanics' Lieu. For one year upon any ground upon which a
hon e is constructed or repaired, or :fi.:s:tme , etc. , put in, in favor of
the person doing the work. Cover the lands of married women.
Benefit extends to any workman or furni 'her of material giving
notice to owner within 30 days 11fter the completion of building, or
his di charge, or the completion of hi contract. Railroad contractor. sub-contractor, furnisher of material, and eyery one who does
any valuable service, manual or profes ional, for railroad, shall
haYe lien for one year; if within 90 clay after work done or material furnished, written notice is giYen railroad comp any or owners.
No mortgag:e or contract with con truction company shall be superior to this lien.
I\Ierchants. Corporation are chartered to carry on the trade of
merchant , with no personal liability to stockholders.
Mortgages and deeds of tru t take effect a to thiTd parties only
from registration. Can be foreclo ed without intervention of court
when power of i::ale is conferred in the in trument. Chattel mortgages are good as to the contracting parties without registration,
but not as against purchasers without actual notice, and creditors .
It is a felony fo r maker of regi tered mortgage of per onal property
to dispose of same with purpose of depriving beneficiary of same.
Railroad can not make a mortgage which hall be superior to judgment for timber furnished. or ltt bor, or for damages done to persons or property in operation of road.
Notes and Bills of Exchange. Days of grace are not allowed
on bill of exchange payable at ight. Negotiable paper falling
due on January 1, Ju.ly 4, December .25, February 22, Good Friday,
Decoration Day, l\Iemorial Day, Labor Day (and when any of t hese
day fall on Sunday then the following l\Ionday to be flub tituted) ·
al o all county tate or .r ational election days or any duly appointed
day of fasting or thank giving, is due on the previous day, unless
such previous day is Sunday, in which case it i due on the Saturday preceding.
Taxe are a lien on the real e tate on which they are levied, and
as between vendor and vendee they are a lien from January 10th
of the year for which they are a sessed; as between the State,
county, city and the owner. they are a lien for ix years from
January 10th of year for which they accrned, after which they are
barred. Payable first Monday in October of the year they are
assessed. After fir t Tuesday in February following taxes beru·
interest, and distre
warrants are ts ued for collection. After
default to first l\Ionday of July of the following year bills are
filed in Chancery Court, and the property is sold.
tate tax is
45 cents on the $100. Countie may levy same amount for general
purposes. :Merchants pay 45 cent on each $100 of the average
capital in ve ted, and a privileged tax of 30 cent on each $100
worth of taxable property.
Wills. :Ko 1''ill can convey an e tate in lands unles ,vritten in
te tlltor' life time and igned by him, or by some per on in his
presence by hi dtre tio11, and sub cribed in his pre ence by two
witnes 'e at least, neither of whom i ' int ere ted in the devise of
aid laud ; but a paper writing purporting to be th wrn of the
decea ed person, written by him, havino- hi name subf'\cribed to it
or in erted in ome part of it, and founa after his death a mono- hi~
valuable papers, or lodged in the hands of another for rnfe-keepinoshall be good and ufficient to give and convey land , if the hanr
writing i generally known by bis acqnaintallces, and it i ~ prov ed
by at lea t three credible witnesses that they v rily believe the
writing, and that eyery part of it to be in his hand.
Every devise hall convey the entire e tate of the te tator in lands
unle s the contrary plainly appear from the context.
No nuncnpative will s~all be goo~ _where the estate exceeds $250,
unle s pro,;-ed by two w1tne se...,, disrntere ted, present at the making thereof, and nnle s orne of them were especially reque ted to
bear witne thereto by the te tator him elf, and unles it was
made in his la t ickne sin hi own habitation, dwelling house or
where h~ had bee_n previously _re iding ten days at least, except' he
be urpn ed by 1ckness on a JOnrney or from hon)e and dies with01:t _returning to hi d-n·elling,_ and uch will mu t be proved
wi~h:n ~ n:ionth of the m~kmg thereof, unless it were put in
"1'1t111g withm ten days, and it can not be proved until fourteen
day after death of te tator , nor until proces has issued to call in
the widow, or next of kin, or both, if conveniently to be found to
con_te ti!. No written will shall be revoked or altered by a nun'cupatwe will, except the same be reduced to writing in the life of the
te tator, and read over to him and approved, and unle the ame
be pro,ed to have been so done by at lea t two wimes e capable to
te tify at common law.
A marri d woman may di po e of any e tate in the execution of a
special power to that effect by will, and her signature should be
made ?r the will be a~k~10wledge~l by_ her in_ the presence of at least.
two witnesse1-1, sub cr1bmg the will with their name in the presence
of the testatiix.

TE.X AS.
BA KI G LAW.
(Revised by °WILLI.AM L. ~IcDON.ALD, Attorney at Law, Dalla .)
The constitution of 1876 says: " o corporate body shall hereafter be created, renewed or extended with banking or di counting
privileges." There is no pro vi ion of law for the official examination of tate bank~, nor a~e. uch bank required to make any public
statem ent of then· cond1t1on, or to make report to any State
official. A number of tate bank chartered befor the adoption of
this provi ion of the..ConstitJ1tion are still enga<Yed in business
ungina1 lrom
O

UNIVERSITY OF WASHINGTON

•

BANK[ G A D C01'InIERCIA L LAWS-TEX AS.

642

COM IERCIAL LAW.
Account., How ·u orn to. Open accounts should have attached
the affidavit of the plaintiff, his agent or attorney, to the effect
that such account L, within the knowledge of affiant, just and
true, that it i due, and that all just and lawful offsets, payments
and credits have been allowed. If made by agent or attorney, the
body of the affidavit should allege the fact. Affidavit prima facie
evidence in all commercial account ; not in case of isolated tran action based on special contract.
Acknowledgm ents of Instruments for Record may be made
without the State but within the united States, or Territorie8,
before Clerk of some court of record having a seal, Commissioner
of Deeds for Texas, Notary Public; without the United States,
before a :Minister, Commissioner, or Charge d'Affaires, Consul
General, Con ul,Vice-Consul, Commercial Agent, Vice-Commercia l
Agent, Deputy Consul, or Consular Agent of the United Statet-,
Notary Public; within the State, before a Clerk of the District
Court, a Judge or Clerk of the County Court, a otary Public.
Affidavits, within this State, may be made before a Clerk of the
District Court, or Judge or Clerk of the County Court, or a Notary
Public; without this State, and within the United l::Hates, before a
Clerk of a Court of Record having a seal, a Notary Public, Commis ioner of Deeds for '1 e:s:a1,1; witbout the United States, before a
Notary Public, :Minister, Commissioner or Cbarge cl' Affai res, Consul
General, Consul. Vice-Consul, Commercial Agent, Vice-Commercial
Agent, Deputy Consul, or Consular Agent of the United States.
Aliens who b ecome residents of Texas, and have declared thefr
intention to become citizens of the United States, have all tbe
property rights of citizens. Aliens who owned real estate prior to
July 11, 1891, bave the same property rights as are accorded to citizens of the United t-tates by the laws or treaties of the nation of
which the alien is a citizen; this is also the case as to lands
acquired since July 11, 1891, which ares tuated in an incorporated
or platted city, town, or village.
Aliens who are bona fide residents of Texas may, during their
residence. own lands tbe eame as citizens.
on-resident aliens who , since July 12, 1892, acquire land s not in
an incorporated or platted city, town, or village, must bona fide dispose of the t1ame witbin ten years from their acquisition; it this is
not done, ninety days notice is first given by tbe attorneys for the
State to the alien by registered letter, and then escheat proceedings
are instituted; tbe property would finally be sold and tbe net proceeds paid to the alien. Minor'> and lunatics bave ndditional 1ime.
Aliens may pass title at any time prior to the institution of the escheat suit.
The law expressly provide$ tbat it shall not prevent aliens from
acquiring and holding title to lands, or any interest therein, in th~
ordinary course of justice. nor from acquiring and enforcing liens,
or lending money upon real estate.
Appeals to the Supreme and Appellate Courts for delay, will
be affirmed, with ten per cent. on the amount in dispute, as damages, together with interest and costs.
Attachments issue, on bond in double amount of debt being
~ven, and affidavit of plaintiff: that defendant is justly indebted
to plaintiff, and the amount of the demand; that attachment is not
sued out for purpose of injuring or harassing defendant; that
plaintiff will probably lose bis debt unless such attachment is
issued; and stating, further, either of following grounds, that tbe
defendant (1.) Is not a resident of the State, or is a foreign corporation, or is acting as sucb. (2.) Is about to remove permanently out of tbe State, and has refused to pay or secure the debt
due the plaintiff. (3.) Secretes himself so that the ordinary process
of law can not be served on him. (4.) Has secreted his property
for the purpose o1 defrauding bis creditors. (5.) I s about to secrete his property or the purpose of defrauding bis creditors.
(6.) Is about to remove his property out of the State, without
leaving sufficient remaining for tbe payment of his debts. (7.) Is
about to remove his property, or a part thereof, out of tbe county
where the suit is brought, with intent to defraud his creditors.
(8.) Has disposed of bis property, in whole or in part, with intent
to defraud his creditors. (9.) Is abont to dispose of his property
with intent to defraud his creditors. (10.) Is about to convert his
property, or a part thereof, into money, for tbe purpose of placing
1t beyond tbe reach of his creditors. (11.) That tbe debt is due
for property obta.med under false pretenses. Suit for dalilages
growing out of attachment proceedings may be brought in any
county from wbicb the writ issued, or where tbe levy was made in
whole or in pa.rt. This gives the debtor the option of place of trial.
o attachment hall is ue until suit ha been instituted, but it may
is ' ne at the comm enc ment of the suit, or at any time during its
progrei- . It may issue before plaintiff's debt i due, but no final
judgment shall be rcndr:-1·ecl against defendant nntil the debt becomes
dne. The defendant may r plcvy property attached by giving bonds,
with t\\'o t-nreti •i,,, i11 double the amount of the debt, or double th,
value of the property replevinecl a e timated by the officers. The
priority of attachment liens exi.,t 11 at common law, excep t tbat a
levy on lancl mu . t be regist 1ed with the 1ounty Cl erk.
H 'd ts qf Gar11isll/11ent may al o is ue on application and
affidnit of plaintiff, hi agent or attomey, to persons owing defendant, or holding fleets of bi in possession, or corporations in which
the dt>feudant is a F-tockholder. If sued out before judgment, bond
in double amount or debt i required; if after judgment, no bond
uicl aflic1a\'it ·ball tate that th amount claim •cl i ju~t
required.
clue, alHl 1mpaid, a)l(l that ailiant doc not know of property of d femlaut in thi. State lia bl to ex ·cution ufficicnt to ati~fy tbe
claim. and that he ha"- reai--on to l.J liev the garni bee, nami11g him,
i ind bted to, 01 hai-- property or eff ·ct of the clcfendant, ancl that
th e garn!l-'hmcnt i. not nccl ont to i11,1nre <rami hee or clef •n dant.
Final jnd~m<·11t rnn~t be rcnclerecl again t def ndant before judgrn ,nt, can b, ha<l uuaini-t the garnit-hec. When d bt i not due
writ or garnibhm 11t can iA:ue only when \\ nt of attachm nt
ha lJ ,en L uecl; iu this ea e no bond i r 'quired for tbe ,._Tit of
c,aini--hrneut. In o-arn i bment as in atta.cbmeut, defendant may,
bej'ore jud(lmntf replevy whatever i garnisheed by filing bond
ureties, and may then make any defense which
V\. ith two good
the gurni bee could make in such suit.
ornmon carriers ar requir d when they reBill of Lading.
ceive ~oocL for tran 'POrtatio11 to giv 'th bipp r. "hen it i demanded, a bill of laciiD~ tating the quantity character, order, and con0

0

0

dition of the goods; and such good shall be deliYer din the rummer
provided by common law in like order and conclition to th e conignee tbe unavoidable wear an d tel:lr and deteri ration in due
course of transportation only xceµted. Liability as Ht common lnw
for damage . Penalty for refu;;:aJ to e:s:e II te uncl deli Yer bill of
lading is not lee, than 5 nor more tbnn .-oo. to be recovered by tbe
injured party in any Court having juri diction in the county wh ere
the wrong i done. Bill of lurli , g i 7nima tacie evidenc ol o,Yn ' rship of goods in transit by tbe con i 0 nee. · arriers cannot re trict
their liability by any ~eneral or pecial notice, or by in.,ertin()" exception in u bill of laaing; and thi rule it:i avplicd to a tLroughbill.
Chattel Mortgages, to be valid as to creditoni. and a to purcba ers without notice, mu t be accompanied by immediate delivery, followed by actual and continued change of posses ion of
property, unle s tbe same, or a true copy thereof, i .tiled in the
County Clerk's office of county where mortga_g or re icle or if
he is a non-resident of the tate, then in tbe county where tb e
prop erty is situated. Anrl all reservation1:1 of the title to chattels as security for tbe purchase money thereof (by a statute
which took effect ninety days from March 31, 1885) shall be
held to be chattel mortgages, and shall, when po session is delivered to the vendee, be void as to creditors and bona fide purchasers, unless su cb resenation be in writing, and filed as required of chattel mortgages. This statute destroys the effect of a
Uonditional Sale a!l security for purchase money. Mortgage~ are
held 10 be mere security for tbe debt, and must be enforced by sale
of property. either through a decree of foreclosure or power of sale
given in the mortgage; sale of property, upon death of mortgagor,
must be en forced tbrougb Probate Court. A certified copy of a
chattel mortgage is admisrnble in evidence in lien of the original
unless the execution of the original has been denied under oath
tb e pa1 ty sought to be c barged there hy; provided, sncb certified copy
shall he filed in tbe ca.:e before announcement of ready for trial.
Collaterals. Holder of claims as collateral ..:ecurity " ·bo fail
to use due diligence to collect is liable for loss. I ' not affected by
limitation agajnst the debt. After the death of tbe det tor tb
creditor may still collect the collaterals. :i nrety on principal deb t
is subrogated to ri ghts of creditor as to collaterals. lf, by neglio-ence
or design, the creditor 101:-es the collateral, tbc surety on tbe p~·incipal debt is to that extent discharged. Note pledged, s collateral can
be beld for no other dt' bt. Takrng collateral security does not extinguish original contra.ct.
Commercial Traveler. Commercial travele1s are not required to take out a license. Solicitors for books, maps, mu eries,
newspapers, and grave stones are exempt from tax.
Corporations. In suits by. Not required to prove corporate
existence, unless defendant deny same by sworn plea. Prin1te corporations for most general purposes of busiuess. except banking,
may be created under the provisions of tbe general law. Corporations can not be formed for an ordinary retail mercantile bnsin ,
except corporations where no person owns more than $500 of the
stock def'(igned for the benefit of tbe Farmers' Alliance, but can be
formed for a wholesale business. Corporations created outside of this
State desiring to transact bus mess in it are required, as a pre-requisite
thereto, to file with Secretary of State certified copy of its articles
of incorporation, accompanied by a fee, proportioned to their capital, of from $25 to $200.
Courts. Te'r ms arid J-urzsdiction. Federal Court, two terms
each year, at Dallas . Waco. Graham, Galveston, Tyler, Jefferson,
Brownsville, San Antonio, Austin, and El Paso; ordinary jurisdiction, where marte1 in dispute exceeds sum or value of $'2,000. The
State Courts are as follows: District Court, two terms each year,
generally: ilJ Harris county five; in Dallas county ix; in Galve ton
five; in Bexar six; in Tarrant 1:1ix; in Grayson three, and in :McLennan seven terms; jurisdiction exclusive as to land titles, and where
value or sum over $1,000, exclusive of interest; and concurrent
with County Court from $500 to $1 ,000. Dallas county and GalYe ton and Harris countif al ' O have Criminal Di!-<trict Courts. County
Court, four to eight terms a year, fixed by Commissioner·s Court of
particula1 county; jurisdiction exclnsiYe from $200 to $500. except in
a number of less populous counties, where its civil jurisdiction bas
been abolisbed-Jeavi1 1g it a Court of Probate only- and the
District Court bas juiisdiction instead. Justice's Court, term
each month; jurisdiction to $200. Clerks of ourts and Ju "tices
may require security for costs before is uing process, bu t shall
file and enter sui1. Civil cases may be app aled to the Courts of
Civil Appeals, of which tbne ar' fiye branches, and in certain ca es
a further appeal can l> e taken to tbe Supreme onrt.
Days of G1·ace. Three are sllowed on all l1il l of exchan ge and
promissory not e a . . ignablc or negotiable by law. Note payable
on demand is not entitl , d to days of grace. Wben a note i payable
so many months after dnte, the note will becorn' due on the day of
the month corre ponding with the dfly of the date; that i , if it be
dated on the tenth day of tb , month it will become due on the tenth,
to which tbe day of grace are to be add d. \Vb 11 a bill or note is
payable a certain number of day after date, dema11d, or ight, tbe
day of it date i exclud din ornputing time. Limitation doc not
commen e to run until the expiration of thr e full days after the day
of paym nt.
'd po ition may be taken. The
Depo itions. All witne
b taken by the advene party,
may
uit
a
to
party
a
depo ition of
ex pa/'te, and withou t notice. T o take the dep it ion of a11y oth r
witne , it i nece ary tbnt the oppo ite party, or his attorney of
record, ball be served with 11otice, tating narn and re id nee of
witne "' together with opy of int no_!:!'atories, five duy before the
commi ion will i sue. ln taking tb t stimony th officer will
mak e a caption. stating the nam of tbe case. the app arnnc and
re idenc of the witne , official title of the offi er, etc., as i 11 ·ual,
and after wearing the witucs , ,will proceed to take bis m1 vver to
parately,
evcral int rrogatories and cro s interrogatorie
th
which b ina written mu t b ·• '" orn to and ·ubscribed ' by the
witnes , to which fa t the officer must certify under his hand and
official al.
Executions from District and County Courts i ue after adjournment, and may, on application of successful party, issue
twenty days after judgment, if no supersedeas bond has been filed
and approved; from Ju tices' ourt, eleven days after judgment;
in all, upon plaintiff, his agent or attorney, making affidavit to
c rtain iacte., shall Osi!giieaf.fudmvith. No redemption of land sold

hy

UNIVERSITY OF WASHINGTON

BANKI GA D COMMERCIAL LAWS- UTAH.
under exe ut~on. The tim and pla e of making "ale of real estat
und r e. uL1on .,hall be adv rti ed by a notice ther of publi 'hed
once~ w 'Cl for three con cntive w ks immediate ly pr cedin<Y ucb
~l •, m ' Orne n w paper publi b d in the county where tbe l~nd is
~1tuated. _If non w~paper i publi ' h din said county, rd f ndant
m ex cut1011 r qu ts am of the 1 rk or Ju'tice, thre noti e'
shall be posted at three pu bli places in uid connty (one of whi b
mu ·t b th' ourt-bou ' do rJ fort wenty clays before day of ale.
Exempti ons. Bythecon titutionof l 76,thehom e teadofafa mily not in a town or city con i ts of two hundTed (200) acre of land
which muy be in one or more parcel , with improvem ents thereon'.
In a city,town or village it consi t of a lot or lot not to exceed $5 000
in value at the time of their d ignation as the homestead exclusive of improvem ents, provided the arne be used as a hom~ or as
a place to exerci_se the calling or bu ine sofa head of a f~mily.
The homestead 1 protected from forced sale or voluntary incumbrance except for taxe , or for the purcha e money or
for improv ments the~·eon, and in this last case, only ~hen
the work and maten_al a~e co~tracted for in writing, with
the con ent of the wife, given m same manner a required
in making a ale of homestead . In case of death of the hu band
the widow and children have one year's support from the e tate'
allowance therefor in no case to exceed $1,U00, and if the prop~
erty exempt by law does not exi t in kind, a sufficiency of
the e tale may be sold for ca h, to raise allowance for homestead, not to exceed $5,000. and for other exempt property not
to exceed $500. All household and kitchen furniture, all implements of hu bandry, all tools and apparatus belonging to any
trade or profes ion, all books, five milch-cow and calves, two
yoke of work oxen, two horse' and one wagon, one carriage or
bug<Yy, twenty hogs, twenty sheep, all provisions and forage on
hana for home consumpti on, cnrreut Wl:l<Ye for per onal ervices,
and sundry other article , are also exempt. And to every citizen
not the head of a family one horse, bridle, and saddle; all wearingapparel; any lot or Jots in a cemetery for epul tnr ; all tools, apparatus, aud book..., belonging to his trade, profes ion, or private library.
Current wa<Yes for personal service are not subject to garni hment.
Arti les otherwise exern pt may be mide subj ct to Yalid liens.
Futures, Dealings in, with no intention of actual delivery
made a misdemea nor.
'
. Insolven t and Assignm ent Laws. A general assignmen t, by
msolvent debtor, must be recorded; have annexed an inventory,
under oath, of all creditors: their residence: sum, and con idera tion due each: how evidenced ; place created: collateral secUTities
held by creditors: with statement of debtor' entire e tate, giving
value , but inventory, tc., doe not have to accompany the a ' Signment; their ab ence is an informalit y which may be upplied at any
time. The ab ence of inv ntory is prima tacie evidence of the
withholdin g of a part of th estate from the
ignee by the debtor,
unl ss, upon r que ' t, he supply the defect. Whenever the assignee
ha nftici nt fund of tb estate in hi bands to pay the per cent.
of the debt due by th assignor h i' req uir d to make di tribution among tbe credi tor entitled. The assignee is entitled to
r a enable compen~at iou for seryices, co ts, expem:es and attorne 's fees, to be fixed in ca e of dispute by the District or County
Court. 'rh a sign e must file a final report under oath with County
Clerk.
ny action again t the a sign e. by reason of anything
shown by such report, must be brought within one year from the
filing of aid report. Insolvent debtors may make assignmen ts for
benefit of such creditors only as will accept their pro rata in di charge of all liability; provided, the creditor receive as much a onethi1·d of the amount due him. All members of a partner hip firm
mu t execute the instrumen t. Any creditor having reason to believe
such debtor has concealed his property, may have him summoned
before District or County Judge, and examined under oath, etc. Any
attempted preference of one or more creditors shall be deemed
fraudulen t and without effect. Concealm ent by debtor of his property from assignee, or transfer of property previous to and in contemplatio n of as ignment, with intent to defraud creditors, is
made a felony. The as ignee must within 30 days after hi appointment give notice of same by publicatio n in newspaper for three
weeks, and, as far as be can, by personal notice, or by mail to each
of the creditor of said debtor, and creditors con enting to the assignment mu t file their coo ent in writing- with the assie-nee v, ithin
four months after publicatio n of notice of his appointme nt; and
within ix months from date of first publicatio n of uch notice must
file with the assignee a statement of amount and nature of claim,
with affidavit that it is true, that the debt i just and that there are
no credit or off ets that should be aJ lowed against the claim except
as shown by the statement . Failure to comply with above precludes him from taking under the a ignment. An insolvent
debtor may, if he de ires, in tead of makin~ a general assignmen t
without pref rences, make a trn t deed with preference s, or otherwise pav or 'ecnre certain of his creditors.
Interest . Legal, six per cent: conventio nal up to ten per
cent. Open accounts, no rate agreed upon, legal interest from January 1st thereafter . Judgment s bear rate stipulated in contract
sued upon, and six per cent. when none tipulated for. U ury
forfeits all intere t. \Yhere u uriou interest bas b en paid, double
the amount may be recovered by ._nit within two year._.
Judgme nt Lien. In Federal, District, County and Justice Courts
a judgment i a lien on debtor's real e tate in any county where
an abstrnct of judgment shall be filed and recorded in a book kept
for that purpo e, in the office of County Court Clerk and properly
indexed in the name of each plaintiff and defendant . Lien takes
effect from date record and index of ab tract, and continues for
ten years, unless plaintiff fails to have execution i sued within
twelve month after jnd<Yment. A tran fer of a judgment when
acknowl dged, ae required for deeds, filed with the Clerk of Court
in which recovered and by him noted in th e minute book of the
Court, is constructi ve notice to, and valid and binding on all persons ubseq uently dealing with reference to the cause of action or
judgment .
Limitati on to Suit . Written contract . four ye&J:s; accounts,
other than op n account between merchant and merchant, their
factor! and agent , two year . : Mortgage lien barred with the debt,
nnle power of ale i gi ven in mortgage, but new promise which
revive d bt, and which must be in writing, revives mort~age.
Limitation must b' pl 'aded.

a'

643

Married Wo1nen can not bind themselvc , nor their separate
estate by making, drawing, accepting, or indor ing negotiable instrument . Her- eparate e tate is not liable for husbands debts;
nor for her own contract except for expen es incurred for its benefit, or for neces arie for her elf and children. Property owned
by wife before marriage or acquil'ed afterwards by gift devise, or
de cent. remains her eparate property. That acq nired after marriage, exce:pt as above, or by sale or exchange of eparate property,
is commumt y property, as is also the increase of any of the wife's
separate property, as rents, crops, increase of cattle, iLTerest on
notes, etc. A married woman can not contract as a partn r in
bu iness, nor embark her eparate mean in trade.
Notes and Bills of Exchang e. Commerci al paper is anything
that i recognized a such by the law merchant, and it i not required
that it hall be payable at a bank or any fixed place in the State.
Unle s otherwi e provided in the paper, it will be con idered payable
at the residence of the maker or acceptor, or other person bound.
The liability of any drawer or indorser may be fixed by in tituting
suit again t the acceptor or maker. before first term of Di trict or
County Court, to which suit can be brought, or before second term,
showing good cause why not brought at fi.Tst term; within jmisdiction of Ju tice, suit mu t be brought within sixty days. Protest:
Such liability may also be fixed by protest, according to the custom
of merchants . The holder of a prote ted draft or bill, drawn by a
merchant in this State, upon his agent or factor withont the State
may recover ten per cent. damages thereon, besides interest ana1
co ts. Days of grace (three) allowed on all negotiable instrumen ts,
except paper payable on demand. Attorn y's fee may be stipulated fo r in note and recovered in ca e of suit.
The legal holidays in Texas are: January 1, February 22, March 2,
April 21, July 4, D~ember 25 · all day appointed by the President of
the United State , or by the Governor of Texas, as day of fasting or
thanksgivi ng; and every day on which an election i held throughout the State. All such days hall be considered as unday, for all
purpo es regarding the presenting , for payment or acceptunce , of
negotiable paper, and of prot stiu~ and giving notice of non-payment or non-accep rance. If any of the days named shall occur on
Sunday, the next day thereafter shall be observed as a holiday; but
negotiable paper may be present ed for payment or acceptance on
the aturday preceding such holiday. Paper falling due on Sunday,
or one of said holidays, must be presented for payment or acceptance on the atnrday preceding such holiday. When third day of
grace fall on Sunday or a legal holiday the paper i due on the
pr ceding day.
Private eal . Abolished February 2, 1858, except as to pri-vate
corporatio ns.
Protest. The holder of any bill of exchange or promis ory
note, as ignable or negotiable by the law mer hant, may also secure
and fix the liability of any drawer or endorser f such bill of exchange or promissory note for th payment th reof, without suit
against the acceptor, drawer. or maker, by procuring such bill or
note to be regularly protested by a notary public for non-accep tance
or non-payme nt. and giving notice of such prote8t to such drawer or
indon,er according to the u ag e and custom of merchant .
nits, Where brought. A defendant may be sued in the county
in which the contract sued on by its terms is to be performed , or in
county ot his re idence, at option of plaintLff. Thus a note, payable at Dallas, may be sued on in Dalla County, though defendant
reside in another county. Thi enable parties to concentra te their
collections .
Taxes. Non-re idents may pay State and county taxes to the
Comptroll er of the State, at Austin, on or before December 31st, next
after a sessment. Taxes are a lien upon land until paid. Taxes
become delinquen t, and forced collection s of same begin on and
after 1 t day of January next succeedin g the year for which they
are as es ed. Owner has two years within which to redeem land sold
for taxes, by paying to purcha er double the amount paid for the
land. All lands sold for taxes and bought in by the tate may be
redeemed by the owner by paying the amount of taxes for which
sold, and all co ts, with six per cent. inten st thereon, and all taxes
due since such 'ale, provided same be paid in one ear from May 2
1893, to date when the act of the Legislatur e took effect.
'
Wills. All adult person of sound mind may di po8e of their
property, real and personal, a they choose. A wm must be si<Yned
by the teE-tator him lf, or in hi presence, by hi direction ~rnd
unles ' wholly written by him elf, ._igned by two witnes s in hi~
presence. Applicatio n for the probate of a will must be made to
the ounty ourt of th proper county ,Yithin fonr year from the
date of the death of the person making it. Notice of applicatio n
mu"t b given ten days betore term of court. A will may be
proved by the affidavit in writing, taken in open ourt of on of
the subscribin g "itnesses. If all the witne es are noii-reside nts
of the county, or are unabl to attend tbe court, th will may be
proYe~ ?Y the testimony of on~ or more of t~c~ witn e es. taken by
depos111on. If none ot the witn e se are llvmo-, tb will may be
proved by the testimony of two witnesses to the handwriti ng of the
subscribin g witn e sos, and al o of the testator, if he wa able to
write. ,yhich ~r~of may be it~er by affidavit in op_en court, or by
deposition .
mt to contest will must be brought within four years
from the time it is admitted to probate: provided infants etc.
have a like tim after r moval of di ability. A will which ha' bee~
probated in another "tate or country can b probated here. A duly
certifi d copy of uch will may be filed and r corded, and have the
ame effect as the original will, if probated here. But th re must
be a regular applicatio n for probate, and the sam ma be conte ted
in tb sam manner as the original mi~bt have be n. Real estate
can not be devised by a nnncupati ve 'Will.

UTAH.
BANKING L
(Revi ed by

·w.

& BRADLEY, Attorneys at Law
alt Lake City.)
'

BENNETT, MAR~HALL

SECTION 1. Be it enacted by the Governor and Legi lative Assembly of the Territory of Utah: That any number of persons
not le s than six, t@Ag;Uinirllifoof whom shall be re idents of this

UNIVERSITY OF WASHINGTON

64:1

BA KI G AND COM IERO IAL L vVS- UTAH .

Territo ry, being ubscrib er to the stock of any contem \)lated bank
or savings in titution may he formed into a corpora tion for tLe
purpose of owning and maintai ning such bank or savings institution.
SEC. 2. That whenev er tock to the amoun t of at least one hundred thousan d dollars shall have been sub cribed, and twenty- five
per cent. in cash paid thereon to the trea urer appoint ed by said
subscri ber from among their numbel ', then such ubscrib ers,
either in person or by written proxy, after having receive d not less
than four days' notice from said treasure r of a meeLing for that
purpose , may meet and adopt article of associa tion, and may elect
from among their number not less than five director s, Provide d,
that in cities or towns having a populat ion of more than ten thousand inhabit ants and less than twenty thousan d, corpora tions may
be formed with a capital stock of at least :fifty thousan d dollars,d
and in cities or town having a populat ion of less thu.n ten thousan
1nhabit ant8, corpora tions may be formed with a capital stock of at
least twenty- five thousan d dollars.
SEC. 3. Said articles of associa tion shall set forth: 1, The fact
that the articles are entered into and the agreem ent subscri bed, to
enable such perrnns to avail themse lves of the privileg es of this
law; 2, The amount of capital stock and the number ot shares into
which the same is to be divided ; 3, The names and places of residence of the shareho lders, and the i. umber of shares held by each
ofthem ; 4, The numbe r and kind of officers to manage the affairs
of the compan y, and the names of tho~e for the :first year.
EC. 4. Each stockho lder shall persona lly subscri be to such
articles of associa tion his name, place of residen ce, and the number of shares of stock taken by him in such compan y; Provide d,
in case a person having duly paid the twenty- five per cent. reg uired
upon subscri ption, said articles may be signed by written proxy
or power of attorne y to that effect, and there shall be indorse d and
attache d to said articles so subserib ed, an affidavit made by any
of
three or more of the subscri bers named therein, before a judge ce
substan
in
forth
setting
public,
notary
or
record,
some court of
the amount of 8tock which has been subscri bed. and that twentyfive per cent. in cash has been paid thereon as aforesai d, and that
the subscri bers to said articles are persona lly known to them, and
that they believe such subscri bers are able to and will pay the
amount by them suuscri bed.
SEc. 5. The articles of associa tion formed in pursuan ce of the
foregoi ng section s shall be filed in the office 01 the Clerk of the
Probate Court \Or in the office of the Clerk of the Distric t Court),
who shall issue, under the seal of said court, a certifica te to the
effect that the articles of associa tion have been :filed in his oftice,
which certific ate, togethe r with a copy of the articles , mmit be
:filed in the office of the Secreta ry of the Territo ry, who shall issue
under tbe great seal of the Territor y, a certifica te of incorpo ration,
and thereup on the persons who have subscri bed said articles and
in
all persons who may from Lime to time l.lecome stockho lderd
name
the
by
te,
corpora
and
politic
body
u
be
said compan y, shall
stated in its articles of associa tion, and said corpora tion shall have
suc~e~power: 1, To _adopt and use a corpora~e seal; ~' 'r? have
1t 1s
unless
at10n,
orgamz
its
from
years
fitty
of
penod
a
tor
sion
assoof
articles
itA
of
ns
sooner dissolv ed accordi ng to the provisio
ciation, or by act of its shareho lders ovming two-thir ds of its stock,
or unle sits fraJJchise be~omes fo1 feited by some violatio n of lawd·
3 To make contrac ts; 4. To sue and be Rued. compla in and defen
i~ any court ot luw and equity as fully u.s natural persons ; 5, To elect
by its stockho lders. directorA from time to time, and by its board
of director s to appoint a preside nt, a \ice-pre sident, cashier, andsuch other oflicers as sh all -be p1 ovided for in its articles of associa
tion, define their duties. require bonds of them, and :fix the penalty
thereof . di!imh-s such officers or any of 1 hem at pleasur e, and appoint others ro till their places; 6, To prescrib e, by its board of director,:;, by-laws, not inconsi stent with !aw regulat ing the manner
in which its stock shall be tranfe1 red, its director s elected or appointed , its officers appoint ed, ~t~ _p roperty transfn ~ed, its general
busines s conduc ted aud the pr1v11eges granted to 1t by law exercised and enjoyed ; 7. To ex:ercise by its board of direnor s or duly
authori zed oflicers or agents, subject to law, all snch inciden tal
power al:! shall be necessa ry to carry on the busines s of bankin g by
discoun ting or negotia ting promiss ory notes, drafts, bills of exchange and other evidenc es of debt, by receivin g deposit s, by buying
and selling exchang e, coin and bullion , and by loaning on persona l
or real security .
EC. 6. Ban1dn g associa tions formed under this law shall also
have power to hold and convey real estl:lte for the following purpose , to-wit: 1, Such as shall be nece:-sary for its accomm odation
in
in the transac tion of it bu sine ~ ~ 2, Such as shall be mortgag ed as
good. faith by way or ecurity for aebts duly contra< ted; 3, Such tshall be coll\ eyed to it in sat,h;fa ction of debts previou sly contrac
ed in the conrse of it dealing ; -!, Such as it shall purcha eat sales
under j udgm<:nt 8, decrees or mortga ges held by the associa tion, or
shall purcha e to ecure debts due to it.
o a sociatio n ball be organiz ed under this law with a
' EC. 7.
capital tock of less than tweoty-:five thousan d dollars and as is
provide d m l!Ction 2 of thi act.
EC. 8. The capital tock of tha associa tion shall be divided into
shares of not to exceed one hundre d dollar each, nor less than :fifty
dollar. , and ball be de med to be persona l propert y, and ball be
tran f erred on the books of the a ociation in uch manner as may
be prescri bed by the by-law ' and article of the associa tion.
EC. 9. Every person becomi ng a barehol der by such t ran sfer,
shall, m proport ion to hi bare, Hucceed to all the rights and liabilities of the pr viou holder of ' aid hare , and no change hall be
made m the articles of the a sociatio n by which the rights. remedies or securiti of exiting creditor of the a sociatio n hall be
impaire d.
Ec.10. Atl a ttwenty -fivepe rcent.o fthecap ital tockofe very
associa tion formed under tbi law shall be paid in ca. h before it
shall be authori zed to comm nee bu ineAs, and thereaf ter the remainde r due thereon in in tallmen t of not le s than ten per cent.
monthl y until the full amount of the capital so ub cnbed hall
have been paid; Provide d, whenev er any harehol d r, or biR assigne e
fails to pay any in tallmen t of stock when the ame i require d as
provide d above, the dir ctors of uch a ociation may sell o much
of the otock of such deli11quent barebol der a may be nee s ary, at
public auction , after giving two week previou s notice tber of. in a
newspa per publi hed or of gen ral circulat ion in the county where
the as ociation is located , or if no new paper i publieh ed in the
city or county, then in an w paper publi hed neare t thereto , to

any person who will pay the highest price therefor , to he not le s than
and
0
the a mount tuen due thereon with the expen es of advertiisinobares
ent
delinqu
the
to
paid
be
shall
any,
if
,
Mle, and the exces
holder. If no person can be found who will buy such stock at the
amount due thereon to such a ociation , and the costs of ndv~rti ing
Lhe sale, then the a mount previou ly paid hall b forfeite d to the
associa tion, and such tock shall be old a the directo rs may orcler
within six months from the day of said forfeitu re, and if not sold•'
shall he deducte d from the capital tock of t he associa tion.
SEc.11. Any associa tion formed under this law may. l>y its articles of associa tion, provide for an increas e of it capital from time to
time as it may be deemed expedie nt, but in no ca e "hall the capital
stock of such associa tion be increase d to exceed one million dollar
and no increas e shall be valid until at lea t twenty- five per cen~
tum thereof shall be paid in and the balance shall be paid in the
same manner as is provide d in ' ectiun 10 of this act.
SEc. 12. Any a sociatio n formed under tbis Jaw may reduce its
capital by vote of its shareho lderi- owning two-thi rd of its capital
stock to any s um not below the amoun t require d, authori zing the
formati on of the corpora tion; P, ovided, the capital ._ hall ueyer be
reduced so as to in any way impair the security of its exi ' tin 0er
creditor s.
SEc. 13. At any meeting of the shareho lders each shareho lder
shall be tmtitl ed to one vote for each share of tock held by him.
Shareho lders may vote by proxy duly authori z din writing .
SEC. H. The oflicers named in tbe articles of a,.,80Ciu tion of
a
any compan y formed as provide d for herein, t:hall hold office for
1cd and
ele
rluly
are
s
1
snccesso
their
until
and
year
one
of
period
1
qualified in a manner provide d by its articles of associa tiou and
every officer of the corpora tion must own in hi own name at '1ea~t
five shares of the capital stock of the associa tion of which be i an
otticer.
SEC. 15. Any officer who ceases to be the owner of five share ot
stock, or ·who become s in any manner disqual ified , ehall thereby
vacate his office.
SEo. 16. A certified copy of the certifica te of incorpo ration under
Lhe hand and seal of the officer with whom the articles of a ociations are :filed as aforesaid, shall in all courts be deemed prirnaf acie
evidenc e of the legal exi8ten ce of such corpora tion.
appoint SEC. 17. Any va~a~cy o~ the board shall be :filled by
ed
appoint
o
director
any
and
s,
ment by the rema1m ng director
:shall hold his place until the next election .
SEC. 18. If from any cause an election for director s is not made
at the time appoint ed, the associa tion shall not for that cause be
dissolve d; but an election may be held on any subsequ ent day
thirty day'~ noti~e there?f having been first given in some news~
paper publlsh ed m the city, town or county m which the associa tion is located, or if no newspa per is publish ed in such city town
or county, surh notice shall be publish ed in the newspa per published nearest thereto.
SEC. 1~. If the _articles of associa tion fa~l to fix the day on which
the election for direct ors shall be had, or 1f no election is held on
the ~ay fixe?, the _day for election sha~l be de_signated by the board
of director s m their by-laws or otherwi se; or 1f tbe director s fail to
fix a day, shareho lders represe nting two-thirdi,; of the capital stock
may do so.
SEC. 20. The shareho lders of every banking or eavin <Ts associai-tion organiz ed under this law shall be held individ ually respon ts
ble, equally and ratably, and not one for another , for all contrac to
debts and engagem ents of such associa tion made or entered into
the extent of the amount of his stock therein at the pa.r value thereof
in additio n to the amoun t investe d in and dne on such shares.
SEO. 21. Every bankin g as~ocia tion formed nuder this law shall
make and publish a stateme nt of its resourc es and liabiliti es at
er
least every quarter in each year (at such times as the bank examin d
hereina fter provide d for shall call 11pon it for the same· Provide
that 1-aid examin er ehall call for said stateme nts upon a date at lea~t
fiv_e days ~reviou · to the date upon.w hich said examin er shall Lsue
said call) m some newspa per bavmg a general circulat ion in the
county where such hank is located , and a list of its stockho lders
shall be open to inspecti on by all persons d oing busines s with the
bank.
ed
SEc. 22_. No officer 0f any bank o:r: savings institut ion organizinsavings
or
bank
such
from
under th1 law, shall borrow T11oney
of
stitutio n to exceed the sum of ten thousnn d dollar.,, and no sum he
money shall be loaned to any officer of said in titution unle
furnish es security in at least double the amount of the ]~an made
and no loan by any office r of said institut ion hall be made for
period of over three months , and the tock of the a sociatio n shall
not b~ taken as_ s~curity for uny loan; nor hall any offic r of such
to
bankrng associa tion beco~e an eudor. er or secmity for loansencontrav
in
act
who
officer
or
r
directo
others. The office of any
tion to the provisio ns of this section, immedi ately thereup on becomes vacant; and any loan he hall have made in contrav ention of
the provisi ons of this ection shall be imml'di atcly due and payahle, and the bank shall take immedi ate step to collect the same.
EC. 23. The direct ors may, from time to time. make ucb dividends on their capital stock as they may deem pruden t· Provide d
they shall make no dividen d on the capital tock, except profit~
actually earned and on hand.
SEc. 24. Married w_onwn and m~n_or may, in their own right,
make and draw depo its and draw d1v1dends, and give valid rcceipte
therefor .
EO. 25. The ecretary of Utah Territo ry, until otherwi e proYided, shall b ex -officio Bank Examin er. He ball as orten a. 1
once, and ?Otto exc~ed twice_ a year, eith r in persoi: or by agent
duly app0111ted by him, cxamrn every bank organiz d under this
law, and h or his agent, i_n Cfi; eh_ appoin t one, hall have power
to make a thoroug h examm at1on mto all the affair of the a ociation, a1;1d in so doing, may examin e any of the _officers and agents
th r of on oath, and shall m.tke a full and detailed report in writing of the conditi on of the a sociatio n , which shall be filed in the
offic of aid Examin er, and which shall be opened for the inuch expection of all p r ons doing bu iness with the bank.
of ten
sum
the
services
his
for
aminer, or his agent, shall rec ive
shall
he
mile
five
twentyevery
for
dollar
two
and
dollar per day.
nece arily travel in the perform ance of hi dnty which shall be
o pe:son shall be appa~d by the a oc1ation bv hin~ xamin _d.
examin e the affairs
to
er
Examm
aid
for
agent
such
pomted to be
of any bankin g associa tion of which he is a directo r officer or
'
Original from
stockho lder.

a

UNIVERSITY OF WASHINGTON

645

BA KI G AND COMMERCIAL LAWS- UTAH.
,.,,6. Thi act ball take effect from and aft er the date or the
pa~ age and approval th reof; P1·ovided, that the s ame may be
alter d, changed. amended or repealed at any time hereafter.
Approv d larch • 1 .
EC.

COl\IMERCIAL LAW.
Acknowledgm ents.

( ee Deeds.)

Arrest. Defendant in a civil action may be arrested on an order from the Judge of the Court in which the action is brought, in
the following ca 'e : First. In an action for the recovery of
money or damage!' on a contract expre or implied, when the defendant i about to depart from the Territory with intent to defra11d hi creditors, or .,hen the action is for willful injnry to person, tll character, or to property, knowing the property to belong to
econd. In an action for a fine or penalty, or for a
another.
breach of promise to marry, or for money or property ·embezzled
or fraudulently mi appli ed, or converted to his own use by a public
officer in the con rse of his employment as such, or by any other
per on in a fiduciary capacity, or for mi condnct or neglect in
ofiice, or in a profeiUo nal employment, or for a willful violation or
duty. Third. In an action to recover the possession of per anal
property unjn tly detained when the property or part thereof has
been concealed, removed or disposed of so that it can not be found
or taken. Fourth. When the defendant has been guilty of a fraud
in contracting the debt for which the action is brought, or in co