The full text on this page is automatically extracted from the file linked above and may contain errors and inconsistencies.
B A N K IN G A N D CO M M ERCIA L LA W S
C O M P IL E D
S Y N O P S IS
O F
EX PR ESSLY
T H E
LA W S
RELATING TO
O F
FOR
THE
A LA B A M A
BANKING AND COMMERCIAL USAGES.
Prepared a n d R evised by M essrs. U nderw ood <fc T h ach , A tto rn ey s a t
Law , B irm ingham . ( S e e C a r d i n A t t o r n e y s ’ L i s t . )
A c c o u n ts . I n ail su its on accounts a n item ized statem en t o f th e
account, verified by affidavit of a co m p eten t w itness, is p r i m a f a c i e
evidence of th e correctness o f th e acco u n t, if a s tatem e n t to th a t effect is
endorsed on th e sum m ons. T h e defendant in su ch su its m ay dem and a
bill of item s on p articu lars.
A c k n o w l e d g m e n t s an d p ro o fs of conveyances m ay be ta k e n w ith in
this S tate by ju d g es of th e suprem e an d c irc u it courts a n d th e ir c lerk s,
chancellors, a n d re g iste rs in chancery, ju d g es o f p ro b a te co u rts, ju s tic e s
of the peace, a n d n o taries. I n o th e r S ta te s th e y m a y b e tak en b y ju d g e s
and clerks o f an y federal co u rt, ju d g e s a n d clerks o f any c o u rt o f record,
notaries p u b lic, a n d com m issioners a p p o in te d b y th e g o v ern o r o f th is
State. I f o u t of th e U n ite d S tates, by th e ju d g e of any co u rt o f record,
mayor or c h ie f m a g istra te o f a n y city, to w n , borough, or county, n o taries
public, o r any d ip lo m a tic o r co n su lar o r com m ercial a g en t o f th e U n ited
States.
Any n um ber of g ran to rs m ay be jo in e d in one certificate. A ll officers
w i t h o u t th e S ta te , m a k in g these certificates, should be careful to im press
them w ith th e ir official seals; a n d th is is b e st, th o u g h n o t necessary,
when th e certificates are m ade w ith in th is State.
A c tio n s . A ll o rd in ary suits a t law a re com m enced by suing o u t a
summons, w hich m u s t be accom panied by a co m p lain t, statin g th e cause
of action. All su its o n m oneyed dem ands, ex cep t com m ercial paper,
must be bro u g h t in th e n am e o f th e p a rty really m terested , w h eth er he
have the legal title o r n o t. S u its ag ain st residents o f th e S ta te m ay be
begun by a tta c h m e n t in cases specified by statu te, upo n b o n d and
affidavit being m ade. S u its ag ain st non-residents m ay be com m enced by
attachment a n d publication. E v ery householder o r freeh o ld er m u st be
sued in th e co u n ty o f his resid en ce; or, w here th e re are jo in t d efendants,
in the county o f th e residence of a n y one o f them . F o r recovery o f la n d th e
regular action o f ejectm en t m ay be bro u g h t o r th e s tatu to ry a ctio n fo r th e
recovery of la n d ; a n d su it m u s t b e b ro u g h t in th e co u n ty w here th e land
lies. Personal p ro p erty is recovered by a n action o f d etin u e. A ll actions
survive to th e h eir o r ad m in istrato r acco rd in g to th e ir respective rig h ts.
Non-resident plain tiffs are re q u ire d to give sec u rity fo r costs o r m ake
deposit w ith clerk before com m encing s u i t P ersonal representatives
must be sued in th e county in w hich le tte rs were g ra n te d , b u t served w ith
process in any county.
A d m i n i s t r a t i o n o f E s t a t e s . L e tte rs testam en tary o r o f adm inis
tration are issued o u t o f th e pro b ate co u rt o f th e co u n ty of d eced en t’s resi
dence upon th e e sta te s o f all persons dying in th e S ta te , o r elsew here, and
leaving pro p erty in th e S tate. E xecutors, unless exem pted by w ill, and
administrators are re q u ire d to give bond an d to m ake a n n u al settlem ents.
They m ust give notice o f th e ir ap p o in tm en t by publication. A ll claims
against th e e sta te s of deceased pèrsone m u st be presen ted w ith in tw elve
months afte r th e g ran t o f letters o r after th e accrual o f th e claim and
must be verified by affidavit. I f h eld b y th e p erso n al rep resen tativ e, he
must file th e m in th e office o f th e p ro b a te ju d g e w ho g ra n te d letters,
within tw elve m o n th s a fte r such g ra n t; o r if accru in g th e re a fte r, w ith in
six m onths a fte r th e sam e accrued. N o su it can b e com m enced ag ain st
an adm inistrator o r executor u n til six m on th s after h is a p p o in tm en t, and
no judgm ent rendered u n til tw elv e m o n th s th ereafter. T h e s ta tu te o f
limitations is su sp en d ed w hen a claim is d u ly p re sen te d . B u t p erso n al
representative m ay give w ritten notice to a claim an t th a t su ch claim is
disputed, a n d re q u ire su it to be b ro u g h t thereon w ith in six m o n th s.
Judgments a g ain st an a d m in istra to r in ch ief m ay h e revived against th e
administrator d e t o n i s n o n w hen th e a d m in istra to r h as died, resigned, or
been removed. The co u rt m u st ap p o in t th ree appraisers in each county in
which the decedent le ft p ro p erty , w ho m u st m ake a separate inv en to ry for
property in th a t county. I f a n e sta te is in so lv e n t i t m u st be so reported
by the adm in istrato r a n d ad judged b y th e pro b ate court. C laim s ag ain st
such estate m u s t b e verified b y affidavit, a n d filed w ith in six m on th s
after a declaration o f insolvency.
A ffid a v its . W ith in th is S tate affidavits m a y be ta k e n before every
judge or clerk o f any co u rt, ju stices of th e peace an d no taries p u b lic, or
any other person b y law invested w ith ju d ic ia l fu n ctio n s. O utside of
the State a nd w ith in th e U nited S tates m ay b e ta k e n before any ju d g e
or clerk of an y federal court, ju d g e o f any co u rt o f reco rd in a n y State,
notaries public a n d com m issioners ap p o in ted by th e governor.
A lie n s . F oreigners sh all e n jo y th e sam e rig h ts in resp ect to poslession, enjoy m en t, an d inheritance o f p ro p e rty as n ativ e-b o rn citizens,
and, w hether re sid en t o r non-resident, m ay tak e, hold, and dispose o f all
kinds o f p ro p e rty a s n a tiv e citizen s m ig h t.
A r b i t r a t i o n . T h e law s o f th is S tate encourage a rb itratio n , and
courts are com pelled b y s ta tu te to m ak e a n order su b m ittin g cases to
arbitration w hen m oved fo r b y th e p a rtie s . T h e code provides a sys
tem of arb itratio n , a n d w h en th is is follow ed th e aw ard o f th e a rb itra
tors m ay be en tered u p a n d enforced as th e ju d g m e n t o f th e p ro p er
court, w h eth er m ade in a p en d in g s u it o r n o t. E v ery a rb itratio n w hich
Was good a t com m on law is good in th is S ta te and h a s th e effect o f a
common-law aw ard, b u t c an n o t b e en tered as th e ju d g m e n t o f th e,co u rt.
A r r e s t . T h ere can b e no a rre st on civil process ex cep t fo r co n tem p t
Mid in cases o f alleged lunacy.
A s s i g n m e n t s a n d I n s o l v e n c y . E very general assig n m e n t m ad e
F T a debtor, o r conveyance b y a d e b to r of su b stan tially all o f h is p ro p
erty in paym ent o f a p rio r d e b t, by w hich a preference o r p rio rity of
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
BANK ERS’
D IR E C T O R Y .
p aym ent is given to one o r m ore creditors, shall enure to th e benefit of ail
th e creditors equally, b u t th is section shall n o t a p ply to m ortgages,
pledges, or paw ns given to secure a d e b t c ontracted contem poraneously
w ith the execution of the m ortgage. A ll assignm ents bv a d e b to r m ade
w ith in te n t to hinder, delay, or d efra u d creditors, are void. All deeds of
assignm ent fo r the benefit of creditors shall, as soon as executed, be filed
and recorded in th e office of the judge of p ro b a te o f th e county in w hich
th e property is situated. E very judgm ent confessed, atta ch m e n t procured
by th e debtor, or o th e r disposition of property b y w hich a debtor conveys
all, or substantially all, of his property w hich is subject to execution in
p aym ent or as security for a debt, shall b e deem ed a general assignm ent.
A t t a c h m e n t process w ill issu e upon affidavit b y th e creditor or h is
a g en t of th e am ount d u e and th a t th e d e b to r absconds, o r resides o u t of
th e S tate, or secretes him self so th a t process can n o t be served upon him ,
o r is a b o u t to rem ove o u t of th e S tate, or has o r is a b o u t to fraudulently
dispose o f h is pro p erty , or frau d u len tly w ithholds m oney, chattels, or
effects w h ic h are liable to th e satisfaction of his d e bts; plaintiff m u st
give bon d in double th e a m o u n t claim ed. G a rn ish m en t process w ill
issu e in aid o f a tta c h m e n t in all such cases. G a rnishm ent m ay be d is
solved by g iving bond. In all cases of a ttachm ents sued o u t solely upon
th e g round th a t the defendant is a non-resident, th e attach m en t m ay issue
w ithout giving bond, b u t if defendant appears and pleads, bond m u st be
given or th e attach m en t dism issed.
B a n k s . T h e n a tio n a l b a n k system is in force in th is S ta te un co n
tro lled in any w ay by S tate law s, ex cep t th a t th e shares are su b jec t to
ta x a tio n as o th er personal property, b u t th e b a n k is required to p ay
th e ta x .
T here Is no provision of law for th e establishm ent o f b a n k s of issu e
in th is State. B anks of discount and deposit m ay be established u n d e r
th e general incorporation laws, b u t m u s t be w ound u p a t t b e e n d o f
tw enty years. D epositors no t claim ing in te re st are preferred c re d i
to rs in case of insolvency.
S ta tu to ry provisions fo r b anks of discount a nd d e posit: 1. A ny n u m
ber of persons (not less th a n three stockholders) m ay associate th e m
selves together to establish a ban k of deposit and d isco u n t; th e ir c ap ital
stock to be n o t less th a n $50,000, of w hich n o t less th a n 80 p er cent,
an d in no case less th a n $25,000 in tow ns of 2,500 in h a b ita n ts, and n o t lesa
th a n $15,000 in tow ns of less th a n 2,500 in h a b ita n ts, m u st be a ctu ally p a id
b y th e subscribers for stock before th e filing of th e declaration of incor
p o ration. 2. Such persons m u s t m ake a declaration in w riting u n d e r
o ath, s ettin g fo rth : (a) T h e nam e of th e association; (&) place o f b usi
n e ss; (c) th e n u m b e r of shares of capital stock, a nd to ta l am o u n t;
(d) nam es a nd residences of stockholders, a nd n u m b e r of shares h eld by
each; (<) tim e when the business o f the association is to com m ence and
to end. 8. W h ic h declaration m u st be recorded in th e pro b ate c o n rt of
th e c o u n ty w here th e bank is established. 4". A tra n s c rip t o f th e declara
tio n of incorporation m ay also be filed in th e office o f th e secretary o f
State, w ho issues to th e incorporators a certificate o f incorporation. 5. A
stockholder is liable for the debts of th e b a n k only to th e e x te n t of
unpaid s to ck ow ned b y him .
A ny b an k er w ho discounts a bill o r note a t a g reater ra te th a n 8 p e r cen t
can n o t enforce th e collection of same except as to th e principal, a n d
if any in terest h a s been paid it m ust be deducted from th e p rin cip al.
B i l l s o f E x c h a n g e . Prom issory notes and bonds payable in m oney
a t a b a n k or p riv a te b anking house, or a certain place of p ay m en t th e re in
d esignated, and bills of exchange are governed by th e com m ercial law
A ll o th er in stru m e n ts payable a t a bank, or o th e r designated place of p ay
m ent, are governed by th e comm ercial law as to days of grace, p ro te s t
an d notice. T hree days of grace allow ed on com m ercial p a p er. G race
allow ed on sig h t bills. N o acceptance valid unless in w riting. D am
ages on pro test for nonacceptance o r nonpaym ent 5 p e rc e n t. T h is
covers all charges except interest.
B i l l s o f L a d i n g . F a lse b ills of la d in g a nd receipts are fo rb id d en .
N o w arehousem an, com m on carrier, or w harfinger, or o th e r p e rso n e n
gaged in th e b u sin ess of storage, carriage, or k eep in g fo r sh ip m en t, o r
of forw arding thin g s or p roperty shall is su e any bill of la d in g o r docu
m en t for any p ro p e rty , b y w hich i t shall appear th a t su ch p ro p e rty h a s
b e en sh ip p ed on any vessel o r delivered a t a n y ra ilro ad w arehouse,
unless sam e is actually delivered; provided, ra ilro ad m ay, in c erta in
cases, is su e b ill o f lading upon delivery of cotton to com press.
C h a tte l M o rtg a g e s .
(S e e M o r t g a g e s .)
C o l l a t e r a l s . Personal property or secu rities, w h e th er n e g o tia b le o r
n o t, pledged or deposited as collateral security, m ay, in d efault o f p ay
m e n t, be sold by th e cred ito r a t p u blic a u ctio n , a t place a t w h ich sales
a t p u blic outcry are usual. C reditor m u s t give to p led g o r w ritten
no tice o f h is in te n tio n to sell, arid of tim e a n d place o f sale, tw o days
before sale, an d m u s t advertise sale fo r five days in n ew spaper p u b
lish ed in c o u n ty w here i t is to b e m ade. N am e of p ledgor n o t to
be publish ed w ith o u t h is co n sen t. P a rtie s m ay m a k e su c h o th e r
con tracts a s th e y m ay see fit for th e sale of pledges, n o t in conflict w ith
law s of th e S ta te . Pledgee c an riot assign o r tra n s fe r p le d g e d p ro p e rty
to any o th e r th a n pledgor or h is assignee, e x ce p t w ith o rig in a l d ebt.
V iolation of th is provision o p e ra te s a discharge of th e pledge, an d re in
s ta te m e n t o f pledgor’s o rig in al ow nership th e re o f, b u t d oes n o t affect
d ebt. Pledged p ro p e rty m ay be a ssigned w ith o rig in a l d e b t, assignee
ta k in g rig h ts o f o rig in al pledgee. C ollaterals held b y paw n b ro k ers
m u st b e entered in a b ook th a t is open to inspection, a n d e a n be sold
only a t public auction a fte r five d a y s’ advertisem ent.
C o n t r a c t s . C ontracts fo r th e conditional sale of p e rso n al property
by th e term s o f w hich th e vendor retain s th e legal title u n til p aid for,
m u s t be in w ritin g an d recorded in six ty days, else th e y a re void as
ag ain st creditors a nd purchasers w ith o u t n o tic e . C ontracts fo r th e sale
of land, unless p a rt of th e purchase-m oney be paid, a nd th e p u rc h a se r
p u t in possession, o r any in te re st th e re in (except leases fo r n o t longer th a n
1167
1168
BANKING AND COMMERCIAL LAWS — ALABAMA.
one year), o r co n tra c ts n o t to be perform ed in a y e ar, o r to answ er for
th e d ebt, d e fa u lt, o r m iscarriage o f an other, o r upo n consideration of
m arriage, ex cep t m u tu al prom ises to m a rry ; every special prom ise by an
ex ecu to r o r ad m in istrato r to an sw er dam ages o u t of his ow n estate, are
void, u n less in w ritin g , su b scrib ed by th e p a rty to b e ch arg ed , and express
in g th e con sid eratio n .
safest to have both. A seal is n o t necessary to convey th e legal title.
A ny in stru m e n t executed b y th e g rantors, w ith th e requisite formalities'
is effectual to pass th e legal title to th e grantee, if such was the intention
o f th e grantors, to be collected from th e entire instrum ent. T he names
of a l l t h e g r a n t o r s s h o u l d b e s e t o u t i n t h e b o d y o f t h e i n s t r u m e n t . (S e t
a l s o A c k n o w l e d g m e n t s a n d C o n v e y a n c e s .)
C o n v e y a n c e s . All p erso n s o f th e age o f tw enty-one years, n o t la b o r
in g u n d e r some legal d isab ility , m ay convey th e ir real estate or any in ter
e st th e re in b y in stru m e n t in w ritin g signed by th e g ran to r, or his agent
duly au th o rized in w riting, a n d a tte ste d by one w itness, o r if th e grantor
c an n o t w rite, b y tw o w itnesses w ho are able to w rite, a n d w ho sign th e ir
n am es as w itnesses. I f th e g ra n to r is n o t ab le to sign h is nam e i t m u st
be w ritten for him , a n d th e w ords “ his m a rk ” w ritten over or a g ain st it.
T h e person w ritin g h is n am e m u st sign as a w itness. A p aro l lease for
less th a n one y e ar is valid. A m arried w o m an over eighteen years o f age
m ay convey dow er in h e r h u sb an d ’s lan d s, a n d h a s generally th e sam e
rig h ts as m arried w om en over 21 years of age. T h e h u sb an d m u st jo in in
any conveyance o f th e w ife’s sep arate estate. Conveyances, to o p erate as
notice, m u s t b e acknow ledged an d recorded. ( S e e A c k n o w l e d g m e n t .) I f
th is is do n e w ith in tw elv e m o n th s a fte r th e ir ex ecu tio n th e y m ay be
u sed as evidence w ith o u t fu rth er p roof o f execution. L easehold e states
m ay be c re ated to la s t ninety-nine years.
D e p o s i t i o n s . I n cases a t law, depositions m ay be ta k e n of witnesses
w ho can n o t be p re sen t a t th e tria l in th e follow ing cases: W hen the wit
ness is a fem ale; w hen th e w itness is too sick to a tte n d co u rt; when the
w itness resides m ore th a n 100 m iles from th e place of trial, or is absent
from th é S tate; w hen th e w itness is a b o u t to leave th e State, and not
re tu rn in tim e fo r th e trial; w hen th e w itness is the sole w itness-of the
fa c ts; w hen th e w itness is one of the officers designated in Code § 1833.
A ffidavit m u s t be m ade o f one of th e above facts, and of th e materiality
of th e w itness. M ay be ta k e n on in terrogatories by a commissioner
ap p o in ted b y th e court fo r th a t purpose. T h e com m issioner m ay be any
suitable p erson, need n o t be an officer. I n equity suits, w here witnesses
live w ith in 100 m iles of th e p lace of trial, depositions m ay be tak en by oral
exam ination before the register, or a special exam iner, or commissioner
appointed fo r th e purpose.
C o r p o r a t i o n s . E very com pany, corporation, o r association, n o t
org an ized u n d e r th e law s of A labam a, engaged in any o th er b u sin ess th a n
insurance, shall, before engaging in any business in th is S tate, file in the
office of th e secretary of S tate, a t th e capitol in M ontgom ery, an in stru
m ent in w ritin g , u n d e r th e seal of such com pany, corporation, or associa
tion, and signed officially by th e p resid en t a n d secretary thereof, designat
in g a t least one k n o w n place o f business in th is S tate, an d an a u thorized
a g en t resid in g th ereat. I f such co rp o ratio n is engaged in any busin ess
of insurance, th e statem e n t m u st also be filed in th e office o f th e auditor.
I f th e a g en t is changed, a new p ap er m u st be filed. H eld n o t to apply to
co rporations selling goods by trav elin g a g en t o r sam ple. Foreign cor
p o ratio n s tra n sa c tin g b u sin ess in th is S ta te w ith o u t com plying w ith
above provisions, fo r each offense fo rfe it to th e S ta te $1,000, an d any
p erso n actin g as agent fo r foreign corporation th a t h a s n o t so com plied,
forfeits fo r each offense $500. All foreign co rporations d oing business in
th is S ta te are req u ired to p ay license fees ran g in g from $25 to $25u,
a cco rd in g to capital. Foreign corporations can do no business until fees
are paid, a n d ail contracts before th e n are void. (Code 1896, 1321-1324.)
All co rp o ratio n s engaged in th e b u sin ess o f len d in g m oney m u st pay an
an n u al license of $100. C orporations o p eratin g pig-iron storage yards
m u st pay an a n n u al license oi $50. All co rporations w hich are n o t speci
fically req u ired to p ay an a n n u al license m u st pay a n annual license
ra n g in g from $10 to $500, according to am ount o f paid-up capital stock.
C o s ts . T h e successful p a rty in all civil actions is e n title d to fu ll costs
a n d to ju d g m e n t a n d execution therefor, as a general ru le; b u t to this,
th ere are some exceptions m ade by statu te, in cases o f ten d er, usury, set
off, an d trifling dam ages recovered in actions for to rts. T he successful
p a rty is also liable fo r costs m ade b y him if th ey can n o t be m ade o u t of
his defeated antagonist. Costs m ay also be im posed as term s upon a p arty
in-fault, w ho asks indulgence from th e co u rt; a n d m ay in equity be im
posed m uch a t discretion o f th e chancellor.
C o u r t s . T e r m s a n d J u r i s d i c t i o n . T h e suprem e co u rt, except to issue
w rits of in ju n c tio n , h ab eas corpus, quo w arran to , and o th er rem edial and
original w rits n ecessary to its supervision o f in ferio r courts, a n d im peach
m ents o f judicial officers, has only ap p ellate ju risd ic tio n and cases are tried
o n th e record sen t up. C irc u it co u rts have unlim ited common law ju ris
d ictio n w hen th e m a tte r or sum in controversy exceeds $50, a nd exclusive
ju risd ic tio n of lib el, slan d ef, assau lt an d b a tte ry , an d ejectm ent. The
courts o f chancery h av e exclusively e q u ity ju risd ic tio n . R egular te rm s
o f b o th tw ice a y ear in n e arly every co unty. C hancery co urts have full
eq u ity pow ers. Ju stic e s of th e peace have ju risd ic tio n of all civil causes
w here th e am o u n t in controversy does n o t exceed $100 in value,
except in cases of lihel, slan d er, a ssa u lt an d b a tte ry , an d ejectm ent.
N a m es o f all p a rtie s p lain tiff a n d in d iv id u a l nam es of c o p artn e rs m u s t be
s e t o u t in W rits. P a rtn e rsh ip m ay be su ed in co u rts o f law in firm nam e,
w ith o u t settin g fo rth n am es of co p artn ers, b u t ju d g m e n t in such suit
binds only p artn e rsh ip ’s p ro p erty , n o t th a t o f in d iv id u al partners. T h e
w rit m ay b e served upon any one o f th e p a rtn e rs ; th e ju d g m e n t reaches
th e p a rtn e rs h ip pro p erty alone. Any one p a rtn e r, o r h is personal repre
sen ta tiv e , m ay be su ed alone on a p artn e rsh ip obligation. N on-residents
m n s t give secu rity for c o sts w h en s u it is com m enced or w ith in such tim e
th e re a fte r as th e co u rt m ay d irect. M oney m ay b e deposited w ith th e
clerk in stead o f sureties.
C r e d i t o r s ’ B i l l s . W hen a n execution h a s issued from any court,
and has n o t been satisfied, th e plain tiff th erein , o r any person for w hose
benefit execution issued, m ay file a bill to have discovery of th e property
o f th e defendant, belonging to h im or h eld in tru s t for him , an d to prevent
th e tran sfer, paym ent, or delivery th ereo f to th e defendant, except when
th e tru s t w as created b y some person o th er th a n th e defendant. T he
co u rt m ay b rin g any p a rty concerned before it, a n d decree such property,
o r th e d efen d an t’s in terest th erein , to th e satisfaction o f th e plaintiff’s
debt. C reditors generally, w ith or w ith o u tlie n s, m ay file a b ill to discover
a n d s u b jec t to th e p ay m en t of th e ir deb ts, p ro p erty o f th e ir debtor frau d
ulently tran sferred o r conveyed, o r a tte m p te d to be so tran sferred or con
veyed, b y g ran t, collusive judgm ents, o r otherw ise. A ny n u m b e r of cred
ito rs m ay jo in in su ch b ill; and th e deb to r m u sta n sw e r on o ath a nd disclose
all his property, in w hich h e has any in terest legal or equitable, and w here
a n d in w hose possession th e sam e m ay be fo u n d ; an d th e court, in term
o r vacation, m u st m ake all decrees an d orders necessary a nd proper to
reach a n d su b ject su ch p ro p erty to th e p ay m en t of such debts; and, to
th a t end, m ay a p p o in t a receiver, and req u ire a n d enforce conveyances,
delivery, a n d paym ents to h im . T h e d eb to r him self, after answ er, m ay,
in a p ro p er case, be subjected to e x am in atio n a n d answ er under oath, in
. th e premises..
B a y s o f G r a c e . A ll com m ercial p a p er is en title d to grace. I f the
la st day of grace falls on a holiday, th e p a p er is due th e n e x t succeeding
busin ess day. H olidays are Sundays, C hristm as day, 1st J a n u a ry , 22d
Feb ru ary , 26th A pril, 4th. J u ly , T han k sg iv in g day. Good F rid ay , M ardi
G ras, J a n u a ry 19th, J u n e 3d, A pril 26th, an d th e 1st M onday in Septem ber.
D e e d s . Deeds for th e alien atio n of lands m u st be w ritte n or prin ted ,
o r p a rtly w ritte n a n d p artly printed, on parch m en t o r paper, a nd m u st be
signed a t th e ir fo o t b y th e grantors, or th e ir agents, h aving due w ritten
au th o rity , I f g ran to rs c a n n o t w rite th e ir nam es, th e n th e ir nam es m u s t
b e w ritten f o r each of them , w ith th e w ords “ h is m a rk ” w ritten over or
a g a in st each, nam e, a n d i t is u su al fo r each g ran to r to m ake h is crossm ark. o r to u ch th e pen w hile it is bein g m ad e. T he execution of th e deed
m u s t b e a tte ste d by a t le a st one w itn ess; an d tw o are required w here
g ra n to rs execute th e m b y m aking m arks. A ll w itnesses m u st be able to
w rite, an d a ctu ally w rite th e ir nam es as such. A cknow ledgm ent o f ex
ecution b y g ra n to rs dispenses w ith th e n ecessity fo r w itnesses, b u t it is
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
D e s c e n t a n d . D i s t r i b u t i o n . T he re a l esta te o f persons dying intes
ta te , in th is State, descends, subject to th e paym ent of debts and the
w idow ’s dow er, as follow s : F ir s t to th e children of th e in te state or their
d escendants p er stirpes in equal p a rts. N ex t to th e p a re n ts, if they sur
vive, in equal parts. I f only one p a re n t survives th e n one-half to such
p arent a nd one-half to th e b ro th e rs a n d sisters of th e deceased or their
descendants, and if th e re b e no brothers and sisters an d th e ir descend
a n ts then th e w hole e s ta te shall go to th e surviving parent. I f there are
no children or th e ir descendants, a n d no fa th e r o r m other, then to the
bro th ers a nd sisters o f the in testate, or th e ir d escendants, in equal parts.
I f th e re are none of th e above to take, th e n th e w hole to th e husband or
w ife o f th e in te state , a n d if there be no h u sb an d o r w ife and none
o f th e foregoing living then to th e n e x t of k in in equal degree in equal
parts. I f th e re are no n e x t o f kin i t escheats to th e S tate. T he personal
esta te is distrib u ted th e sam e as th e real e sta te , ex cep t th a t if there are no
children th e widow is entitled to all of th e personal e sta te . If bu t one
child she takes one-half. I f n o t m ore th a n four children to a child’s part,
an d i f m ore th a n four to one-fifth. Posthum ous children ta k e as others.
Illeg itim ate children in h e rit from th e ir m other. T h e h u sband upon the
d e a th o f th e wife is e n titled to half of h e r personal estate absolutely and
to th e use of all o f h e r real e sta te fo r life, unless he has been divested of
all control over h e r estate b y a decree of th e chancery court.
D i v o r c e . T h e chancery court an d other courts having equity powers
have exclusive ju risd ic tio n of divorce and all m a tte rs p e rta in in g thereto,
a nd divorce m ay be fo r th e follow ing c au se s: To e ith e r p a rty fo r adultery,
for voluntary abandonm ent fo r tw o years, for im prisonm ent in the peni
te n tia ry for tw o y e ars, w hen th e sentence is for seven years or longer, for
com m ission of th e crim e ag ain st n ature, a nd for becom ing addicted to
h abitual drunkenness a fte r m arriage. M ay be granted to th e husband
w hen th e w ife was p re g n a n t a t th e tim e of m arriage w ith o u t his know
ledge or agency. M ay be granted to th e w ife w hen the h u sb an d has com
m itte d actu al violence on h e r person a tte n d ed w ith d an g er to life or
h e alth , o r from his conduct there is reason to apprehend such violence.
T h e plaintiff, if th e defendant be a non-resident, m u s t have been a bona
fide resid en t a t le a st twelve m o n th s, a nd w hen th e ground of divorce is
a bandonm ent m u s t allege and prove th a t he o r she has been a bona fide
resident o f th e S tate fo r three years n e x t before th e filing of the bill.
P en d in g a s u it fo r divorce the court m u st m ak e an allow ance for the sup
p o rt or th e wife ou t of th e estate of th e h usband, suitable to the estate
and condition of th e p arties, a n d alim ony is allow ed afte r divorce accord
in g to the circum stances of th e case. D ivorce fo r adultery b a rs dower. A
divorce deprives th e h u sb an d of all control over th e w ife’s separate estate.
D o w e r . U nless th e w ife h a s relin q u ish ed h e r rig h t of dow er in the
m anner provided by statu te she is, upo n th e d e a th of th e husband, en
title d to dow er in all lands of w hich th e h u sb a n d was seized in fee during
th e m arriage, or of w hich an o th e r w as seized to his use or to which he
h a d a perfect e q u ity having p a id all th e purchase m oney therefor. The
dow er in te re st is one-half w hen th e husband leaves no lineal descendants,
a n d one-third w hen th e estate is in so lv e n t o r th e h u sband leaves children
o r th e ir descendants. I f th e w ife has a t th e d eath of the h u sb an d a sep
a ra te e sta te e q u al in value to her dow er in te re st she shall n o t have dower,
and if of less value is only entitled to such am ount as w ith h e r estate will
m ake th e fu ll value of th e dow er.
E v i d e n c e . All testim ony m u st be given on o ath or affirm ation; and
unless otherw ise provided in open court. In civil suits, p arties and inter
ested persons are com petent; b u t they can n o t te stify as to any transaction
w ith, or statem ent by, any deceased person w hose estate is interested in
th e re su lt, or w hen such deceased person, a t th e tim e o r such transaction
or statem ent, w as acting in any representative or fiduciary relation to the
p a rty against w hom such testim ony is offered,unless called to testify by the
p a rty to w hom such in te re st is opposed, or unless th e testim ony of such
deceased person is introduced by the party w hose interest is opposed to
.that of the w itness, or’has been tak en an d is on file in th e cause. A wit
ness disqualified by interest, can n o t render him self com petent by transfer
rin g his interest. C onviction of perju ry and subornation of perjury make
one incom petent as a w itness; of other crimes, goes only to his credibility.
T he execution of any w ritten in s tru m e n t m ay be proved by th e maker
him self, w ith o u t calling the attestin g w itnesses thereto. A ll written
instrum ents, th e foundation of th e suit, purporting to be executed by the
defendant, or alleged in th e com plaint to be executed by him . are self
proving, unless th e execution thereof b e denied by sw orn plea. The same
rule applies to w ritten assignm ents, w hen su it is brought by th e assignee
of such contracts. T h e existence of corporations and firm s bringing suit
is n o t in issue, and need n o t be proved, unless denied by sw orn plea. The
testim ony of w itnesses m ay, in certain cases, be tak en out of court, and in
w riting. ( S e e D e p o s i t i o n s . ) Conveyances duly executed a nd recorded,
paten ts from th e u n ite d States, and certificates o f registers of the land
office of th e U nited S tstes, are adm issable w ithout proof; also certified
copies from th e records of any land office in th is S tate; of th e books of the
U. S. surveyor-general; of field-notes, from the probate judge; from the
books k e p t in th e office of any public officer, m ade by th e custodian
thereof; a nd certificates of th e head of any bureau or departm ent of the
general governm ent. E n trie s in p h ysicians’ books, those m ade by de
ceased guardians, a d m inistrators, a nd trustees in books k e p t by them,
prices-current, m arriage registers, and certified copies thereof, are com
p e te n t and presum ptive evidence of th e facts th e re in stated.
E x e c u t i o n s . W rit o f f i e r i f a c i a s is a lien only w ith in t h e county in
w hich it is received by the officer, on lands an d p erso n alty o f defendant
s u b jec t to levy and sale, fro m th e tim e only th a t th e w rit is received hy
such officer a nd c o ntinues as long as w rit is regularly delivered to the
sheriff w ith o u t th e lapse of an entire term . A s ta te m e n t of a judgment
certified b y th e c le rk of th e c o u rt m ay be filed in th e office o f th e judge of
probate, w h ich m akes th e ju d g m e n t a lie n w ith in th e co u n ty in which it
BANKING AND COMMERCIAL LAWS—ALABAMA.
is filed for te n years th ereafter. E x ecu tio n m ay b e issu ed on su ch ju d g
ment a t any tim e . E x ecu tio n s issued by justices are liens on th e pro p
erty of th e defen d an t, on w hich they are levied, from th e tim e of th e levy.
An order m u s t h e obtained fro m th e circu it co u rt fo r th e sale o f lands
levied on u n d e r execution from a ju stic e's court. N o stay o f ex ecu tio n in
circuit court except b y appeal, an d supersedeas b o n d w h ich delays collec
tion until affirm ance by su p rem e co u rt, and e n ta ils 10 p e r c en t damages,
with legal in te re s t a n d costs. In ju s tic e ’s courts stay is gran ted on
good sec u rity ; below $20, th irty days; over $20, s ix ty day s.
E x e m p t i o n s . T h e hom estead, n o t exceeding 160 acres in area, and
not exceeding $2,000 in v alu e, or, in a city , to w n o r village, th e lo t w ith
dwelling, etc., n o t exceeding $2,000 in value, ow ned a n d occupied by any
resident. E x e m p tio n o f ho m estead m ay J>e w aived, h u t wife m u s t jo in
in the w aiver and i t m u st he acknow ledged by h e r to be of h e r ow n free
will and accord, on a n exam ination separate a n d a p a rt fro m h e r husband.
Any person m ay, by stip u la tio n in w ritin g , w aive w hole or any specific
part of e x em p tio n o f p erso n alty , w ith o u t th e consent o f wife. P ersonal
property to value oi $1,000 selected by d eb to r, a n d w ages to $25 p er
month, are also ex em p t. W idow ’s e x em p tio n includes also w earin g
apparel, fam ily books and p ic tu re s, and p ro v isio n s fo r tw elve m o n th s.
On the death o f any m arried w om an leaving an estate a n d a m in o r child,
or children, th ere shall be exem pt fro m adm inistration of h e r estate in
favor of snch m in o r such property, real a n d personal, as is now exem pt
by law to the w idow and m inor children upo n th e death o f th e father.
No property ow ned by p artn ers as p a rtn ersh ip p ro p erty , o r purchased
with partnersh ip fu n d s fo r p a rtn ersh ip purposes, shall b e su b jec t of
homestead o r oth er exem ption as a g ain st c o p artn ers o r p a rtn e rsh ip
creditors. Proceeds of life insurance exem pt fro m cred ito rs of th e a ssu r
ed or beneficiary.
F o r e i g n C o r p o r a t i o n s . Corporations, n o t created by th e laws of
Alabama, m ay carry on business w ith in th e State, u p o n com pliance w ith
the conditions im posed by th e statutes. They m u st have a k now n place
of business, and an authorized agent w ith in th e S ta te , w hich m u st be
designated in statem ents filed w ith th e Secretary o f S tate o r th e A uditor;
must m ake a proper show ing of th e ir financial a b ility an d responsibility,
and pay th e franchise or privileged taxes im posed on them . Upon com
pliance w ith th ese req u irem en ts they m ay acquire and hold, b y purchase,
subscription, o r otherw ise, if th e ir ch arters so allow, and ow n an d vote
shares in th e capital stock of any dom estic corporation. Foreign corpo
rations, having fully com plied w ith th e law s reg u latin g th e ir doing bu si
ness in th is State, an d actually doing b u sin ess therein, are invested w ith
the same rig h ts o f em in en t dom ain, and rem edies for th e enforcem ent
thereof, as like railro ad , m ining, quarrying, a n d m an u factu rin g corpora
tions created and organized in th is State.
F o r e i g n J u d g m e n t s . Ju d g m en ts rendered in sister S tates are con
clusive in A labam a, if by th e law s of th e S tate in w hich th ey w ere rendered
they w ould be th ere conclusive." T hey can b e enforced, however, only by
suit in th e courts of A labam a; in w hich m ay be p u t in issue th e facts
necessary to give th e foreign court ju risd ictio n ; a n d if it h e show n th a t
such facts d id n o t exist, th e ju d g m e n t w ill be held a n u llity , alth o u g h it
may recite th e existence of such ju risd ictio n al facts.
F r a u d . O b tain in g m oney o r goods on c re d it u n d e r false color o r p re
tense o f c arry in g on b u sin ess, o r u n d e r false re p re sen ta tio n of pecuniary
condition, w ith in te n t to d efraud, o r b rin g in g in to th e S ta te m oney or
goods so obtain ed , p u n ish ed as larceny.
G a r n i s h m e n t m ay issue in a n y case a fte r s u it com m enced upon
affidavit of necessity a n d bon d as in atta ch m e n t cases, o r a fte r judgm ent,
without bond.
G u a r a n t y C o m p a n i e s . G uaranty com panies m ay becom e su rety on
bonds in all proceedings in any c o u rt or th is S tate upon th e following con
ditions: All such com panies, if in co rp o rated under th e law s of A labam a,
must have a cap ital sto ck p aid in o f a t least $100,000, w hich m u st be
‘invested e ith e r in U n ited States bonds, or bonds o f th e S tate of A labam a,
or other first-class bon d s o r stocks, w h ich m u st h e w o rth m ore th a n par,
•and m ust deposit w ith th e State treasu rer $25,000 w o rth o f su ch securities.
The debts of su ch com pany m u s t n o t exceed its available assets a n d a
premium reserve equal to 50 p e r c en t of th e annual prem ium s on all o u t
standing risks, and such com panies m u st fu rn ish sem i-annual statem en ts
of their financial condition, an d pay a license o f $100 p er annum . I i such
company is n o t organized u n d er th e law s o f A labam a, it m u st have a
paid-up capital o f $250,000, w hich m u st be invested as above stated , o r in
the bonds of th e State u n d er w hose law s it is organized, and m u st deposit
with the State tre a su rer $50,000 o f su ch secu rities; a n d th e sam e rule as
to debts and license above stated applies to th e m , an d th e au d ito r has
power to revoke th e license of such'com pany w hen it is show n to b e in an
insolvent condition, o r h a s v iolated any o f th e provisions of th is A c t; and
when so revoked all bon d s executed b y such com pany shall be cancelled,
unless additional sec u rity b e given. (Code 3093, 3094.)
H o lid a y s . (S e e D a y s o
H u s b a n d a n d W ife .
f G r a c e .)
(S e e M a r r ie d
W o m e n .)
I n j u n c t i o n s . In ju n ctio n s m ay b e g ranted, returnable in to a n y c h an
cery court, o r other court h aving equitable ju risd ictio n , by judges o f th e
supreme an d c ircu it courts, a n d o th er judges w hen specially au th o rized ,
and chancellors, eith er in term tim e o r v acation. U niform ly,_a b o n d is
required as a co n d itio n to th e ir issue, th e am o u n t o f w hich is fixed by
statute, or by th e officer g ran tin g th e application for th e in ju n ctio n .
I n s o l v e n c y . T here are no insolvent law s m th is S ta te . E sta te s of
dead m en m ay be declared insolvent a n d th e creditors p aid pro rata.
Claims again st su ch e states m u s t b e filed w ith in six m o n th s a fte r a d ju
dication of insolvency, verified by Affidavit.
I n s u r a n c e C o m p a n i e s . B y a n a ct o f th e legislature, insurance
companies and agents are prevented fro m en terin g in to or form ing any
combination o r association fo r th e purpose of fixing any schedule or
tariff of insurance rates, a n d in all actions on insurance policies, if it is
shown th a t th e d efen d an t com pany o r its agent belonged to any tariff
association o r o th er organization o f lik e character, th e plaintiff shall be
entitled to recover, in ad d itio n to h is actu al dam age, 25 p er cen t of
such actual dam age as a pen alty .
I n t e r e s t . Legal ra te is 8 p e r cent, a n d sam e is allow ed on all open
accounts, ju d g m e n ts, a n d decrees. U su ry fo rfe its all in te re st. U su rio u s
interest p a id m ay be recovered b ack w ith in tw elve m onths afte r com
pleted paym ent. (Code 2630.)
J u d g m e n t s of co u rts o f reco rd are p ro v ed by a certified tran scrip t.
Judgm ent n o t a lien, b u t w hen a certified statem en t thereof, m ade by the
clerk of th e court, is filed in th e office o f th e pro b ate ju d g e i t becom es a
lien on all pro p erty of th e d efen d an t th e re in in th e county, w hich is su b
ject to execution, fo r ten years, to enforce w hich execution m ay issue a t
any tim e w ith in th a t period. E x e c u tio n received b y sheriff d u rin g life of
defendant m ay be le v ie d a fte r h is decease o r a lia s ex ec u tio n issu e d and
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1169
levied if there has n o t b e en lapse o f e n tire te rm so as to destroy lien
originally created. A bove applies to executions from circ u it a nd chancery
courts. A n execution issued b y a ju stic e of th e peace is a lien only
from tim e o f its levy. M e c h a n i c s ' L i e n . M echanics, m aterial men, and
laborers have a lien on houses b u ilt and th e ground on w hich they stan d
upon com plying w ith th e law . (Code 2723-2752.)
J u r i s d i c t i o n . T he suprem e court has jurisdiction of appeals from
all inferior courts of record, and supervision and control of them by, its
original process: a nd it has original ju risd ic tio n of im peachm ents of all
judicial officers from w hose courts appeals m ay be tak en directly to th e
suprem e court. T he circuit courts have original jurisdiction a t law in
ail m atters civil and crim inal; h u t in civil cases only w hen th e am o u n t
in controversy exceeds $50. I t has jurisdiction also of appeals from
th e courts of justices of th e peace, a n d n o taries public having a nd
exercising the same pow ers w ith justices. T he chancery courts have
original a nd appellate equity jurisdiction, and are invested w ith a u thority
to rem ove th e disabilities of coverture, and, w ithin lim its, also those of
non-age, and to grant divorces and decree alim ony. T he sam e jurisdiction
a t law , vested in th e circu it courts, and the sam e jurisdiction in equity,
vested in chancery courts, th e legislature in som e cases has com bined in
city courts created by it. I t has also created local crim inal courts w ith
general jurisdiction in crim inal m atters. Ju stices of th e peace, a nd
notaries public w ith ju stic e ’s powers* have civil jurisdiction in all cases
w here th e am ount in controversy does n o t exceed $100, except in cases of
libel, slander, assault and battery, and ejectm ent. T heir crim inal jurisdic
tion, except in p e tty m isdem eanors, is lim ited to prelim inary exam inations,
w hen they m ay discharge, bail, or com m it w ithout bail.
L i c e n s e s . F o r th e practice of law a nd m edicine, and th e carrying on
o f a n um ber of vocations and kinds of business, licenses are required,
w hich are granted only upon the passing of prescribed exam inations. F o r
purposes or revenue a nd police, a license ta x is im posed by the State on a
great num ber of occupations, trades, and en terp rises; and th e pow er to
im pose sim ilar license-taxes is granted to m unicipal corporations, and, to
som e less extent, to counties. T he exem ptions from th ese license-taxes
are com paratively few.
L i e n f o r R e n t . L a ndlords of storehouses, dw elling houses, and other
buildings, have a lien fo r re n t on su ch goods, fu rn itu re , and fixtures
th e re in as m ay belong to th e te n a n t, superior to all other liens, except
fo r tax es, also o n crops grow n o n rented prem ises for re n t of th e current
year.
L i m i t a t i o n s . N o te s a nd stated accounts, six y e ars; open accounts,
th ree years; sealed in stru m e n ts, real actions, and m otio n s against
officers, te n years; ju d g m e n ts, tw enty years; actions on th e case, one
year. B ar created b y sta tu te can only be rem oved b y a p a rtia l p ay m en t,
m ade on th e contract before th e b a r is com plete, or by an uncondi
tional p ro m ise in w ritin g . T hose u n d e r legal disability have three years
a fte r its rem oval in w hich to begin s u it; b u t uo actio n can be com
m en ced a f te r tw e n ty years. S tatu tes o f lim itatio n apply to m arried
w om en’s separate e states. A ctions founded on a prom ise in w ritin g not
u nder seal, o r for tre s p a s s to person or property, m u s t be b ro u g h t
w ith in six years. S tatutes of lim itatio n are m ade applicable to e q u it
able as w ell as legal dem ands, b u t do n o t ru n against direct trusts. A ny
agreem ent o r stip u la tio n to shorten th e period prescribed by law fo r th e
bringing of any action is void.
L i m i t e d o r S p e c i a l P a r t n e r s h i p s . L im ite d partnerships m ay be
form ed by com pliance w ith th e term s of th e statute. T he persons desir
ing to form one, m u st m ake and sign a certificate, show ing: (1) T he p a rt
nership nam e; (2) T he general n ature of th e proposed business; (3) T he
nam es of all" partners,, distinctly show ing who are special partners and
w ho are general partn ers; (4) T he am ount of capital contributed b y each
spècial p a rtn e r; (5) T he date of com m encem ent and term in atio n of the
partnership. T h is certificate m u st be acknow ledged, a nd th e original or
a tra n s c rip t of it filed a n d recorded in th e office of th e p ro b a te judge of
each county w here th e partnership has a place o f business. Affidavit
show ing paym ent of th e contributions of each special p a rtn e r m u st be
filed w ith it. U ntil then, th e partnership is no t com plete. G eneral
p artn ers are liable for all debts, as in other partnerships, and they alone
m anage th e business of the concern. Publication of th e te rm s of p a rtn e r
ship m u st be m ade in tw o papers, designated by th e judge of probate, for
six w eeks, otherw ise the p a rtnership w ill be deem ed a general one. F ra u d
or falsehood in th e required statem ent, o r otherw ise in th e business, th e
giving of preferences by th e partnership, th e use of th e special p a rtn e r’s
nam e, if w ith th e consent or know ledge of th e special p artn er, m ak e him
liab le as a general p artner, as do also any m aterial alterations, w ith h is
consent a n a know ledge, in th e m em bership, business, o r assets of th e
partnership. A cting in good fa ith a nd conform ably to law, th e special
p a rtn e r is liable only to the ex te n t of his capital invested, n o p a rt of w hich
can be w ithdraw n u n til all partnership liabilities are satisfied. D issolu
tions of such p artn e rsh ip s can be m ade only a fte r th re e w eeks’ notice,
filed a nd published th re e w eeks in a new spaper in , or n e a re s t to, each
county w here the p a rtnership has a place of business.
M a r r i e d W o m e n . T he w ife has full legal capacity to c o n tra c t as if
she w ere s o l e , except th a t she can n o t alienate or en cu m b er h e r real
e sta te w ith o u t th e husband jo ining in th e conveyance, u n le ss th e hu sb an d
be insane or has abandoned her, or is a non-resident, or has been a con
vict in th e penitentiary fo r tw o years under a sentence for seven years, in
w hich cases th e w ife m ay convey it as if she w ere s o l e .
H usband a nd wife m ay contract w ith each other, b u t th e w ife
can n o t be surety for th e husband. A ll o f th e property a n d th e earnings
of th e w ife are h e r separate estate, and are n o t liable fo r th e debts of th e
husband. T he wife m ust sue and be sued alone fo r all m a tte rs re la tin g
to her separate estate or contracts, and fo r all to rts to h er person or p ro p
erty. T he chancery court has pow er to relieve of a ny or all d isabilities
of coverture.
M in e s a n d M in in g . A system of regulations fo r m ines a nd m ining
has been adopted (Code 1896, Secs. 2899-2936, A cts 1896-7, pp. 1099-1112),
th e num erous and m inute provisions of w hich m ay be there fo u n d . T hey
are hardly capable of intelligible condensation.
M o r t g a g e s are ex ec u te d a n a acknow ledged in th e sam e m a n n e r as
deeds. M ay be foreclosed b y b ill in e q uity, or, i f th e re be a p ro v isio n to
th a t effect, by sale u n d e r pow er, u p o n su ch d e fa u lt as au th o rizes a sale.
A ll m ortgages are void a g a in s t cre d ito rs or p u rc h a se rs w ith o u t no tice,
u n le ss recorded w ith in th e tim e prescribed by statu te. H om estead re a lty
can n o t b e m ortgaged or otherw ise alien ed w ith o u t th e voluntary signa
tu re a n d assen t of wife, evidenced b y acknow ledgm ent, u pon p riv a te
ex am in atio n sep arate and a p a rt from th e h u sb an d , an d certified. All
m ortgages m u st be in w ritin g , signed b y th e m ortgagor. P ay m en t of
m ortgage debt, m ade before or a fte r m a tu rity of debt, revests in the
m ortgagor, or h is assigns, th e title to th e re a l o r personal property
m ortgaged, if m ade in th e lifetim e of th e m o rtg ag o r; if m ade a fte r
h is death, su ch paym ent revests title to personal property in th e per
sonal representative, a n d title to re a lty in th e h e irs, devisees, or legatees
1170
BANKING AND COMMERCIAL LAWS—ALABAMA.
o f th e m ortgagor. C h attel m ortgages m u s t h e in w ritin g . W hen th e
m o rtgagor is su ed h y th e m ortgagee fo r possession o f th e m ortgaged prop
erty , ue m ay defend by show ing paym ent of th e d ebt, o r p a rt paym ent
an d a ten d er of th e balance, o r m ay pay i t after ju d g m e n t.
N o t a r i e s P u b l i c . T h e G overnor of th e S tate may ap p o in t a com petent
num ber of com m ercial n o taries public, in each co u n ty in th e State, w hose
term of officeis th ree years. There is no lim it to th e ir n u m b er prescribed
b y th e statu te. W om en are eligible. T h ese n o taries are required to give
bon d a n d keep an official seal a n d register. They are invested w ith all
th e authority and powers conferred by comm ercial usage, a n d th e law s of
th is State; and m ay adm inister a n d certify oaths; ta k e acknow ledgm ent
a n d proof of conveyances, a n d in stru m en ts relatin g to com m erce and navi
g atio n and certify th e sam e; a n d d em an d acceptance a n d paym ent of all
com m ercial paper, p ro test th e sam e for non-acceptance a n d non-paym ent,
an d give notice th ereo f as req u ied by law . In add itio n to th ese com m er
cial notaries, one m ay be appointed in each precinct, an d one in each w ard
o f any tow n o r city o f over 5,000 in h ab itan ts, w ho shall have a nd exercise,
besides th e usual pow ers of a n o tary public, th e same pow ers and ju risd ic
tio n , w ith in his p recin ct or w ard, as ju stices of th e peace.
N o t e s a n d B i l l s o f E x c h a n g e . P ro m isso ry n o te s an d bonds p ay
ab le in m oney a t a b a n k o r p riv ate banking house, or a certain place of pay
m e n t th e re in d e sig n a te d , an d b ills o f exchange, are g o v erned b y com
m e rc ia l law an d are n eg o tiab le in s tru m e n ts . A ll o th er in s tru m e n ts
p ay ab le in m o n ey a t a b a n k o r p riv a te b a n k in g house, o r a c erta in place
o f p ay m en t th e re in d esignated, are governed by th e com m ercial law as
to day s o f grace, p ro test, a n d n otice. A ll b o n d s, c o n tra c ts, a n d w rit
in g s, for p a y m e n t o f m o n ey o r any o th e r th in g , o r th e perform ance
o f a n y a c t o r d u ty , are a ssig n a b le b y in d o rsem en t so as to a u th o riz e
a n a ctio n th e re o n by each successive in d o rsee. A cceptances o f b ills
o f .exchange m u s t b e in w ritin g , b u t an u n co n d itio n a l w ritte n p ro m ise
to accep t a b ill b efo re i t is d raw n is an actu al accep tance, a n d any
p e rso n u p o n w hom a b ill is d raw n a n d to w hom th e sam e is delivered
for acceptance, w ho refu ses to re tu rn i t w ith in tw en ty -fo u r h ours after
su ch delivery, o r w ith in su c h o th e r period as th e holder m ay allow to
re tu rn th e b ill accepted o r n o n -accep ted ,is deem ed to have acc e n te d it.
P o w e r s o f A t t o r n e y . P o w ers ol atto rn e y o r o th e r in stru m e n ts con
ferrin g a u th o rity to convey p ro p erty m ay b e p roved o r acknow ledged in
th e sam e m an n er a n d m u st be received as evidence to th e sam e e x te n t as
conveyances ( s e e C o n v e y a n c e s ) , and m u st be executed as conveyances.
A pow er ol atto rn ey to re lin q u ish dow er m u s t be ex ecu ted by h u sband
a n a w ife jo in tly . H er sig n a tu re m u s t be a tte ste d by tw o w itnesses, w ho
a re able to w rite o r acknow ledge as req u ired for conveyances of la n d .
P r o b a t e L a w . A co u rt of p ro b a te , co n sistin g o f one ju d g e , is es
tab lish ed for each county in th e S tate. T h is c o u rt h a s ju risd ictio n of th e
pro b ate o f w ills, of g ra n tin g le tte rs te stam e n ta ry and of a d m in istra tio n ,
an d th e rep eal o r revocation of th e sam e; o f th e settlem en ts of accounts
o f executors a n d ad m in istrato rs, of th e sale and d isp o sitio n o f th e real
a n d personal p ro p erty belonging to , and th e d istrib u tio n of, in te state s’
estates. Also of th e a p p o in tm en t, rem oval, a n d settlem e n ts of guardians
fo r m inors and p erso n s o f u n so u n d m ind, th e b in d in g o u t of a p p re n tic es,
th e allo tm e n t o f dow er, an d th e p a rtitio n o f lan d belonging to jo in t
ow ners. A co u rt o f p ro b ate m u st b e held a t th e co u rt h ouse o f each
co u n ty on th e second M onday of each m onth, and th e ju dge m ay h o ld
special o r ad jo u rn ed term s .whenever necessary, b u t su ch court m u s t a t
all tim e s b e considered open, ex cep t on Sundays.
P r o t e s t . In d o rse rs o f bills o f ex ch an g e o r n o te s p ayable in m oney
a t a b a n k o r p riv a te b a n k in g house are ch arg ed b y th e general rules of
com m ercial law . T o charge th e in d o rse r of p ap er, n o t com m ercial, suit
m u st b e b ro u g h t a g ain st th e m a k e r to first co u rt. D am ag es on b ills o f
exchange, w h eth er foreign or inland, p ro tested for non-acceptance or
n o n -p ay m en t, are 5 p e r c e n t on th e su m d raw n for. B ut th e holder
m ay recover costs o f protest, in cu rred previous to a n d a t th e tim e o f
giving n o tice of non-paym ent, and legal in te re s t u pon th e aggregate
a m o u n t of th e prin cip al sum specified in su ch bill, an d o f th e dam ages
th ereo n .
R e c o r d s . A ll co u rts o f general ju risd ic tio n k eep th e records of th eir
ow n proceedings. T h e records of conveyances, deeds, m ortgages, s ta tu
to ry lie n s . docketed judgm ents, m arriages, wills, estrays, tax-assessm ents,
a n d tax-sales, are k e p t m th e office o f th e p ro b a te ju d g e o f each county.
P e tty courts, th o u g h n o t co u rts o f record, are req u ired to k e ep dockets
w hose entries show th e ir proceedings.
R e d e m p t i o n . B eal e sta te sold n n d e r execution, m ortgage, deed of
tru s t o r decree in chancery, m ay be redeem ed w ith in tw o years fro m th e
d ate of sale by th e d eb to r, his vendee, ju n io r m ortgagee, o r assignee of th e
equity o f redem ption, b y p aym ent of th e purchase-m oney, w ith 10 per
cen t p er an n u m th ereon, a n d all oth er law ful charges, w hich include tax es
p a id , a n d any balance due on th e m ortgage d ebt, if th e m ortgagee pu r
ch ased a t his ow n foreclosure sale. T en d er of th e am ount rig h tly due
fo r redem ption has th e effect to d iv e st th e title ou t of th e purchaser a nd
in v est it in th e d ebtor, o r w hoever m ay rig h tly claim to redeem u n d e r
him . T h is rig h t to redeem w ith in tw o years is conditioned upon th e deliv
ery o f th e p ro p e rty to its p u rch aser on dem and, w ith in te n days a fte r th e
sale T h e purchaser, on p ro p e r tender, m u st convey to th e r deem er
su ch title as he acquired; an d if th e larnl h a s b een delivered to him , give
up th e possession; an d if h e refuses to do so, th e possession m ay be re
covered b y an action o f unlaw ful d etainer. Ju d g m e n t creditors of th e
d eb to r, oth er th a n those b y confession, collusion, o r frau d , m ay, w ithin
tw o years fro m sale, redeem in lik e m anner, by p ay in g purchase-m oney
bid a t th e sale, 10 p e r cen t p er annum th ereon, a n d all law ful charges,
an d b y fu rth er cred itin g th e debtor u p o n a su b sistin g ju d g m ent, w ith a t
least 10 p er c en t o f th e am o u n t originally bid fo r th e land. T h e p u r
chaser, how ever, m a y m eet th is credit, by m a k in g an equal credit on a
su b sistin g ju d g m e n t ag ain st th e d ebtor, a n d re ta in th e la n d purchased,
u n less th e proposed redeem er w ill g iv e a fu rth er c re d it o f a t least 10 per
cen t on a su b sistin g jud g m en t ag ain st th e debtor, w hich m ay be m et again
by th e purchaser, b y a like cred it, a n d so on H eirs o r personal rep re
sentatives of eith er th e debtor, o r those d eriving rig h t to redeem from
h im , o r o f ju d g m e n t cred ito rs m ay ex ercise th e rig h ts o f re d e m p tio n of
those u n d e r w hom th e y respectively claim . T h e debtor, or those stan d
in g in h is rig h t, m ay redeem from a ju d g m e n t creditor w ho has redeem ed,
a n d so also m ay an o th er ju d g m e n t creditor. T h e v alu e o f all p erm anent
im provem ents m ade by th e p u rch aser is p a rt of th e cost of redem ption.
T h e rig h t o f ju d g m e n t creditors to redeem does n o t depend on th e rig h t o f
th e debtor to do so.
R e p l e v i n . T h e com m on, law action o f rep lev in is n o t used in th is
S tate, b u t a sim ila r action called d etin u e is.
R e v i s i o n . T h e C onstitu tio n m akes it th e d u ty o f th e legislature to
provide, in every perio d o f te n years, fo r th e revision, digesting, a nd p ro
m u lg atio n o f all statu tes o f th is S tate of a general n atu re. T h e first code
w as adopted in 1853. Since th en , th e re have been revisions in th e years
1867,1876,1886, a n d 1896.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
S e r v i c e . T he sheriff is th e chief executive officer in each county, and
in person, or by deputy, m ay execute all process from courts of record
or p etty S tate courts. Process of m unicipal courts is executed usually by
city m arshals, th e ir deputies, or policem en. T he process of justices’ and
n otaries’ co u rts is usually executed by constables or th e ir deputies.
O riginal process in civil actions and chancery suits is executed, when the
d efen d an t i esides w ith in th e S tate, by personal service. If defendants
live in several different counties, suit m ay commence in any one of these,
a n d all defendants be bro u g h t in by bran ch process. Corporations may
he served by perconal service on the president, secretary, cashier, station
a se n t, or any o th er agent th ereo f. Lessee of any railroad, using same,
m ay be served b y execution of process on a ny station agent or person in
charge o f depot on its line. A foreign corporation m ay be served by exe
c u tin g process on any designated a gent tra n sa c tin g its business in this
State. B oth corporations and individuals w ho can n o t be served person
ally m ay be brought in by publication. In fa n ts m ay be served personally,
o r by service on th e p arents or guardians, or on persons having charge of
them , or otherw ise, if so directed by c o u rt o f chancery. Lunatics are
served by personal arrest, o r service on those in charge of them. The
county is served by execution of process on th e pro b ate judge. Keceivers
m ay be served personally, or, if n o t found in th e S ta te , by service on any
a g en t in th e ir em ploym ent w ith in the S tate Subpoenas to witnesses may
fie le ft a t the residence of the w itness, b u t issued in te rm tim e, m ust he
served personally on him .
S u i t s . E very action, e x ce p t u p o n b ills of exchange, negotiable in
stru m e n ts, etc., as above, founded o n ex p ress or im p lied co n tract for the
p aym ent of m oney, m u s t be b ro u g h t in th e n am e of th e p erso n really In
te re ste d , w h e th er he have th e legal title o r n o t. ( S e e C o u r t s . ) Security
for costs of s u it is re q u ire d o f n on-residents o f th e State, and may he
given by acknow ledgm ent signed b v security, indorsed o n the com
p la in t o r w rit, approved b y th e officer issu in g th e sa fiie ; or by de
posit o f m oney w ith clerk of c o u rt in w hich s u it is brought, the
a m o u n t to b e determ ined by th e c o u rt or officer ta k in g th e security,
a nd sam e to be increased from tim e to tim e as necessary to cover costs.
U pon failure to give such security re q u ire d by th e co u rt, upo n motion
therefor, s u it dism issed a t c ost of th e atto rn e y d irectin g process to he
Issued.
T a x e s becom e d e lin q u e n t on th e 31st of D ecem ber o f th e year for
w h ic h th e y w ere lev ied , a n d th e la n d s m ay b e sold by certain proceed
ings in th e pro b ate c o u rt com m enced in th e m o n th of M arch fol
lo w ing. T h e p u rc h a se r of lands sold fo r d e lin q u e n t ta x e s receives
from th e collector a certificate o f purchase, co n tain in g a description
of th e p ro p e rty , th e d ate an d am o u n t of a sssessm ent, tax es, costs,
fees, e tc ., w hich a fte r th e expiratio n of tw o y e ars from th e date of
th e sale is exchangeable fo r a deed from th e probate ju d g e —which is
p rim a facie evidence of title. L ands sold fo r tax es m ay be redeemed
w ithin tw o years by th e ow ner, m o rtg ag ee, o r any person having a bene
ficial in terest therein, b y d ep o sitin g w ith th e pro b ate judge of th#
county in w hich th e la n d s w ere sold, th e a m o u n t of p u rch ase money,
w ith in te re s t a t 15 p e r c en t p e r an n u m , a n d all ta x e s w hich have
accrued su b se q u e n t to th e sale , an d in te re s t thereon a t 8 p er cent per
an n u m ; also a ll costs a nd charges. W henever la n d is sold fo r State or
c o u n ty ta x e s, an d from a n y cause su c h sale is invalid to pass title
to p u rc h a se r, sale operates as tra n sfe r to p u rch aser o f lien of S tate or
county, or th e p ro p e rty for p a y m e n t o f ta x e s fo r w hich sold. All cotton
factories o r c o tto n m ills w hich sh all be constructed in th is S tate within
five years shall be exem pt from tax atio n for a period of te n years, pro
vided such m ills reDresent a n in vestm ent of S50,000.
T e s tim o n y . (S e e D e p o s itio n s a n d E v id e n c e .)
T r a n s f e r o f C o r p o r a t i o n S to c k . Shares in p rivate corporations
arc personal property. T hey are transferable on the books of the corpor
a tio n as is re q u ire d b y its by-laws, ru le s, and regulations. I f required
th a t they be transferred upon th e book o r books of th e corporation, trans
fers otherw ise m ade a re good betw een th e parties b u t invalid as to
creditors or pu rch asers w ithout notice, except from th e tim e such trans-,
fer shall have been registered or m ade o n th e books of th e corporation.
I t is the d uty of every corporation to require tra n sfe rs of its stock to he
registered on its books.
T r u s t C o m p a n i e s . N o general legislation h a s been enacted in this
S tate respecting tru s t com panies by nam e. Provision has been made for the
incorporation of a ny tw o or m ore persons associating them selves for the
carrying on of “ any industrial b u sin ess,” or fo r “ any law ful enterprise,
if n o t otherw ise provided fo r b y law . Corporations th u s organized are
authorized to have a capital stock n o t exceeding $10,000,000; to have
succession by th e corporate nam e fo r tw e n ty y ears; to sue and be sued;
to have a corporate seal; to hold, purchase, a n d dispose o f such real
a nd personal pro p erty as th e n ature of th e ir business m ay require; to have
p ro p e r a nd suitable-officers; to borrow m oney and m ortgage or pledge
th e ir property to secure th e sam e, b u t n o t to a m o u n t exceeding their cap
ita l sto ck , n o r a t a greater ra te of interest th a n 8 p e r cent; and gen
erally to carry on th e business or accom plish th e purposes expressed in
th e declaration fo r incorporation. C om panies th u s organized for the pur.pose of buying, selling, or im proving lands, have, in addition, power to
invest th e ir m oney in any o th er p ro p e rty o r assets, in enterprises they
deem calculated to advance th e ir interests, or to loan m oney o r property
to in dividuals o r corporations buying, leasing, or m ak in g improvements
on o r n e a r th e ir lands, and to receive certificates of stock, notes, bonds,
m ortgages, or other security fo r such investm ents or loans. T he charters
of such corporations m ay be renew ed b y th e c o nsent of a majority,m
•vtlue of th e ir stockholders duly expressed. Savings a nd tr u s t companies
by nam e have been in c o rp o ra te d by special acts, w ith very am ple powers
and franchises, w hich are contained a nd set o u t in each p articu lar charter,
an d o ften peculiar thereto. A m ong th e pow ers th u s conferred are those
of sav in g banks, trustees, guardians, a d m inistrators, m ak in g bonds as
surety, a nd m any others.
W a r e h o u s e R e c e i p t s . F o r property actually delivered to him, a
w arehousem an m ay give receipts, w hich, un less plainly m arked noi
negotiable,” m ay be tran sferred by endorsem ent thereof; a nd the trans
feree m u st be ta k e n a nd deem ed to be th e ow ner th e re o f , so as to make a
valid pledge, lien, or tra n sfe r of th e sam e; subject, how ever, to the lien oi
landlords for re n t or advances, a nd o th er liens thereon created by con
tra c t, of w hich notice has been given d u ly by registration. U nless markea
plainly “ n o t negotiable,” th e w arehousem an is forbidden to deliver tilings
o r property th erein specified, except upon th e delivery a nd cancellation,
w holly o r in p a rt, o f such receipt.
W ill» . A ll w ills of real o r personal p ro p e rty m u s t be in w riting signed
by th e te s ta to r in presence of tw o w itnesses. U nw ritten w ill of per
sonal property valid only w hen the property does n o t exceed $ 5uum
value, an d m u st be m ade d u rin g la st sick n ess by te stato r a t h is home.
P ersons present m u st b e called on to w itness th a t it is te sta to r’s will ana
m u st be reduced to w ritin g by one o f th e w itnesses w ith in six aaysM inor over eighteen m ay m ake a w ill of personal property. No wi
effective u n til p robated. M ay b e contested in pro b ate or chancery court.
BANKING AND COMMERCIAL LAWS—ALASKA.
S Y N O P S IS
O F
T H E
LA W S
O F
A LA SK A
R E L A T IN G ! T O
BANKING AND COMMERCIAL USAGES.
A c k n o w l e d g m e n ts . ( .S e e D e e d s . )
A c tio n s . T h e d istin c tio n b e tw ee n a ctio n s a t law a n d s u its in e q u ity
and all form s of p lead in g h e re to fo re ex istin g in a ctio n s a t law a n d
suits in e q u ity a re abolished, a n d th e re is b u t o ne fo rm of a ctio n ,
denom inated a civil a ctio n , fo r th e e n fo rcem en t o r p ro te c tio n of p ri
vate rig h ts a n d th e red ress o r p re v e n tio n of p riv a te w rongs. E v e ry
action m u st b e p ro se cu te d in th e n a m e of th e re a l p a r ty in in te re s t,
except th a t a n a d m in is tra to r o r e x ec u to r, a tru s te e of a n ex p ress tr u s t,
or a person ex p ressly a u th o riz e d b y s ta tu te m a y su e w ith o u t jo in in g
with h im th e p erso n fo r w hose b en efit th e a c tio n is p ro se cu te d ; b u t th e
assignment of a th in g in a c tio n n o t a risin g o u t of c o n tra c t is n o t
authorized.
A ffid a v its. A n a ffid a v it o r d e p o sitio n ta k e n o u t of A lask a, o th e r
w i s e th a n u p o n com m ission, m u s t b e a u th e n tic a te d a s follow s: 1 . I t m u s t
be certified b y a com m issioner a p p o in te d b y th e g o v ern o r of A laska
to ta k e affid av its a n d dep o sitio n s in th e S ta te , te rrito ry , d is tric t,
or country w here ta k e n ; or, 2, i t m u s t b e certified b y a ju d g e of a c o u rt
of record h a v in g a clerk a n d a seal to h a v e b e en ta k e n a n d su b scrib ed
before him a t a tim e a n d p lace th e re in specified, a n d th e ex isten ce of
the court, th e fa c t t h a t su ch ju d g e is a m e m b e r th e re o f, a n d th e g en
uineness of h is sig n a tu re m u s t b e certified b y th e clerk of th e c o u rt,
under th e seal th e re o f. I n a ll affid av its o r dep o sitio n s w itn ess sho u ld
speak in th e first p erson.
A lle n s. A n y a lie n w ho is a b o n a f i d e re s id e n t of th e U n ite d
States, o r w ho h a s declared h is in te n tio n to b ecom e a c itizen , o r w hose
rights a re secu red b y tr e a ty , m a y a cq u ire a n d h o ld la n d s u p o n th e
poma te rm s a s a citizen . A n y alien m a y a cq u ire la n d s b y in h e rita n c e
or in th e o rd in a ry course of ju stic e in th e collection of d e b ts, a n d m a y
acquire a n d enforce lien s u p o n la n d s, b u t su ch la n d s m u s t b e sold
within te n y e ars. A n y a lie n m a y also a cq u ire a n d h o ld lo ts o r p arcels
of land in a n y in c o rp o ra te d o r p la tte d c ity , to w n , o r v illage, o r in a n y
mine or m in in g claim , b u t is n o t a u th o riz e d to a cq u ire title fro m th e
United S ta te s to a n y of th e p u b lic la n d s
A r r e s t. T h e d e fe n d a n t m a y b e a rre s te d in th e follow ing civil
actions: 1. F o r th e re c o v ery of m o n e y o r d am ag es w h en th e defend
ant is a b o u t to rem o v e fro m th e d is tric t w ith in te n t to d e fra u d h is
creditors; fo r a n in ju r y to p e rso n ; o r fo r w illfully in ju rin g o r w rong
fully ta k in g , d e ta in in g , o r c o n v e rtin g p ro p e rty . 2. F o r a fine o r
penalty; o r fo r m o n ey o r p ro p e rty em bezzled o r fra u d u le n tly m is
applied or c o n v erte d to h is o w n use b y a p u b lic officer, o r b y a n a tto r
ney, or b y a n officer o r a g e n t of a c o rp o ra tio n in th e course of his
employm ent a s su ch , o r b y a n y a g en t, b ro k e r, o r o th e r p erso n in a
fiduciary c a p a c ity ; o r fo r a n y m isc o n d u ct o r neglect in office o r in a
professional e m p lo y m e n t. 3. T o reco v er th e possession of p e rso n al
property u n ju s tly d e ta in e d , w h en th e p ro p e rty o r a n y p a r t th e re o f
has been concealed, rem o v ed , o r disposed of, so t h a t i t c a n n o t b e fo u n d
or ta k e n b y th e m a rsh al, a n d w ith in te n t t h a t i t sh o u ld n o t b e so
found o r ta k e n , o r w ith th e in te n t to d e p riv e th e p la in tiff of th e
benefit th ereo f. 4. W h en th e d e fe n d a n t h a s b e en g u ilty of fr a u d m
contracting a d e b t, o r in c u rrin g th e o b lig a tio n fo r w h ich th e a c tio n is
brought, o r in concealing o r disp o sin g of th e p ro p e rty fo r th e ta k in g ,
detention, o r co n v ersio n of w h ich th e a c tio n is b ro u g h t. 5. W h en th e
defendant h a s re m o v e d o r dispo sed of h is p ro p e rty , o r is a b o u t to do
bo, w ith in te n t to d e fra u d h is c re d ito rs.
A t t a c h m e n t . T h e p lain tiff, a t th e tim e of issu in g th e sum m ons
or afterw ard s, m a y h a v e th e p ro p e rty of d e fe n d a n t a tta c h e d in a n
action u p o n a c o n tra c t, ex p ress o r im p lied , fo r th e d ire c t p a y m e n t of
money, a n d , 1, w hich is n o t secured b y m o rtg ag e, lien, o r pledge u p o n
real or perso n al p ro p e rty , o r if so secured, w h en th e se c u rity h a s b e en
rendered n u g a to ry b y th e a c t of th e d e fe n d a n t; o r, 2, a g a in st a n o n
resident d e fe n d an t. T h e w rit issues w h en ev er th e p lain tiff, o r a n y
one in his beh alf, files a n affid av it show ing t h a t d e fe n d a n t is in d e b te d
to plaintiff (specifying th e a m o u n t of in d e b te d n ess o v e r a n d a b o v e all
legal set-offs o r co u n ter-claim s) u p o n a c o n tra c t, e x p re ss o r im plied,
for th e d ire c t p a y m e n t of m o n e y ; t h a t th e p a y m e n t h a s n o t b e en
secured b y m o rtg ag e , lien, o r pledge u p o n re a l o r p e rso n al p ro p e rty ;
and th a t th e su m fo r w h ich a tta c h m e n t is a sk e d is a n a c tu a l, b o n a f i d e ,
existing d e b t d u e a n d ow ing fro m p la in tiff to d e fe n d a n t ; a n d t n a t tn e
attachm ent is n o t s o u g h t n o r th e a c tio n p ro se c u te d to h in d e r, d elay,
or defraud a n y c re d ito r of th e defendant.^ P la in tiff m u s t also file a n
undertaking, w ith one o r m o re su reties, in a su m n o t less th a n one
hundred dollars, a n d e q u a l to th e a m o u n t fo r w h ich h e d em an d s
judgment, co n d itio n e d t h a t p la in tiff w ill p a y all c o sts a d ju d g e d a n d
all dam ages su sta in e d b y re a so n of th e a tta c h m e n t if th e sam e be
wrongful o r w ith o u t sufficient cause, n o t ex ceed in g th e a m o u n t
specified.
C h a tte l M o r t g a g e s . A n y in te re s t in p e rso n al p roperty.^ c ap a
ble of b e ing tra n s fe rre d , m a y b e m o rtg a g e d ; b u t th e m o rtg a g e is v o id
as against c re d ito rs a n d su b se q u e n t p u rc h a se rs a n d in c u m b ra n c ers in
good fa ith a n d fo r v alu e, unless possession of th e p ro p e rty b e d elivered
to and re ta in e d b y th e m o rtg ag ee o r th e m o rtg ag e p ro v id e t h a t th e
property m a y re m a in in th e possession of th e m o rtg ag o r a n d be
accom panied b y th e affid av it of all th e p a rtie s th e re to t h a t th e sam e is
made in good fa ith to secure th e a m o u n t n a m e d th e re in , a n d w ith o u t
design to h in d e r, d elay , o r d e fra u d cred ito rs, a n d b e acknow ledged
and filed. T h e m o rtg ag e m u s t b e acknow ledged^ b y th e n io rtg ag o r
as a convey an ce of re a l p ro p e rty is a n d b e filed in th e office of th e
recorder of th e p re c in c t w here th e m o rtg a g o r resid es a n d of th e p re
cinct w here th e p ro p e rty is. W ith in th i r t y d a y s n e x t p reced in g th e
expiration of one y e a r fro m th e filing, a tr u e co p y of th e m o rtg ag e, w ith
a verified s ta te m e n t of th e in te re s t of th e m o rtg ag ee in th e p ro p e rty
at th e tim e th e sam e is ren ew ed , m u s t b e filed in th e office w h ere th e
original w as filed, a n d th e lie n is th e re b y e x te n d e d a n o th e r y e ar. C h a tte l
mortgages a re foreclosed in th e sam e m a n n e r a s m o rtg ag es a n d h en s
upon re a l p ro p e rty , b u t a clau se m a y b e in s e rte d in a m o rtg ag e a u th o r
izing th e m a rs h a l to e x ec u te th e p o w er of sale th e re in g ra n te d to th e
mortgagee.
Corporations. D o m e s t i c C o r p o r a t i o n s . T h ree o r m o re a d u lt p e r
sons, b o n a f i d e re sid e n ts of th e d is tric t, m a y fo rm a c o rp o ra tio n fo r
the follow ing p u rp o se s: T o c o n stru c t, ow n, a n d o p e ra te ra ilro ad s,
tram w ays, s tre e t railw ay s, w ag o n ro ad s, flum es, a n d te le g ra p h a n d
telephone lin es in A la sk a ; to acq u ire, h o ld , a n d o p e ra te m ines in
Alaska; to c a rry o n th e fishing in d u s try in A la sk a a n d th e w a ters
adjacent a n d c o n tig u o u s th e re to ; to c o n stru c t a n d o p e ra te sm elters,
electric a n d o th e r p o w er a n d lig h tin g p la n ts , docks, w h arv es, e lev ato rs,
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1171
w arehouses, a n d h o tels in A la sk a ; a n d to c a rry on tra d e ,, tra n s p o rta
tio n , a g ric u ltu re , lu m bering, a n d m a n u fa c tu rin g i n A laska.
F o r e ig n C o r p o r a tio n s .
E v e ry c o rp o ra tio n o r jo in t s to ck c o m p a n y
organized u n d e r th e law s of th e U n ite d S ta te s o r a n y s ta te o r te rrito ry
shall, before doing b usiness w ith in th e d is tric t, file in th e office of th e
sec re ta ry of th e d is tric t a n d in th e office of th e clerk of th e d is tric t
c o u rt fo r th e division w herein i t in te n d s to c a rry o n b usiness a. d u ly
a u th e n tic a te d copy of its c h a rte r o r a rtic le s of in c o rp o ra tio n , a n d also
a s ta te m e n t verified b y th e o a th of its p re sid e n t a n d se c re ta ry a n d
a tte s te d b y a m a jo rity of its b o a rd of d irectors.
D e e d s . A conveyance of la n d s, o r of a n y e s ta te o r in te re s t th e re in ,
m a y be m a d e b y deed, signed a n d sealed b y th e p erso n fro m w hom
th e e s ta te o r in te re s t is in te n d e d to pass, a n d acknow ledged o r p ro v e d ,
a n d recorded, w ith o u t a n y o th e r a c t o r cerem ony. A q u it-cla im deed
passes all th e e s ta te w hich th e g ra n to r c o uld convey b y deed of b a rg a in
a n d sale. N o co v en a n ts a re im plied in a n y conveyance. T h e te rm
“ h e irs ,” o r o th e r w ords of in h e rita n c e, a re n o t necessary to c re a te or
c o n v ey a n e s ta te in fee sim ple. H u sb a n d a n d w ife m a y , b y th e ir
jo in t deed, con v ey th e re a l e sta te of th e w ife, in like m a n n e r a s she
m ig h t do b y h e r se p a ra te deed if she w ere u n m a rried . A m a rrie d
w o m an residing in th e d istric t, jo ining h e r h u s b a n d in a deed, m u s t
acknow ledge t h a t she e x e c u te d such deed freely a n d v o lu n ta rily .
W h en a m a rrie d w o m an n o t residing in th e d is tric t join s h e r h u s b a n d
in conveying re a l e s ta te s itu a te in th e d istric t, th e conveyance h a s th e
sam e effect a s if she w ere sole, a n d th e acknow ledgm ent o r proof o f th e
ex ec u tio n m a y b e m ad e th e sam e as if she w ere sole. _ W ith in th e
d is tric t deeds m u s t b e e x ec u te d in th e presence of tw o w itnesses, w ho
shall subscribe th e ir n am es a s su ch ; a n d th e p erso n e x ec u tin g a deed
m a y acknow ledge th e e x ec u tio n before a ju d g e, clerk of th e d is tric t
c o u rt, n o ta ry public, o r com m issioner w ith in th e d istric t, a n d th e
officer ta k in g th e ackno w led g m en t m u s t indorse th e re o n a certificate
of ackno w led g m en t a n d th e tr u e d a te of m a k in g th e sam e u n d e r h is
hand.
D e p o s iti o n s ,
T h e te stim o n y of a w itness, i n t h e d i s t r i c t , m a y
be ta k e n b y deposition, in a n a ctio n , a t a n y tim e a fte r th e service of
th e sum m ons or th e ap p ea ra n c e of th e d e fe n d an t, a n d m a special
proceeding a fte r a q u e stio n of fa c t h a s arisen, w hen, 1, th e w itn ess is
a p a r ty to th e a c tio n or proceeding, b y th e oppo site p a r ty ; 2, th e
w itn ess’s residence is m ore th a n one h u n d re d m iles fro m th e place of
tr ia l; 3, th e w itn ess is a b o u t to go m ore th a n one h u n d re d m iles bey o n d
th e place of tria l; 4, th e w itness is to o infirm to a tte n d th e tria l; or, o,
th e te stim o n y is re q u ire d u p o n a m o tio n , o r in a n y o th e r case w here
th e o ral e x a m in a tio n of th e w itness is n o t required.
T h e te stim o n y of a w itness, o u t o f t h e d i s t r i c t , m a y b e ta k e n b y dep o
sitio n , b y com m ission issued, u p o n five d a y s’ no tice to th e o th e r p a r ty ,
b y th e clerk of th e c o u rt, o r ju stic e of th e peace in a cause in his ow n
c o u rt, to a p erson agreed u p o n b y th e p a rtie s, or, if th e y do n o t agree,
to a judge, ju stic e of th e peace, n o ta ry public, o r clerk of a c o u rt
selected b y th e officer issuing th e com m ission.
.
,
T h e a m o u n t of th e com m issioner’s fees sh ould be in d o rse d u p o n th e
deposition.
D e sc e n t a n d D is trib u tio n ,
T h e re a l p ro p e rty of a n in te s ta te
descends as follow s: 1. I n e q u a l sh ares to h is o r her_children a n d to
th e issue of a n y deceased c hild b y rig h t of re p re s e n ta tio n ; a n d if th e re
be n o ch ild of in te s ta te liv in g a t th e tim e of h is o r h e r d e a th , to a ll h is
o r h e r o th e r lin e a l d e sc e n d an ts; a n d if all such d e sc e n d an ts a re in t h e
sam e degree of k in d re d to th e in te s ta te , th e y ta k e e q u ally ; o therw ise,
b y re p re se n ta tio n . 2. If in te s ta te leave no lineal d e sc e n d an ts, to h is
w ife; or if in te s ta te be a m a rrie d w om an, t o h e r h u s b a n d ; a n d if in te s
ta t e leave no w ife n o r h u sb an d , to h is o r h e r fa th e r. 3, I f in te s ta te
le a v e no lin e a l d escen d an ts, n e ith e r h u sb a n d n o r w ife, n o r fa th e r,
su ch re a l p ro p e rty descends in e q u al shares to h is b ro th e rs a n d siste rs,
a n d to th e issue of a n y deceased b ro th e r o r siste r b y rig h t of re p re s e n ta
tio n ; b u t if in te s ta te leave a m o th e r, she ta k e s a n e q u a l s h are w ith such
b ro th e rs and. sisters. 4. I f in te s ta te leave n o lin e a l d e sc e n d an ts,
n e ith e r h u s b a n d n o r w ife, n o r fa th e r, b ro th e r, n o r siste r, su ch re a l
p ro p e rty descends to b is m o th e r, to th e e xclusion of th e issue of
deceased b ro th e rs a n d sisters. 5. If in te s ta te leave no lin e a l descenda n ts, n e ith e r h u s b a n d n o r wife, n o r fa th e r, m o th e r, b ro th e r, n o r siste r,
such re a l p ro p e rty descends to h is n e x t of k in in e q u a l degree, e x c e p t
in g t h a t w h en th e re a re tw o or m ore co lla teral k in d re d in ecpial degree
b u t claim in g th ro u g h d ifferent a ncestors, th o se w ho c la im th ro u g h
th e n e a re st a n c e sto r a re p referred . 6. I f in te s ta te leav e one o r m o re
c h ild re n , a n d th e issue of one or m ore deceased ch ild re n , a n d a n y of
su ch su rv iv in g ch ild re n die u n d e r age w ith o u t h a v in g b e en m a rrie d ,
all su ch re a l p ro p e rty t h a t cam e to such deceased c h ild b y in h e rita n c e
fro m su ch in te s ta te descends in e q u al shares to th e o th e r c h ild re n of
such in te s ta te a n d to th e issue of a n y o th e r ch ild re n w ho h a v e died,
b y rig h t of re p re se n ta tio n . B u t if all th e o th e r c h ild re n of in te s ta te
b e d e ad , a n d a n y of th e m h a v e le ft issue, such re a l p ro p e rty so in h e r
ite d b y such deceased c hild descends to a ll th e issue of su ch o th e r
ch ild re n of th e in te s ta te in e q u a l shares, if th e y a re in thexsam e degree
of k in d re d to such deceased c h ild ; otherw ise, th e y ta k e b y r ig h t of
re p re se n ta tio n . 7. If in te s ta te leave no lin e a l d e sc e n d an ts or k in d re d ,
su ch real p ro p e rty esch eats to th e U n ite d S ta te s.
D iv o r c e , A m a rriag e p ro h ib ite d b y law o n a c c o u n t of co n sa n
g u in ity of p a rtie s, o r o n a cc o u n t of e ith e r h a v in g a fo rm er h u s b a n d
o r w ife th e n living, is, if solem nized w ith in th e D is tric t, a b so lu tely
void, a n d fo r a n y of such causes m a y b e d e clared v o id fro m th e b e g in
n in g , a t th e a c tio n of e ith e r p a rty .
,
T h e disso lu tio n of th e m a rriag e c o n tra c t m a y b e d e clared a t th e
a c tio n of th e in ju re d p a r ty fo r e ith e r of th e follow ing c au se s: 1. Im p o te n c y ex istin g a t th e tim e of th e m a rria g e a n d c o n tin u in g t o th e
com m encem ent of th e actio n . 2. A d u lte ry . 3. C onv ictio n of felony.
4. W illful de se rtio n fo r th e p e rio d of tw o y e ars. 5. C ruel a n d in h u m a n
tr e a tm e n t c a lcu la te d to im p a ir h e a lth o r e n d a n g e r life. 6. H a b itu a l
gross d ru n k e n n e ss c o n tra c te d since m a rria g e a n d c o n tin u in g fo r one
y e a r p rio r to th e com m encem ent of th e a ctio n . P la in tiff m u s t b e a n
in h a b ita n t of th e d is tric t a t th e c om m encem ent of th e a c tio n a n d fo r
tw o y e ars p rio r th e re to . N e ith e r p a r ty m a y m a rry a th ir d p e rso n
u n til th e a c tio n is d e te rm in e d u p o n a p p e a l o r th e tim e fo r ta k in g a n
a p p e a l h a s ex p ired .
D o w e r a n d C u r t e s y . T h e w idow of e v e ry d eceased person
is e n title d to dow er, or th e use d u rin g h e r n a tu ra l life o f o n e -th ird p a r t
in v a lu e of all th e la n d s w hereof h e r h u s b a n d d ie d seized of a n e s ta te
of in h e rita n c e.
W h en a n y m a n a n d h is w ife a re seized in h e r rig h t of a n y e s ta te of
in h e rita n c e in la n d s, th e h u s b a n d , o n th e d e a th of h is w ife, ho ld s th e
la n d s fo r h is life a s te n a n t th e re o f b y th e c u rte sy , a lth o u g h su ch h u s
b a n d a n d w ife m a y n o t hav e' h a d issue b o rn alive.
E v i d e n c e , N o p e rso n m a y b e e x clu d ed a s a w itn e ss o n a c c o u n t of
b e ing a p a r ty o r in te re s te d in th e e v e n t of a n a c tio n o r proceedings
h a v in g b e en c o n v ic ted of a crim e, o r h is o p inions on m a tte rs of religious
belief. P e rso n s of u n so u n d m in d a n d c h ild re n u n d e r te n y e a rs of age
w ho a p p e a r in c a p ab le of receiving ju s t im pressions of th e fa c t
1172
BANKING AND COMMERCIAL LAWS—ALASKA.
re sp ec tin g w h ich th e y a re e x am in ed o r of re la tin g th e m tr u ly m a y n o t
b e w itnesses. A n a tto rn e y m a y n o t, w ith o u t h is c lie n t’s co n sen t, be
e x am in ed a s to co m m u n icatio n s m a d e b y h is c lie n t to h im o r h is ad v ice
th e re o n . A p rie s t m a y n o t, w ith o u t th e c o n sen t of th e p erso n m a k in g
th e confession, b e e x am in ed as to a n y confession m a d e to h im in his
p ro fessio n al c ap a c ity , in th e course of d iscip lin e e n jo in e d b y th e c h u rc h
to w h ich h e belongs. A p h y sician o r su rg eo n m a y n o t, a g a in st th e
o b je c tio n of h is p a tie n t, b e e x am in ed , in a civil a ctio n , o r proceeding,
a s to in fo rm a tio n a c q u ire d in a tte n d in g th e p a tie n t w h ich w as neces
s a ry to e n ab le h im to p re scrib e o r a c t.
E x e c u t i o n s . (.S e e J u d g m e n t a n d E x e c u t i o n . ' )
E x e c u t o r s a n d A d m i n i s t r a t o r s . W h en a w ill is p ro v e n le tte rs
te s ta m e n ta ry a re issu e d to th e p e rso n s th e re in n a m e d a s e x ecutors,
o r to su ch of th e m a s g ive n o tic e of th e ir a c c e p ta n ce of th e tr u s t
a n d a re qualified. A d m in is tra tio n is g ra n te d a s follow s: 1. T o th e
w idow o r n e x t of k in , o r b o th , in th e d iscretio n of th e c o u r t; 2, to one
o r m o re of th e p rin c ip a l c re d ito rs ; or, 3, to a n y o th e r p erso n c o m p e te n t
a n d q u alified w hom th e c o u rt m a y select. I f deceased w ere a m a rrie d
w o m a n a d m in is tra tio n sh all in a n y case b e g ra n te d to th e h u sb a n d ,
if q u alified, a n d h e a p p ly th e re fo r. C laim s a re p a id in th e follow ing
o rd e r: 1. F u n e ra l ch arg es. 2. T a x e s d u e th e U n ite d S ta te s. 3.
E x p e n ses of la s t sickness. 4. A ll o th e r ta x e s. 5. D e b ts p re fe rred
b y th e law s of th e U n ite d S ta te s. 6. D e b ts w h ich a t th e d e a th of th e
d eceased w ere a lie n u p o n h is p ro p e rty , in th e o rd e r of th e p rio rity
of th e liens. 7. D e b ts d u e fo r w ages e a rn e d w ith in n in e ty d a y s
im m e d ia te ly p reced in g d e a th of d eced en t. 8. All o th e r claim s.
E x e m p tio n s .
1. E a rn in g s of ju d g m e n t d e b to r, fo r p e rso n al
serv ices re n d e re d w ith in s ix ty d a y s n e x t p reced in g th e le v y of execu
tio n o r a tta c h m e n t, w h en n ecessary fo r th e u se of h is fa m ily su p p o rte d
in w hole o r in p a r t b y h is la b o r. 2. B ooks, p ic tu re s, a n d m usical
in s tru m e n ts ow ned b y a n y p erso n , to th e v a lu e of seventy-five dollars.
3. N ecessary w e arin g a p p a re l ow n ed b y a n y p erso n fo r th e use of
h im self o r fa m ily , b u t w a tch e s o r jew elry ex ceed in g one h u n d re d
d o llars in v a lu e a re n o t e x e m p t
4. T h e to o ls, im p le m e n ts, a p p a ra tu s,
te a m , vehicle, h arn ess, o r lib r a r y n ecessary to e n ab le a n y p e rso n to
c a rry o n th e tra d e , o c cu p a tio n , o r p rofession b y w h ich su ch person
h a b itu a lly e a rn s h is liv in g , to th e v a lu e of five h u n d re d d o lla rs; also
sufficient q u a n tity of fo o d to s u p p o rt su ch te a m , if a n y , fo r six m o n th s ;
th e w o rd ‘‘t e a m ” b e in g c o n stru e d t o in c lu d e n o t m o re th a n one yoke
of o x en , o r a sp a n of h o rses o r m ules, o r tw o re in d e e r, o r six dogs.
5. T h e follow ing p ro p e rty , if ow n ed b y th e h e a d of a fa m ily a n d in
a c tu a l u se o r k e p t fo r use b y a n d fo r h is fam ily , o r w h en b e in g rem oved
fro m one h a b ita tio n to a n o th e r o n a ch an g e of resid en ce: T e n sheep,
w ith one y e a r’s fleece o r th e y a rn o r c lo th m a n u fa c tu re d th e re fro m ;
tw o cow s a n d five sw ine; h o u seh o ld goods, fu rn itu re , a n d u te n sils to
th e v a lu e of th re e h u n d re d d o lla rs; also fo o d sufficient to s u p p o rt su ch
a n im a ls, if a n y , fo r-six m o n th s, a n d p ro v isio n s a c tu a lly provided, fo r
fa m ily use a n d n ecessary fo r th e su p p o rt of su ch p erso n a n d fa m ily
fo r six m o n th s. 6. T h e s e a t o r pew o ccu p ied b y th e h e a d of a fa m ily
o r h is fa m ily in a p la c e of p u b lic w o rsh ip . 7. A ll p ro p e rty of a n y
p u b lic o r m u n ic ip a l co rp o ra tio n . N o artio le, o r th e pro ceeds deriv ed
fro m its sale o r exch an g e, is e x e m p t fro m e x ec u tio n on a ju d g m e n t
re c o v ered fo r its price.
H o m e s t e a d . T h e h o m e stea d of a n y fam ily , o r th e p ro c e ed sth e re o f,
is e x e m p t. S u c h h o m e stea d m u s t b e th e a c tu a l ab o d e of, a n d ow ned
b y , su ch fa m ily o r som e m e m b e r th e re o f, a n d n o t ex ceed tw o th o u s a n d
five h u n d re d d o lla rs in v a lu e , n o r ex ceed one h u n d re d a n d s ix ty acres
in e x te n t, if n o t lo c a te d in a to w n o r c ity la id off in to blocks o r lo ts;
o r if lo c a te d in a n y su ch to w n o r c ity , o n e -fo u rth of a n acre. T h is
e x e m p tio n does n o t a p p ly to decrees fo r th e fo reclo sure of a n y
m o rtg ag e p ro p e rly e x e c u te d ; b u t if th e ow ners of su ch h o m e ste a d be
m a rried , th e m o rtg ag e m u s t b e e x e c u te d b y h u s b a n d a n d wife.
G a r n i s h m e n t . ( S e e A t t a c h m e n t .)
I n t e r e s t . T h e leg al ra te of in te re s t is e ig h t p e r c e n t, b u t o n con
tr a c ts in te re s t a t th e r a te of tw elv e p e r c e n t m a y b e ch arg ed b y express
a g re em en t of th e p a rtie s. If u su rio u s in te re s t h a s b e en received or
collected, th e p a r ty p a y in g th e sam e, o r h is leg al re p re se n ta tiv e s, m ay,
b y a c tio n b ro u g h t w ith in tw o y e ars, reco v er d ouble th e a m o u n t of
su ch in te re s t. I f i t is a sc e rta in e d in a n y a c tio n u p o n c o n tra c t t h a t
a n u n a u th o riz e d r a te of in te re s t , h a s b e en c o n tra c te d fo r, ju d g m e n t
m u s t b e re n d e re d a g a in st th e d e fe n d a n t fo r th e a m o u n t d ue, w ith o u t
in te re s t, a n d a g a in st th e p la in tiff fo r costs. I f th e r a te c o n tra c te d fo r
is e ig h t p e r c e n t o r less, th e d e b to r m a y also agree to p a y th e ta x e s
u p o n th e d e b t, c re d it, o r m o rtg ag e .
J u d g m e n t a n d E x e c u t i o n . A ju d g m e n t is d o c k eted im m e
d ia te ly a fte r e n try . A t a n y tim e th e re a fte r w hile e x ec u tio n m a y
issu e a certified tra n s c r ip t of th e d o c k et m a y b e filed in th e office
of th e re c o rd e r of a n y reco rd in g d is tric t, a n d fro m th e d a te of d o c k et
in g a ju d g m e n t o r tra n s c r ip t th e re o f th e ju d g m e n t is a lie n u p o n a ll
th e re a l p ro p e rty of th e d e fe n d a n t w ith in th e reco rd in g d is tric t pr
d is tric ts w h ere d o ck eted , o r w h ich h e m a y a fte rw a rd s a c q u ire th e re in
d u rin g th e 'tim e a n e x ec u tio n m a y issue. I f no e x ec u tio n issues
w ith in te n y e a rs th e lie n ex p ires, b u t is ren ew ed if a fte rw a rd s leave
is g iv e n to issue e x ec u tio n a n d a tra n s c r ip t of th e d o c k et of th e o rd e r
d o c k eted w ith th e reco rd er.
.
„
,
x1_
E x e c u tio n m a y issue a t a n y tim e w ith in five y e ars fro m th e e n try
of th e ju d g m e n t, a n d th e re a fte r o n o rd e r of th e c o u rt m a d e o n m o tio n
of th e p a r ty in w hose fa v o r th e ju d g m e n t w as g iv en . S uch m o tio n
m u s t b e su b sc rib e d a n d v erified a s a co m p la in t, a n d su m m ons m u st
b e serv ed u p o n th e ju d g m e n t d e b to r o r h is re p re se n ta tiv e s, to w hich
h e o r th e y m a y d e m u r o r an sw er. T h e o rd e r m a d e m u s t b e d o c k eted
a s a ju d g m e n t. E x e c u tio n m a y b e a g a in st th e p ro p e rty of th e ju d g
m e n t d e b to r, h is p erso n , o r fo r th e d e liv e ry of th e possession of re a l
o r p e rso n al p ro p e rty o r su ch d e liv e ry w ith d am ag es. E x e c u tio n fro m
th e d is tric t c o u rt is re tu rn a b le w ith in s ix ty d a y s; fro m th e com m is
sio n er’s c o u rt w ith in th ir ty d ay s. U n til a le v y p ro p e rty is n o t affected
b y th e ex ecu tio n .
L i c e n s e s . (»See T a x e s . )
L i e n s , E v e ry m ech an ic, a rtis a n , m a c h in ist, b u ild e r, c o n tra c to r,
lu m b e r m e rc h a n t, la b o re r, te a m s te r, d ra y m a n , a n d o th e r p erso n
p erfo rm in g la b o r u p o n o r fu rn ish in g m a te ria l o f a n y k in d to b e used
in th e c o n stru c tio n , d e v elo p m en t, a lte ra tio n , o r re p a ir, e ith e r in w hole
o r in p a r t, of a n y b u ild in g , w h a rf, b rid g e , flum e, d itc h , m in e , tu n n e l,
fence, m a c h in ery , o r a q u e d u c t, o r a n y s tru c tu re o r s u p e rstru c tu re ,
h a s a lien u p o n th e sam e fo r th e w o rk o r la b o r d o n e o r m a te ria l fu r
n ish ed a t th e in s ta n c e of th e o w n er of th e b u ild in g o r o th e r im p ro v e
m e n t o r h is a g e n t; a n d e v e ry c o n tra c to r, s u b -c o n tra c to r, a rc h ite c t,
b u ild e r, o r o th e r p e rso n h a v in g c h arg e of th e w o rk , in w hole o r in
p a r t, is, fo r th is p u rp o se , deem ed th e a g e n t o f th e ow ner.
L i m i t a t i o n s . C ivil a c tio n s m u s t b e co m m en ced w ith in th e fol
lo w in g p erio d s a fte r th e cau se of a c tio n a c c ru e d : W ith in te n y e a rs—
a c tio n fo r th e re c o v ery of re a l p ro p e rty , o r th e P 9Ssession th e re o f; u p o n
a ju d g m e n t o r d ecree of a n y c o u rt of th e U n ite d S ta te s , o r of a n y
S ta te o r T e rrito ry w ith in th e U n ite d S ta te s ; u p o n a sealed in s tru m e n t.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
W ith in six y e ars— a c tio n u p o n a c o n tra c t o r lia b ility , express or im
plied, e x ce p t ju d g m e n t o r sealed in s tru m e n t; u p o n a lia b ility created
b y s ta tu te , o th e r th a n a p e n a lty o r fo rfe itu re ; fo r w a ste o r trespass
u p o n re a l p ro p e rty ; fo r ta k in g , d e ta in in g , o r in ju rih g personal prop
e rty , in c lu d in g a n a c tio n fo r th e specific re c o v ery th e re o f. W ithin
th re e y e ars— a c tio n a g a in st a m a rsh al, c oroner, o r co n sta b le , upon a
lia b ility in c u rre d b y th e d oing of a n a c t in h is official c a p a c ity or in
v irtu e of h is office, o r b y th e om ission of a n official d u ty , including
th e n o n -p a y m e n t of m o n e y collected u p o n e x ec u tio n , b u t n o t an
a c tio n fo r a n e scap e; a c tio n u p o n a s ta tu te fo r p e n a lty o r forfeiture,
w here th e a c tio n is g iven to th e p a r ty aggrieved, o r to su ch p a rty and
th e U n ite d S ta te s , e x c e p t th e s ta tu te p rescribe a d ifferen t lim itation.
W ith in tw o y e ars— a c tio n fo r libel, slan d er, a ss a u lt, b a tte r y , seduc
tio n , false im p riso n m e n t, o r fo r a n y in ju r y to th e p e rso n o r rig h ts of
a n o th e r n o t a risin g o n c o n tra c t; u p o n a s ta tu te fo r a forfeiture of
p e n a lty -to th e U n ite d S ta te s . W ith in one y e a r— a c tio n a g ain st the
m a rsh a l o r o th e r officer fo r th e escape of a p erso n a rre s te d o r im pris
on ed o n civil process; u p o n a s ta tu te fo r th e p e n a lty given in whole
o r in p a r t to th e p e rso n w ho w ill p ro se cu te , b u t if n o t commenced
w ith in one y e a r b y p riv a te p a r ty m a y b e w ith in tw o y e ars b y the
U n ite d S ta te s.
M a rrie d W o m e n ,
T h e p ro p e rty a n d p e c u n ia ry rig h ts of
e v e ry m a rrie d w om an a t th e tim e of m a rriag e , o r a fte rw a rd s acquired
b y g ift, devise, o r in h e rita n c e , o r by- h e r ow n la b o r, a re n o t subject
to th e d e b ts o r c o n tra c ts of h e r h u s b a n d , a n d she m a y m anage, sell,
convey, o r devise th e sam e b y w ill to th e sam e e x te n t a n d in th e same
m a n n e r t h a t h e r h u s b a n d c a n p ro p e rty belonging to h im . F o r civil
in ju ries d am ag es m a y b e recovered fro m a m a rrie d w om an alone,
a n d h e r h u s b a n d is n o t re sponsible th e re fo r. C o n tra c ts m a y be made
b y a w ife, a n d lia b ilities incurred, a n d th e sam e inforced b y or against
h e r to th e sam e e x te n t a n d in th e sam e m a n n e r a s if she w ere unm ar
rie d . A ll law s w hich im pose o r recognize civil d isab ilitie s u p o n a wife
w hich do n o t e x ist a s to th e h u s b a n d a re rep ealed . W ife m a y record
lis t of h e r p ro p e rty a n d su ch lis t is p r i m a f a c i e evidence of h e r separate
o w nership, a n d p ro p e rty n o t so re g iste re d is deem ed • p r i m a f a d e the
p ro p e rty of th e h u sb a n d . N e ith e r h u s b a n d n o r w ife is liable for the
d e b ts o r lia b ilities of th e o th e r in c u rre d before m a rriag e . H usband
a n d w ife m a y m a k e conveyances a n d tra n s fe rs a n d c re a te liens between
them selves, a n d e ith e r m a y c o n s titu te th e o th e r h is o r h e r attorney
in fa c t. A w o m an becom es of age a t tw e n ty -o n e o r u p o n being mar
rie d acco rd in g to law .
M o r tg a g e s . M ortgages a re e x ec u te d , acknow ledged, a n d recorded
in th e sam e m a n n e r a s deeds. N o c o v e n a n t is im p lie d for the
p a y m e n t of th e sum in te n d e d to b e secured. R e c o rd of assignm ent
is n o t n o tic e to th e m o rtg ag o r, h is h e irs, e r p e rso n al representa
tiv e s. M ortgage m a y b e d isch arg ed b y e n tr y in m a rg in of record
signed b y m o rtg ag ee o r h is p e rso n al re p re s e n ta tiv e o r assignee and
w itnessed b y th e com m issioner o r d e p u ty , o r b y c ertific a te executed
a n d acknow ledged a s o th e r conveyances. F oreclosure is b y action of
a n e q u ita b le n a tu re in w hich a deficiency ju d g m e n t m a y b e had.
N o te s a n d B ills o f E x c h a n g e .
O n a ll b ills of exchange and
a ll n eg o tiab le p ro m isso ry n o te s, o rd ers, a n d d ra fts p a y a b le a t a
fu tu re d a y c e rta in w ith in th e d is tric t, grace is allow ed; b u t grace is
n o t allow ed on bills of exchange, n o te s, o r d ra fts , p a y a b le a t sight or
on dem and.
R e c o r d s , A n u n re c o rd e d con v ey an ce o f re a l p ro p e rty is void
a s a g a in st a n y su b se q u e n t in n o c e n t p u rc h a se r in good fa ith a nd for
a v a lu a b le c o n sid e ra tio n w hose con v ey an ce is_ first d u ly recorded.
A com m issioner is ex-officio re c o rd e r of a reco rd in g d is tric t, th e boun
d aries of w h ich a re fixed h y th e c o u rt. C onveyances of la n d s not in
a n y reco rd in g d is tric t a re re c o rd e d w ith th e clerk of t h a t division of
the- d is tric t c o u rt w ith in th e lim its of w hich su ch la n d s a re situated.
R e p l e v i n , T h e plain tiff, a t a n y tim e a fte r th e com m encem ent
of a n a c tio n to reco v er th e possession of p e rso n al p ro p e rty a n d before
ju d g m e n t, m a y c laim th e im m e d ia te deliv ery of su ch p ro p e rty upon
filing a n affid av it show ing t h a t h e is th e ow ner of th e sam e o r entitled
to th e possession th e re o f; t h a t th e p ro p e rty is u n law fu lly detained
h y d e fe n d a n t; th e alleged cause of d e te n tio n ; t h a t th e sam e has not
b e en ta k e n fo r a t a x a ssessm ent or fine, p u rs u a n t to a s ta tu te , or
seized u n d e r a n e x ec u tio n o r a tta c h m e n t a g a in st th e p ro p e rty of the
p la in tiff; or, if so seized, t h a t i t is e x e m p t; a n d th e a c tu a l value of
th e p ro p e rty .
S e r v ic e , ( S e e A c t i o n s . )
S u p p l e m e n t a r y P r o c e e d i n g s , { S e e J u d g m e n t a n d E x e c u t i o n .)
T a x e s , E v e ry p e rso n o r c o rp o ra tio n p ro se cu tin g o r attem pting
to p ro se cu te a n y of th e follow ing lines of b usiness w ith in the_ district
m u s t first a p p ly fo r a n d o b ta in license so to do fro m th e d is tric t court
o r a su b division th e re o f, a n d p a y p e r a n n u m fo r su ch license for the
re sp ec tiv e lines of tra d e a n d b usiness a s follow s: S alm on canneries,
fo u r c en ts p e r c ase ; salm on salteries, te n c e n ts p e r b a rre l; fish oil
w orks, te n c e n ts p e r b a rre l; fe rtilize r w orks, tw e n ty c e n ts p e r ton;
fre ig h t a n d passen g er tra n s p o rta tio n lines, pro p elled b y mechanical
po w er o n in la n d w a te rs a n d o cean a n d coastw ise vessels doing local
b usiness fo r h ire , one d o lla r p e r to n o n n e t to n n a g e ; railro ad s, one
h u n d re d dollars p e r m ile; tra m w a y s, te n dollars p e r m ile; saw-mills,
te n c e n ts p e r th o u s a n d fe e t o n lu m b e r saw ed ; q u a rtz m ills, th re e dol
la rs p e r s ta m p ; m e rc a n tile e sta b lish m e n ts a n d m a n u fa c to rie s doing a
b usiness of u n d e r fo u r th o u s a n d dollars p e r a n n u m , te n dollars, and
in p ro p o rtio n to th e a m o u n t of business done to five h u n d re d dollars
fo r e sta b lish m e n ts d oing a b usiness of one h u n d re d th o u s a n d dollars
p e r a n n u m ; in o th e r lines of tra d e a n d b usiness th e a m o u n t is fixed
fo r e ac h a n d ranges, fro m te n to five h u n d re d dollars.
W i l l s . E v e ry person of tw e n ty -o n e y e a rs of age, of so u n d mind,
m a y dispose of a ll his or h e r p ro p e rty b y w ill, sav in g a w idow ’s dower
a n d a h u s b a n d ’s rig h ts a s te n a n t b y th e c u rte sy . W ill m u s t be in
w ritin g , signed b y th e te s ta to r , o r u n d e r h is d irectio n , in h is presence,
a n d a tte s te d b y tw o o r m ore c o m p e te n t w itnesses subscribing their
n am es in th e presence of th e te s ta to r . _ A w ill b y a n u n m a rrie d per
so n is re v o k e d b y h is su b se q u e n t m a rriag e . C hildren o r descendants
of ch ild re n n o t n a m e d or p ro v id e d fo r in th e w ill ta k e a s if testato r
h a d d ie d in te s ta te . A m a rin e r a t sea o r soldier in m ilita ry service
m a y dispose of h is p e rso n al p ro p e rty a s a t com m on law , Proof of
n u n c u p a tiv e w ill m u s t be m a d e w ith in six m o n th s, a n d th e w ords or
th e ir s u b sta n c e re d u c ed to w ritin g w ith in t h ir ty d a y s a fte r th e y are
spoken. A person ow ning p ro p e rty in , b u t n o t a n in h a b ita n t of,
th e d is tric t m a y devise o r b e q u e a th th e sam e a cco rd in g to th e laws
of h is dom icile. I f su ch w ill b e p ro b a te d w ith o u t th e d is tric t, copies'
of th e w ill a n d th e p ro b a te th e re o f, c ertified b y th e clerk of th e court
in w hich i t w as p ro b a te d , w ith th e seal of th e c o u rt affixed thereto,
if th e re b e a seal, to g e th e r w ith a certificate of th e chief ju d g e or pre
siding m a g is tra te , t h a t th e certificate is in d ue form , a n d m ade by
th e c lerk or o th e r p erso n h a v in g th e legal c u sto d y of th e record, may
b e recorded, a d m itte d in evidence, o r c o n te ste d a n d a n n u lle d as if
e x ec u te d a n d p ro v e d w ith in th e d istric t.
BANKING AND COMMERCIAL LA W S—ARIZONA.
S Y N O P S IS
O F
T H E
LA W S
R E L A T IN G
O F
A R IZ O N A
TO
BANKING AND COMMERCIAL USAGES.
Prepared a n d Revised b y E . M. S a n fo r d , A tto rn ey a t Law , P resco tt.
N o te : T he co m p ilatio n of sta tu te s in use in th is T e rrito ry is “ Revised
statutes, 1904 an d Session Law s, 1903 a n d 1905” fro m w h ich th is a b strac t
is made. T h e com m on law p rev ails w here it is n o t m odified or abro g ated
by statute, or is inapplicable to local conditions. Civil p rocedure is gov
erned by a Code of Civil P rocedure, and all crim es are statu to ry . T h e
powers of local go v ern m en t a re derived fro m a n d lim ited by acts o f
Congress o rg an izin g th e T errito ry .
A c c o u n t« . A ction m u s t b e com m enced w ith in th re e y ears after each
item upon all accounts, e x ce p t su ch a s concern th e tra d e o f m erchandise
between m e rc h a n t and m erch an t. A ccounts stated draw in te re st a t 6
ner cent p e r annum . W hen a ctio n is fo u n d ed upon open m erchants
account, if item ized is attach ed , verified by th e p arty , h is agent, or
attorney, before a n officer au th o riz e d to a d m in ister o a th s, to th e effect
that such acco u n t is w ith in th e affiant’s know ledge ju s t an d tru e , th a t
it is due, a n d th a t all ju s t a n d law fu l offsets, paym ents, a n d c re d its
have been allow ed, is attach ed to th e com plaint, th e sam e shall b e ta k e n
as p r i m a f a c i e evidence th ereo f, u n less defen d an t a t le a st one day before
trial file w ritten denial u n d e r oath.
A c k n o w l e d g m e n t s m ade w ith in T errito ry before clerk o f co u rt w ith
seal, n o tary public, county recorder, o r ju stic e of th e p eace; w ith o u t th e
Territory, b u t in U n ited States, a c le rk o f co u rt o f record h aving seal,
commissioner o f deeds fo r A rizona, o r n o ta ry public; w ith o u t th e
United States, a m inister, com m issioner, or ch arg e d ’affaires of th e
United S tates, re sid en t an d accred ited w here m ade, a consul-general,
consul, vice-consul, o r com m ercial ag en t of U nited S tates w here m ade;
a notary p u b lic —are ta k e n p erso n ally o r by proof. ( S e e f o r m . ) A l l
instrum ents affecting real o r personal p ro p e rty m u st be acknow ledged
before recording. ( S e e N o t a r y . ) A cknow ledgm ents o f m arried w om en,
taken in th e sam e form as if she w ere s o l e . No separate exam ination
required. C ertificate fo r persons m u st state “ th a t in stru m e n t was ex
ecuted for th e consideration an d purposes th e re in ex p ressed ,” and officer
taking sam e m u st sig n certificate a n d atta ch seal o f office. None sh a ilb e
taken unless officer know s, o r h a s satisfacto ry evidence on o ath o r affir
mation of a credible w itness, w hich shall be n o ted in th e certificate.
Where acknow ledgm ent is made b y officer o f corporation, th e certificate
must state, th a t such person as su ch officer fgiving h is nam e! acknow l
edged th e execution o f th e irs tru m e n t as th e free a ct and deed o t such
corporation, and w as by each o f th em voluntarily executed.” If instrum ent
unacknowledged, m u st be ex ecu ted according to com m on law except as
to scrolls and seals. Certificate m u s t show d ate of ex p ira tio n o f officer s
commission. W h en certificate o f acknow ledgm ent defective, action lies
to obtain decree correcting sam e. ( S e e F o r m s . )
A c t i o n s . All actions shall b e com m enced by th e filing w ith th e clerk
of the D istrict C ourt of a com plaint co n sistin g of a concise statem e n t of
the facts c o n stitu tin g th e cause of actio n , and sum m ons shall be
issued th e re o n w ith in one year.
D istin c tio n in fo rm s b etw een law
and e q uity p lead in g s are abolished. P le a d in g co n sists o f com plaint
and answ er—new m a tte r set up in an sw er is deem ed to b e d en ied . Com
plaint seeking e q u itab le relief m ay be sw orn to, answ er u n d e r o a th m ay
be waived.
A d m i n i s t r a t i o n o f E s t a t e s . N o p u b lic ad m in istrato r. W here
person dies in te state , le tte rs o f ad m in istratio n shall issue as follow s:
1. To th e surviving h u sb an d or w ife, o r som e co m p eten t perso n h e o r she
may select a n d re q u e st appointed. 2. T o th e children. 3. T o th e fa th e r
or m other. 4. T o th e b rothers. 5. T o th e sisters. 6. T o th e g ra n d
children. 7. T o th e n e x t o f k in en titled to sh are in th e d istrib u tio n . 8. To
the creditors. 9. T o any legally c o m p e ten t person. T h e executor o r
adm inistrator, im m ediately a fte r his appointm ent, m u s t cause to be p u b
lished in som e new spaper o f th e co u n ty a notice to th e creditors o f th e
decedent re q u irin g all p ersons h av in g claim s a g ain st deced en t to
exhibit th e m , w ith th e necessary vouchers, to th e ex ecu to r o r a d m in istra
tor, a t th e place a n d w ith in th e tim e m entioned in th e no tice. T h e tim e
expressed in th e notice m u st b e te n m on th s fro m its first publication,
when th e e state exceeds in value $3,000, a n d fo u r m o n th s w hen it is less
than th a t sum . E very claim w hen presented to th e ad m in istra to r Tor
allowance m u st b e supported by th e affidavit of th e claim an t, o r som e
one in his b eh alf, th a t th e am ount is ju s tly due, th a t no paym ents have
been m ade thereon w hich are n o t credited, a n d ihat_there a,re n o offsets
to the s a m e to th e know ledge of affiant. I f th e claim be n o t due w hen
presented o r be co n tin g en t, th e p articu lars of su ch claim m u st be stated.
When the affidavit is m ade by a person o th e r th a n th e claim ant h e m n st
set forth in th e affidavit th e reasons w hy i t is n o t m ade b y th e claim ant.
The oath m ay b e ta k e n before any officer a u th o rized to a d m in ister oaths.
A f f id a v its . W h en ev er a n y o a th or affidavit is o r m ay b e r e t i r e d
or authorized b y any law of th is Territory, th e sam e m ay b e ta k e n m any
other State, T erritory, o r d istric t of th e U nited States before any ju d g e or
commissioner o f a co u rt o f record, m a ster in chancery, n o ta ry public
authorized by th e law of su ch State, T e rrito ry , or d is tric t to ad m in ister
oaths.
A lie n s . A lien co rporations o r persons, un less rig h ts are secured by
treaty, can n o t h o ld lan d in th e T errito ry , ex cep t w here title s are
acquired prior to M arch 3, ,1887; m ay acquire^ lands by inheritance, or
in the ord in ary course o f ju s tic e in th e collection o f d e b ts; m ay acq u ire
liens on real estate; m ay len d m oney an d secure th e sam e on real e sta te ;
but title so acquired m u s t b e sold w ith in te n y ears; m ay acquire absolute
title and h o ld a n d convey th e sam e a t p leasure in p a te n ted m m es; and,
may hold all th e sto ck o f dom estic co rp o ratio n s ow ning possessory rig h ts
to u n p aten ted m ines.
A p p e a l s . Appeal from justice court is ta k e n by giving notice in open
court a t tim e of judgm ent, o r w ritten notice thereof served on adverse party
within five days after ju d g m e n t— and w ith in te n days after ju d g m en t
filing bond in double am ount of judgm ent, conditioned to_ pay any judg
ment or costs aw arded on appeal. A ppeals from d istrict to supreme
court are allow ed in all cases w here am ount is $100 o r over. N ouce
of appeal m u st be m ade in open court a t term in w hich ju d g m e n t is
rendered and b o n d in double th e sum o f estim ated costs m b o th courts
to be filed w ithin tw enty days after th e term . Bill of exceptions as to
matter of law a n d statem en t of fact as to m atter of facts required. Appeal
may be w ithout bon d if appellant files affidavit of in ability to give bond by
reason of poverty. E xecution m ay be stayed b y giving b ond in double th e
sum of th e am ount of judgm ent and costs. ’T ranscript on appeal m u st be
filed a t first term of suprem e court after expiration o f term a t w hich ju d g
ment w as rendered in low er court.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1173
A r b i t r a t i o n . B oth common law a nd statutory arbitration. U nder th e
statute, parties shall sign an agreem ent in w riting subm itting th e m atters
in dispute to tw o arbitrators, each party nam ing one. A rbitrators shall
possess th e qualifications of a trial ju ro r and n o t interested in th e subject
m atter in dispute. I f am ount in dispute is $300 or less th e agi-eement
shall be filed w ith a justice of the peace of th e county m w hich th e de
fendant resides, or in w hich the controversy arose, if th e dispute exceeds
$300 then filed w ith th e clerk, of the d istrict court in th e county in w hich
th e controversy arose. A rbitrators and w itnesses shall be sw orn; after
hearing evidence th e arbitrators ¿hall agree upon th eir aw ard and reduce
it to w riting, filing th e same w ith clerk or justice. I f arbitrators tail to
agree they m ay select an um pire. Unless rig h t of appeal is reserved m th e
agreem ent to subm it to arbitration, either party, upon application th e re
after in w riting, have a hearing de-novo in the court in w hich agreem ent
was originally filed. A fter an agreem ent to arbitrate is filed, the agreem eht
may be pleaded in bar or against any defense in any suit brought by either
party w here th e other shall have refused to proceed w ith th e arbitration.
A r r e s t . A bolished in civil cases. D ebtor fraudulently rem oving
property out of T erritory or concealing it m ay be prosecuted crim inally.
A t t a c h m e n t . W rit w ill issue u n d e r following conditions. T he clerk
of the co u rt or ju stic e of th e peace m u st issue the w rit of attachm ent
upon receiving an affidavit by or on behalf of the plaintiff, show ing; 1.
T h a t th e defen d an t is indebted to th e p la in tiff upon a contract, express or
Implied, fo r th e direct paym ent of money, a nd th a t such contract w as m ade
or is payable in th is T erritory, and th a t th e paym ent of th e sam e has not
been fully secured by m ortgage, lien, or pledge as hereinbefore provided,
or if originally so secured, th a t such security has, w ith o u t any act of th e
plaintiff or th e person to w hom the security w as given, become valueless,
and shall specify th e ch arac te r of th e indebtedness, th a t the sam e is due
to th e p laintiff over and above all legal set-offs o r counter-claim s, a nd th a t
dem and has been m ade fo r th e p aym ent of th e am ount due; or, 2. T h a t
th e defendant is indebted to th e plaintiff, s ta tin g th e am ount and charac
te r of th e d ebt; th a t the same is due and payable over a nd above all legal
set-offs a nd counter-claim s, a nd th a t th e defen d an t is a non-resident of
th is T erritory or is a foreign corporation doing business m th is T erritory;
or, 3. T h a t an action is pending betw een th e parties, an d th a t th e d e fe n d
a n t is about to rem ove h is p ro p e rty beyond th e jurisdiction of th e C ourt
to avoid paym ent of th e judg m en t; and, 4. T h a t the attach m en t is n o t
so ught fo r a w rongful or m alicious purpose, and th a t th e action is n o t
prosecuted to h inder or delay any creditor of th e defendant. 5. No such
a tta ch m e n t shall issue u n til the su it has been duly in stitu te d , b u t it m ay
be issued in a proper case either a t th e com m encem ent of th e su it or a t
any tim e during its progress. 6. T he w rit of a tta ch m e n t above provided
for m ay issue, although th e plaintiff’s debts or dem and be n o t due, and
the sam e proceeding sh all be h a d thereon as in other cases, except th a t no
final ju d g em en t shall be rendered ag ain st the_defendant u n til such debt
or dem and shall becom e due. In o rd e r to o b tain an atta ch m e n t for a debt
on dem and n o t d u e i t shall be necessary fo r th e plaintiff, or som e one in
h is behalf, to m ake an affidavit to be filed w ith th e clerk or ju stic e of the
peace, as the case m ay be, show ing: — a . T h a t th e defendant is indebted
to the p laintiff upon a contract, express or im plied, for th e dire c t p aym ent
o f th e money, statin g th e am ount and th a t th e debt is n o t due; th a t such
contract w as m ade or is payable in th is T e rrito ry , and th a t th e p ay m en t of
the same h a s n o t been secured by m ortgage, pledge, or lien as h ereinbefore
provided, and shall state th e character of the debt sued fo r a n d th a t there
are no legal set-offs or counter-claim s against the sam e. b . T h a t defend
a n t is a b out to rem ove perm anently o u t of the T erritory a nd has re fu se d
to secure the debt; or, c . T h a t he h a s secreted his property fo r th e p u r
pose of defrauding h is creditors; or, d . T h a t he is about to rem ove his
property, o u t o f the T erritory, w ith o u t leaving sufficient rem aining fo r the
p a y m e n t of h is debts; or, e . T h a t he has disposed of his property, in
w hole or in part, w ith in te n t to defraud his creditors: or, / . T h a t h e is
about to dispose of bis pro p erty w ith in te n t to d efraud h is creditors ; and,
a . T h a t th e atta ch m e n t is n o t sued ou t for th e purpose o f in ju rin g or
h a r a s s in g th e defendant; and, h . T h a t the plaintiff w ill probably lo se
his debt unless such a ttachm ent is issued. 7. In case o f an attach m en t
fo r a d ebt n o t due, th e facts set fo rth in th e affidavit fo r a tta c h m e n t may
be traversed b y th e defendant, and th e issue so form ed shall be tried
before th e court or a ju ry , as o th e r cases. W rit m ay issue a t any tim e
before judgm ent after the filing of, com plaint, upon plaintiff or som e one
in his b e h alf filing th e affidavit, and u pon th e filing oi a bond w ith tw o
sureties in an am ount equal to am ount sued for, w hich bon d m ust be
approved by th e justice of the peace or clerk of th e distric t court, as the
case m ay be. Sureties can be com pelled to ju s tify upon notice filed a t
a nv tim e w ithin five days a fte r th e levy of th e w rit. Affidavit a nd bond
m ay be am ended on m otion to quash th e w rit a t any tim e before final
d eterm ination of th e m otion. A n officer having a w rit fo r service m ay
require an indem nity bond from plaintiff before levying w hen ow nerstiro of pro p erty to be a ttached is disputed or claim ed by th ir d ^person.
W hen m ore th a n one a tta ch m e n t is levied on sam e p ro p e rty w rits ta k e
p rio rity according to tim e of levy. . ( S e e Z A e n s , G a r n i s h m e n t . )
B a n k « a n d B a n k i n g . B anks of disco u n t a n d d ep o sit ( b u t n o t of
issue! m ay incorporate u n d e r th e s ta tu te relating to co rp o ratio n s in
general, w hich title v i d e . B an k in g business m ay b e c arrie d on by in d i
viduals or firms, o r by corporations o rg a n iz e d fo r th a t purpose.
B a n k s S a v i n g s a n d L o a n . M ay be incorporated to loan and
invest property. M ay hold lot and building in w hich business is carried
o n to value of $100,000; such as m ay accum ulate on good fa ith loans and
such personal pro p erty as m ay be required in tra n sac tin g its business.
T o purchase and convey evidence of d e b t except N ational, T e rritorial,
m d M unicipal bonds m ust have a capital of $100,000. M arried w om en
m d m inors m ay transact business w ith such b a n k s. A re required to
¡lave license and are exam ined by the b a n k com ptroller. P rovisions are
made fo r th e contents of th e charter. M ust c arry 15 per c e n t of deposits
and m ake reports to th e legislature.
B ill« a n d N o te s . T h e negotiable instru m en t code adopted b y the
A merican B ar Association is in force. J o in t obligor m ay be released
w ithout releasing others. ( S e e H o l i d a y s . )
B o n d s . A ny stan d a rd su re ty com pany, organized under laws- of
U nited S tates or of any State, m ay execute appeal, injunction, a nd other
b o n d s in ju d ic ia l proceedings w ith in th e T erritory.
M ust file pow er of
attorney w ith secretary of T erritory, a nd in each county w here business
is transacted. ( S e e G u a r a n t y C o m p a n i e s . )
C h a t t e l M o r t g a g e . T o be valid a g ain st others th a n th e parties
thereto, chattel mortgage m u st set o u t th e residence of th e m ortgagor
and th è mortgagee, th e ra te of interest to be p a id a nd tim e and place of
paym ent of th e d ebt secured, a nd be accom panied by th e affidavit of both
m ortgagor and m ortgagee th a t th e m ortgage is bona fide and m ade w ithout
desimi to defraud or delay creditors. Im m ediate delivery of th e m ortgaged
property m u st b e m ade to th e m ortgagee a nd th e change of possession
m u st be actual a nd continued, unless th e m ortgage or a tru e copy thereof
shall be fo rthw ith deposited a nd filed in th e office of th e recorder of th e
county w here th e property shall th e n be situate. Rem oval, sale, or other
disposition of m ortgaged property w ithout consent of m ortgagee entitles
1174
BANKING AND COMMERCIAL LAWS—ARIZONA.
m ortgagee to im m ediate possession o f it. a n d such rem oval, transfer, or
sale, o r subsequent encum brance is felony. If m ortgagee perm its m ort
gaged property to b e rem oved to another county, ne shall w ith in 'o n e
m o n th record h is m ortgage in su ch other County. C hattel m ortgage
m ay b e foreclosed, in ju stic e co u rt if am o u n t of debt does not exceed
$300; otherw ise in d istric t co u rt. M ortgagee m ay obtain possession of
property on d efau lt and sell after notice w hich m u st b e served on ow ner.
U pon sto ck o f goods, wares, a n d m erchandise w ith c o n tin u ed possession
in m o rtg ag o r is void. If copy is filed w ith B eco rd er o rig in al m u st
be acknow ledged, a n d copy certified to by co u n ty recorder.
C la im an d . D e liv e r y . (S e e R e p le v in .)
C o l l a t e r a l s . N o statu to ry provisions—com m on law prevails.
C o m m u n i t y P r o p e r t y . (S e e C o n v e y a n c e s .)
C o n d i t i o n a l S a le s . W h ere title rem ains in v endor u n til purchase
price is p aid , void as to persons n o t parties th e re to , an d persons w ith o u t
notice, u n less subscribed an d filed w ith county recorder.
C o n t r a c t s . ( S e e B i l l s a n d N o t e s . ) One o r m ore obligors on a jo in t or
jo in t an d several in stru m e n t m ay be released w ith o u t releasing th e others,
a n d m ay b e sued separately u n d er certain conditions w ith o u t releasing
th e others. M arried w om en m ay contract as if s o l e .
C o n v e y a n c e s . Conveyances o f estate in lands fo r term m ore than
one year sh all b e b y an instrum ent in w ritin g sub scrib ed by party m aking
it, or h is agent, duly authorized thereto by w riting. A conveyance is not
effectual against creditors or bona fide p u rch asers unless recorded in
recorder’s office in county w here land is situate. A conveyance p u rp o rt
ing to convey a greater estate th a n th e gran to r has, passes only th e estate
th a t h e actually has. A general g ra n t o r devise passes th e fee unless
expressly lim ited to a less estate. A ll deeds m u st be signed by both hue band
an d w ife ex cep t as to u n p a te n te d m ines. D eed m u st be signed and m u s t be
acknow ledged before som e officer au th o rized to ta k e acknow ledgm ent,
and properly certified by him to e n title sam e to reg istratio n . T he use of
th e w ord “ g r a n t” or “ c o n v ey ” im plies th e following covenants and
none o th er: 1. T h a t previous to th e tim e o f th e execution of th e convey
ance th e gran to r h as n o t conveyed th e sam e estate, o r any right, title, or
in terest therein, to any person other th a n th e grantee. 2. T h a t such
estate is a t th e tim e of th e execution of su ch conveyance free from
incum brances. M arried w om en seventeen years o f age and upw ard m ay
convey th e ir ow n lands w ith o u t bein g joined by th eir hu sbands. ( S e e
A c k n o w l e d g m e n t , B o w e r , H u s b a n d a n d W i f e , H o m e s t e a d .)
C o r p o r a t i o n s i n G e n e r a l . A ny nu m b er o f persons m ay associate
them selves together a n d becom e incorporated for th e tran saction of any
law ful business. Before com m encing any business, except th a t of
th e ir ow n o rg a n iz a tio n ,. two or m ore p ersons, w ho need n o t be
residents o f th e T errito ry , m u st a d o p t articles o f in co rp o ratio n
w hich shall be signed a n d acknow ledged by them , a n d be recorded
in th e office o f th e county recorder o f th e co u n ty w here th e principal
place o f business is to be an d a certified copy in th e office of th e 'T e rrito rial A u d ito r. T h e articles of inco rp o ratio n m u st contain: 1. T he
nam e o f corporators, th e n am e of corporation, and its principal
place o f tran sactin g b n sin ess., 2. T h e general n a tu re o f th e business
proposed to be transacted. 3. T he am ount o f cap ital sto ck authorized
an d th e tim es w hen a n d conditions upo n w hich it is to be paid in .
4. T h e tim e o f th e com m encem ent a n d term in atio n o f th e corporation.
5. By w h a t officers o r persons th e affairs of th e co rporation are to be
conducted, an d th e tim es a t w hich th e y are to be elected.
6. T he
highest a m o u n t o f indebtedness or liab ility to w hich th e corporation
is a t a n y tim e to su b ject itself. 7. W h eth er p riv ate property is to
be ex em p t from corporate debts. U nless so exem pted stockholders
are liable fo r th e d eb ts of th e corporation, in th e p ro p o rtio n w hich their
sto ck bears to th e w hole cap ital stock. M ust be p u b lish ed for six days in
in some new spaper in th e co unty w here th e principal business is located,
and a copy of th e articles certified to by th e C ounty E eco rder m u st be
filed w ith th e T errito rial A u d ito r. P ro o f o f P u b licatio n m u s t be filed
w ith A u d ito r. C orporations fo r th e co n stru ctio n o f any w ork o f internal
im provem ent m ay be form ed to endure for fifty years; those form ed for
o th er pu rp o ses shall n o t exceed twenty-five years in d u ration. Corpo
ra tio n m u st file in office of T e rrito ria l A u d ito r an a p p o in tm e n t of agent
w ho is a bona fide re sid en t of th is te rrito ry fo r th re e years p rio r th e re to ,
o n w hom all n o tices a n d process, in clu d in g sum m ons, m ay b e served and
c o n stitu tes p erso n al service. Charges fo r In co rp o ratio n —Recorder’s fees,
20 cents folio. R ecorder’s fees, certified copv, 2 0 cents folio. Eecorder’s
fees, cer ificate to copy, 75 cents. T e rrito rial A u d ito r’s fees, filing cost,
copy, $10.00. P rin te r’s fees, p er inch, publishing articles 6 days. 80 cents.
T errito rial A uditor’s fees, filing proof, publishing, $3 00. T erritorial
A uditor’s fees, filing ap pointm ent o f agent, $3.00.
C o r p o r a t i o n s , F o r e i g n . A ny com pany incorporated u n d e r th e
law s of any other S tate or T errito ry , fo r any enterprise, business, pursuit,
o r occupation proposed to b e carried on, o r th e principal office or place
o f b usiness is proposed to b e located w ith in th is Territory, shall m ake and
file certified a n d duly a u th en ticated copies o f th e ir articles of incorpora
tio n w ith th e secretary o f th is T errito ry a n d th e county recorder of th e
c o u n ty in w hich its business o r prin cip al office is located. I t shall be th e
d u ty of any association, com pany, or corporation organized or incorporated
un d er th e law s o f an y o th er S tate o r T erritory, or foreign co untry, fo r th e
p u rp o ses of engaging in o r carry in g on any enterprise, business, p u rsu it,
o r occupation, o r acquiring, holding, o r disposing of any p ro p erty w ithin
th is T erritory, to file w ith th e secretary o f th is T errito ry a n a th e county
reco rd er o f th e co u n ty in w h ich such enterprise, business, p u rsu it, o r
occupation is proposed to b e located, o r is located, th e law ful appointm ent
o f an agent, u p o n w hom all notices an d processes, including service of
sum m ons, m ay be served, a n d w hen so served shall be deem ed ta k e n and
held to be a law ful personal service on su ch association, com pany, or
c o rp o ratio n fo r a ll purposes w hatsoever.
No such co rp o ratio n shall
tra n sa c t any b u sin ess w hatsoever in th is T errito ry u n til an d unless it
shall have first filed a u th e n tic a te d copies o f its articles o f incorporation
an d a p p o in tm en t o f an agent, and every a ct done by it p rio r to th e filing
th ereo f sh all b e u tterly void. T h e ap p o in tm en t o f such agent shall be
em bodied in a re so lu tio n d u ly ad o p ted by such com pany, a n d shall be
signed by th e p resident, m anager, o r secretary thereof. A ll such agents
s h a ll b e bona fide resid en ts o f th e county in w h ich th e ir a p p ointm ents
shall b e filed a n d o f th e T e rrito ry fo r th re e years, a n d th e full nam e
and residence o f each a g en t shall b e sta te d in th e resolution appointing
him . I f su ch ag en t a b sen ts h im self fo r four consecutive m onths, a n d
no n ew a g en t be appointed’ d u rin g th a t tim e, th e rig h t to do business
sh all cease.
C o r p o r a t i o n s , I n s u r a n c e . M ay be organized u n d er th e statu te in
relation to corporations in general, su b ject to certain provisions peculiarly
applicable to insurance com panies. T hey shall n o t ow n real estate
e x ce p t: 1. T h a t requisite in th e convenient transaction of th e ir business,
n o t exceeding $50,000 in value. 2. By w ay o f m ortgage to secure loans or
for m oneys due. 3. T h a t acquired a t sales upo n deed o f tru s t or ju d g
m e n t obtained fo r loans o r debts. 4. T h a t conveyed in satisfaction of
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
debts previously contracted in th e course of th e ir dealings. All real
estate acquired except th a t requisite fo r convenient transaction of com
pany’s business shall be sold w ithin five years alter its acquisition unless a
certificate be procured from th e attorney-general extending the time. If
com pany be liable for losses in am ount equal to its capital stock, new
insurance officers and directors, w ith notice, oecome liable thereior. Capi
tal stock shall n o t be less th a n $100,000, 25 per cent of w hich must
be p aid in before issuing any policy, and balance in installments
w ithin twelve m onths. Com pany shall n o t tak e in any one risk a sum
exceeding one-tenth of th e capital stock. D ividends shall no t be declared
except on conditions.
C o r p o r a t i o n s , R a i l r o a d , are organized under a statu te especially
providing for them .
C o r p o r a t i o n s , S a v in g s a n d D o a n . ( S e e B a n k s a n d B a n k i n g . )
C o r p o r a t i o n S t o c k , T r a n s f e r o f. .Transfer of sto ck shall not be
valid, except as betw een th e p a rtie s th e re to , u n til th e sam e is regularly
entered u pon th e books of th e com pany, so as to show th e nam es of the
person b y w hom an d to w hom the tra n sfe r is m ade, th e n u m b e r of their
designation of th e shares, and th e date of the transfer.
C o s ts . D iscretionary to ta x e s on m o tio n ; plaintiffs w ho are non
resid en ts, or those w ho ow n no property upon w hich execution may be
levied, are required to give security for, w ith in ten days a fte r order made;
bonds for, m u st a u th o riz e j udgm ent to be e n te re d a g ain st sureties.
’
C o u r t s . A re th e Suprem e C ourt of th e T erritory, th e d istrict court
of th e five several districts, th e d istrict court for each County, the
probate court for each County, justices of th e peace. T h e suprem e court
consists of five justices, a nd its te rm com m ences second M onday in Jan
uary, th ird M onday in May, first M onday in Septem ber. S u p r e m e C o u r t :
C hief J u stic e . E dw ard P . K ent, th ird d istric t, Phoenix; J o h n H . Camp
bell, associate ju stic e , T u cso n ; F le tc h e r M. D o a n ,. associate justice
second d istric t, T om b sto n e; E ich a rd E . Sloan, associate justice -fourth
d istric t, P resc o tt; P . S. W ave, associate ju stic e fifth d istric t. Globe.
S essions: Second M onday in J a n u a ry , th ird M onday in M ay and
first M onday in Septem ber. C o u r t s f o r T r i a l o f C a u s e s L n d e r L a w s
o f C o n g re ss:
A t Tucson, T om bstone, Phoenix, P resc o tt arm Globe
o n th e dates p ro v id e d fo r T e rrito ria l C ourts below . T e ï m s o f T e r
r i t o r i a l C o u r t s : F ir s t distric t, P im a C ounty. T ucson, fo u rth Monday
in A pril a n d O ctober; Y u m a C ounty, Y um a, first M onday in A pril ana
O ctober. Second d istric t, Cochise C ounty, T om bstone, fo u rth Monday
in A p ril a n d O ctober; S a n ta C ruz County, N ogales, first M onday in April
an d O ctober. T h ird d is tric t, M aricopa C ounty, Phoenix in 1905, first
M onday in A p ril a nd th ir d M onday in O ctober, a n d th e re a fte r on third
M onday in A pril and.O ctober; P in a l C ounty, F lorence in 1905, first Mon
day in M ay an d O ctober, a n d th e re a fte r on first M onday in A pril and
O ctober. F o u r th d istric t, Y avapai C ounty, P rescott, first M onday in May
a n d N ovem ber; M ohave C ounty, K ingm an, first M onday in A pril ana
th ir d M onday in O ctober; C oconino C ounty, Flagstaff, first M onday in
A pril an d th ird M onday in S eptem ber; N avajo C ounty, H olbrook, second
M onday in O ctober; A pache C ounty, St. Jo h n s , first M onday in October.
F if th d istric t, G raham C ounty, Solom onvillle, first M onday in April and
O ctober; G illa C ounty. Globe, first M onday in J u n e a n d fo u rth Monday
in N ovem ber T he d is tric t co u rt of th e several counties is a court at
general jurisdiction, b oth civil an d crim inal. I t has b o th original and
appellate jurisd ictio n . Its original jurisdiction extends to all civil cases
w here th e am o u n t involved exceeds $100 exclusive of interest, and in all
cases involving th e title to or possession of real estate. Ju stice courts
have general jurisdiction w hen am ount in controversy does n o t exceed
$300, except w hen title to real e sta te is involved. ( S e e J u r i s d i c t i o n . )
C r e d i t o r s ’ B i l l s . N o sta tu to ry provisions.
D a y s o f G r a c e . , N one.
D e p o s i t i o n s . D epositions m a y b e ta k e n on com m ission or by stip
u la tio n before any officer au th o riz e d to ta k e acknow ledgem ents of
deeds. T he officer shall certify th a t th e answ ers of the w itness were
signed and sw orn to before him , and shall seal them u p in an envelope,
together w ith the com m ission a nd interrogatories a nd cross-interroga
tories, if any, a nd shall w rite his nam e across th e seal a n d indorse on the
envelope th e nam es of the parties to th e suit, and of th e witnesses, and
shall direct th e package to th e clerk of the court or justice of th e peace,
as th e case m ay be. D epositions m ay be returned to th e court either by
m ail or by hand. I f sent by m ail, the postm aster or his deputy shall in
dorse thereon th a t he received th em from th e hands of th e officer before
w hom they w ere tak en . T h e deposition of a party to action m ay be taken
an d his s tatem e n ts m ay be controverted.
D e s c e n t a n d D i s t r i b u t i o n . ( S e e S a v i n g s B a n k s ) . T he law of com
m unity property prevails. T h e separate estate of an intestate, w hen he or
she shall die leaving surviving no husband or wife, shall descend as follows:
1. T o his or h e r children a nd th e ir descendants. 2. I f there be no chil
dren no r their descendants, then to his or her father a nd m o th er in equal
portions. B ut if only th e father or m other survive th e intestate, then his
estate shall be divided into tw o equal portions, one of w hich shall pass to
su ch survivor and th e other h a lf shall pass to th e brothers and sisters of the
intestate, and to th e ir descendants. B ut if there be none such, th e n th e whole
estate shall go to th e surviving father or m other. 3. I f there be neither sur
viving father no r m other, th e n the whole of th e estate goes to th e brothers
a nd sisters and th e ir descendants. 4. I f there be none of th e foregoing
kindred, then a m oiety of th e estate goes to th e paternal and a moiety to
the m aternal kindred. W hen an intestate leaves surviving a w ife or husband
the estate descends as follow s: 1. I f th e intestate has a child or children or
th eir descendants th e surviving wife or h u sb an d takes one-third absolutely
of th e personal property and a life estate in one-third of th e real estate,
w ith rem ainder to th e ir children or th e ir descendants. T he residue of the
personal property a nd real estate goes to th e children or th e ir descendants.
2. I f th e in testate leaves no children, th e surviving spouse takes all the per
sonal property and one-half of th e real estate in fee. T he other h a lf of the
real estate goes according to the rules of descent first above set out. If, how
ever, th e intestate leave surviving neither fa th e r no r m other, then th e whole
estate goes to th e surviving spouse. C hildren o f th e in testate’s brothers,
sisters, uncles and aunts, etc., ta k e p e r capita. A ll property belonging to
the com m unity estate of th e husband and w ife shall go to th e survivor, if the
deceased spouse have no child or children; if th e deceased have a child or
children, h is or h e r surviving spouse w ill ta k e one half, a nd th e other half
goes to such child or children. T h e com m unity property alw ays passes
charged w ith th e debts against it. Interm arriage betw een m an a nd woman
to w hom a c hild or children h a d before been born, and recognition by the
father of such child or child ren legitim izes th e child or children Bastards
in h erit fio m th e m other and tra n sm it estates as if legitim ate. T he statute
provides for th e a doption o f heirs. ( S e e B o w e r , H u s b a n d a n d W if * i
H o m e s te a d .)
D i v o r c e . P lain tiff m u st be a bona fide resident o f T errito ry for one
year, and in county fo r six m onths. G rounds: A d u ltery ; physical incom
petency a t m arriage and continued to in stitu tio n of s u it; conviction
of felony a nd sentence thereon to im prisonm ent in prison, providing,
ju d g m e n t of divorce sh all h o t be e n tered u n til one y e ar a fte r conviction,
BANKING AND COMMERCIAL LAWS—ARIZONA.
and providing th e im prisoned one has n o t b een convicted on th e te sti
mony of th e p la in tiff; w illfu l desertion of tw o y e a rs ; extrem e physical
cruelty; h u sban d ’s neglect to provide for w ife fo r tw o years, h av in g th e
ability so to do, o r because h e is idle o r p ro flig ate; w hen, p rio r to m a m a g e,
either p arty shall have been convicted o f a felony an d th e conviction is,
at marriage, un k n o w n to, th e o th e r; and, in favor of husband, w hen w ife
jgwith child by another a t m arriage, and th e fa c t is th en u n know n to h u s
band, A lim ony and counsel fees mav be allow ed p e n d e n t e l i t e , ' c o rro b o
rating evidence m u st be produced. D ivision o f com m unity^iroperty m ay
I be allowed. D ivorce from bed and bo ard m ay b e g ran ted .
D o w er. D ow er is abolished. See F ran ce vs. C onner, 16 Suprem e Ct.
E v id e n c e . T h e com m on law rules have n o t been codified. - Provision
bas been m ade fo r ta k in g depositions by com m ission. P arties m ay be
examined a n d th e o th er side n o t concluded thereby. S tatu tes o f other
states and territo ries p u rp o rtin g to be p rin ted u n d e r a u th o rity m ay be
read. No one is incom petent to te stify because of religious belief. C er
tified copies of all records in te rrito ry , counted by law , m ay be read.
I Certified copies o f records of all n o taries m ay be re a d . All in stru m en ts
competent to be recorded m ay be read. C ourt m ay o rd er in sp ectio n or
copy of docum ents.
E x e c u tio n s . U pon a ju d g m e n t of d istric t court, executions m ay be
isiued to any county. L ien o f dates fro m levy, and if on real property,
the description is endorsed on execution and filed w ith county recorder.
Arange levy m ay be m ade u p o n a ll of sto ck un d er a certain b ran d . ( S e e
Ju d g m e n t, L i e n s .)
Proceedings supplem ental to ex ecu tio n — w hen re
turned unsatisfied, creditor is en titled to an order requiring dehtor to
answer concerning h is property, b u t n o t elsew here th a n in th e county of
his residence. T h ird p arties may, upon affidavit, be req u ired to su rren
der property. C ourt or ju d g e m ay o rd er su it b ro u g h t to d eterm in e
the denial of ow ning or o f h av in g p ro p erty .
E x e m p t i o n s . E very head of a fam ily is entitled to hom estead n o t
exceeding $2,500 in value, an d every fam ily $500 w orth of personal prop
erty. A m arried person is allowed his or h er wages earned w ith in sixty
days before suit ex em p t upon affidavit th a t th ey are necessary for su p p o rt
of his or h e r fam ily. Officer levying w rit o f attach m en t o r ex ecution
must notify deb to r to select exem pted property. ( S e e H o m e s t e a d , L i e n s . )
F r a u d s a n d F r a u d u l e n t C o n v e y a n c e s . Agreements m u st be in
writing and signed by th e parties to b e charged: 1. By an executor or
sdministrator to answ er fo r th e d eb t of his testato r o r intestate ou t o f_his
own estate. 2. By a person to answ er for th e d ebt, default o r m iscarriage
of another. 3. T o charge any person u p o n an agreem ent m ade u pon con
sideration of m arriage. 4. F o r sale o f real estate or lease thereof fo r a
term longer th a n one year. 5.. Those w hich are n o t to be perform ed
within the space of one year after th e m aking thereof. Every gift, convey
ance, or assignm ent, or transfer, or charge upon any estate, real or personal;
any suit com m enced on decree, j udgm ent, or execution suffered o r obtained,
or any bond o r other w riting given w ith in te n t to delay, hinder, o r defraud
creditors, purchasers o r other persons, shall to such persons be void. All
bargains, sales, a n d o th er conveyances o f lands, tenem ents, an d h ered ita
ments. deeds o f settlem en t o f m arriage, deeds o f tru st, a n d m ortgages,
are void as to creditors a n d subsequent purchasers, w ith o u t n otice, unless
properly recorded. T h e cred ito r m u st be a ju d g m en t creditor, and
notice m u st be p rio r to d ate of ju d g m en t lien . A ju d g m e n t c re d ito r m ay
be an innocent p u rch aser. Every gift, conveyance, assignm ent, transfer
or charge m ade by a d eb to r w h ich is n o t upon consideration deem ed valu
able in law shall be void as to p rio r creditors, if debtor h ad n o t th e n other
property in th e T erritory "sufficient to p ay all his indebtedness. N o t on
that account, however, void as to su b seq u en t creditors. No g ift o f any
goods and chattels shall be valid unless d u ly acknow ledged, or proven and
recorded, or by will, o r unless actu al possession shall have come to and reI mained w ith th e donor o r som e one claim ing under him . E very sale
I made by a vendor of goods o r chattels in his possession or under
bis control, unless accom panied by im m ediate delivery and b e followed
by actual and continued charge of possession, shall be p r i m a f a c i e
evidence of frau d as ag ain st creditors or su b seq u en t p urchasers m
l good faith. N o co n tract fo r loan o r lease of goods or ch attels for
period of three m onths, shall be valid as ag ain st persons n o t parties,
! or those having notice, unless in w ritin g a n d filed as chattel mortgages
are required to De. Act 1895, p. 12. F rau d u len t in te n t is a question o f fact
5 and not of law. Conveyance shall n o t be adj udged frau d u len t merely because
| notfor valuable consideration. If any person shall do o r tra n sac t business
asa m erchant or trader, w ith th e addition o f th e w ords agent, factor, comany, or & C o . , o r w ords of like significance o r im port, a n d shall fail to
inclose the nam e of h is principal, or partner, or other perso n w ho m ay be
interested in su ch business by a sign in letters easy to read, placed con
spicuously a t th e place w here such business is transacted, or if any person
shall transact business in h is ow n nam e, w ith o u t any su c h addition, all
the property, sto ck , m oney an d choses in actio n used or acquired in such
business except su ch property as m ay be ex em p t from execution, shall, as
to the creditors o f any su ch person, be liable for his debts, and be, in all
respects, treated in favor of h is creditors as his property. C rim inal p ro se
cution fo r frau d is provided. ( S e e C o n d i t i o n a l S a l e . )
G a r n i s h m e n t . W rit m ay issue: i. Where" w rit o f atta ch m e n t has
issued. 2. U pon affidavit th a t th e d e b t is ju s t due, and u n p aid , a n d th a t
defendant has n o t, w ith in affiant’s know ledge, p ro p erty in his possession
subject to execution sufficient to satisfy such d ebt, a n d th a t th e w rit is
not sued out to in ju re e ith e r th e d efen d an t o r garnishee. 3. U pon ju d g
ment, w hen affiant m akes affidavit th a t th e d efen d an t has not, w ith in his
knowledge, p ro p erty in h is possession w ith in th is T errito ry sufficient
to satisfy said ju d g m e n t. Proceedings u n d e r subdivision 2 requires a
bond in double th e am o u n t of th e d e b t, conditioned th a t p lain tiff will
prosecute the su it to effect, an d pay a ll dam ages a n d costs th a t m ay be
adjudged against him for w rongfully su in g o u t th e garnishm ent. The
proceedings are d o ck eted and ju d g m e n t ren d ered as if in an in d ep en d en t
proceeding. ( S e e A t t a c h m e n t . )
H o lid a y s . Legal holidays a re Ja n u a ry 1, F eb ru ary 22, J u ly 4,
Thanksgiving, M ay 30, D ecem ber 25, every Sunday, an d general T e rri
torial election d ay , o r an y special election day th a t m ay be called b y
the governor, a n d a n y day app o in ted by th e p re sid en t o r governor. A ny
promissory note, b a n k check, bill o f exchange, acceptance, o r o th er
negotiable instru m en t, m ade p ayable a t a n y fu tu re period, w hich falls due
on any of th e se days m en tio n ed , sh all b e considered due an d collect
ible on th e day follow ing; an d if Ja n u a ry 1, F eb ru ary 22, J u ly 4, D ecem
ber 25, or M ay 80 sh all fa ll upon Sunday, th e n th e M onday follow ing shall
be considered as a legal holiday. W rits o f in ju n ctio n s, attach m en ts,
replevin, and p ro h ib itio n m ay be issu ed an d served o n . I f a statu to ry
holiday fa lls o n S u n d ay th e n e x t d ay is n o t a holiday.
H o m e s t e a d . H ead o f fam ily, h u sb an d o r wife,_ if m arried , m ay
•elect from com m unity o r separate property, a t th e tim e o f ex ecu tio n
levy. V alue m u st n o t exceed $2,500. D eed to, m u st b e signed by h u s
band a nd wife. ( S e e E x e m p t i o n s . )
H u s b a n d a n d W i f e . A ll p ro p erty , b o th re a l an d personal, of
the husband o r wife, ow ned o r claim ed b y h im o r h e r b e fo re m a r
riage, and th a t acq u ired afte rw a rd b y g ift, devise, o r d escent, as also
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1175
th e increase, re n ts, issues, an d profits of th e same, shall be h is or h e r
separate properly. T h e earn in g a n d accum ulations of the wife an d her
m inor child ren in h e r custody w hile she has lived or m ay live separate
and a p a rt from her husband, shall also be th e separate property of th e
wife. A ll property acquired by eith e r h u sb an d or wife during th e m a r
riage, except th a t w hich is acquired b y g ift, devise, or descent, or
earned by th e w ife a nd h e r m inor children w hile she has lived or m ay
live separate and a p a rt from h e r husband, shall be deem ed th e com m on
property of th e husband and w ife, a nd durin g th e coverture m ay be d is
posed of by th e h u sb an d only. M arried w om en o f th e age of tw entyone years and upw ards shall have th e w hole and exclusive control of
h er separate property, and th e sam e shall n o t b e liable for the debts,
obligations, or engagem ents of th e husband, and m ay be contracted,
sold, transferred, m ortgaged, conveyed, devised, or b equeathed by them
in th e sam e m a n n e r an d w ith lik e effect as if they w ere n o t m a rried
w hen th e y are seventeen years of age or over. M arried w om en of th e
age of tw enty-one years an d upw ards shall have th e sam e legal rights
as m en of th e age of tw enty-one years and upw ards, except th e rig h t of
suffrage a nd of h o lding office, a n d except th e rig h t to m ake c o n tra c ts
b in ding th e com m on pro p erty of th e h u sband and wife; an d shall b e
subject to th e sam e legal lia b ilitie s ; shall n o t be so construed as to pro
h ib it w om en from vo tin g a t school elections o r holding office as school
tru ste e s as now provided by law . M arried w omen m ay convey separate
property if seventeen years of age or older. ( S e e D o w e r , C o n v e y a n c e . )
I n j u n c t i o n is issued, w here p a rty is entitled to relief, and re stra in t,
is required of som e prejudicial act, where, pending litigation, an act is done
w hich tends to render ju d g m e n t ineffectual, and w hen applicant is entitled
u n d e r principles of e q uity. U nder certain conditions m ay be granted
e x p a r t e a t cham bers or b y consent. B ond m ay be fixed b y ju dge and
approved by clerk.
I n s u r a n c e . Insurance com panies m u st give bond i n sum of $15,000
fo r security of policy holders, or in lieu thereof, $15,000 of county or te rri
to rial interest bearing bonds m u st be deposited w ith territorial treasu rer.
A cts 1895, p. 35.
I n t e r e s t . May contract, in w ritm g, for any ra te of. N o usury laws.
W hen no express contract, on bond, bill, note, or in stru m e n t of w riting,
or judgm ent, for m oney lent, or due on settlem e n t of accounts from d a te
of a scertained balance, and m oney received for use of another, in te re st is
com puted a t 6 per cent per annum .
J u d g m e n t s . Judgm ents of d istric t courts becom e a lien upon a ll
real estate of jud g m en t debtor in the county as .soon as entered and
docketed. U pon filing w ith th e clerk of th e d istric t court a tra n sc rip t o f
ju d g m e n t from ju s tic e court or of distric t court of another county, th e
sam e becom es a lien on all real estate of ju d g m e n t debtor in the county.
N o execution can b e issued on any judgm ent after th e expiration of five
years from th e date of its rendition and entry, unless such ju d g m e n t be
revived by s c i r e f a c i a s or action for d e b t be brought thereon w ithin su ch
five years.
J u d i c i a l B o n d s. (S e e B o n d s .)
L e v y . (S e e E x e c u t io n s .)
L ic e n se s.
L i e n s . A ll p ersons w ho m ay labor or furnish m a te ria ls in th e con
s tru c tio n or rep airin g of any building, superstructure, canals, dam s, m ines,
or o th e r im provem ent, or cuts cordwood, shall have a lien on th e sam e, an d
in case o f buildings a nd superstructures, on th e lo t of la n d w heron th e
sam e is situ a te a nd connected therew ith. To fix a n d secure th e lien,
th e p erson p e rfo rm in g labor or fu rn ish in g m ate ria l m ust, w ith in six ty
days a fte r th e com pletion of such labor or th e fu rn ish in g of m a te ria ls,
file h is c o n tra c t in th e office of th e county recorder w here th e p ro p e rty
Is situ a te. I f th e co n tract be verbal, a duplicate copy o f th e bill o f
p a rtic u la rs should be m ade, under oath, an d one delivered to th e re co rd er
a n d filed fo r record and th e o th e r furnished th e p a rty ow ing th e debt,
or h is agent. Laborers’ and like liens are preferred to all subsequent liens,
m ortgages, an d incum brances, and such as lien claim ant had no notice.
S u it to foreclose such liens m u st be com menced w ith in six m onths after
filing th e sam e in the recorder’s office. In case of th e levy of w rit o f
attach m en t or execution, clerks, laborers, a nd em ployes of debtors have a
preference claim fo r wages for services perform ed sixty days before levy
of w rit, n o t exceeding $200, upon filing notice of claim unpaid w ith
creditor, debtor, a nd officer executing w rit. P roprietors o f hotels, board
ing houses, a nd lodging houses have special lien on all pro p erty or bag
gage deposited w ith th em by guests for price of guests’ entertain m en t.
A gister and liverym en have lien by statu te. ( S e e J u d g m e n t , M o r t g a g e . )
L i m i t a t i o n s . T o recover re a lty a gainst person in peaceable a n$
adverse possession under color of title, three years; against su ch posses
sion w here person pays taxes and h a s deed recorded, five years, otherw ise
te n years; to recover lots in city or village against person having recorded
deed, and p ays taxes, five years; w here p arty in possession claim s b y rig h t
of possession only, tw o years. P ersonal A ctions— One y e ar: Personal
injuries, m alicious prosecution, false im prisonm ent, libel, slander, seduc
tio n , b reach of prom ise. Tw o years: Trespass to property, detention or
conversion of personal property to ow n use, ta k in g and carrying aw ay
goods a nd c hattels; and in ju ries to person w here death ensues, to accrue
from date of death. T hree y ears: A ctions fo r d e b t n o t in w riting; on
stated or open accounts o th e r th a n m utual betw een m erchants o r th e ir
factors an d agents; all accounts, except as betw een m erchants an d factors
an d agents, lim itations ru n from date of each item of delivery. F o u r
years: F o r Denalties or dam ages on any b ond to convey real e sta te ;
betw een p a rtn e rs fo r settlem ent of partn ersh ip acc o u n ts; on m u tu a l o r
c u rre n t acco u n ts betw een m erchants, th eir factors or agents, to accrue
from cessation o f d ealings; upon judgm ent or in stru m e n t w ithout th e T er
rito ry ; d ebt evidenced by w riting w ithin th e T e rrito ry ; bonds of e x ecutors,
adm inistrators, or guardian, after death, removal, etc.; specific perform
ance; to contest w ill after discovery of frau d ; a nd w h e re no provision
is otherw ise m ade. F ive years: On dom estic judgm ent w h ere execution
has been issued w ith in one year a fte r rendition.
M in e s u n p aten ted are real estate fo r th e purpose of in h e rita n c e an d
conveyance. Location requires seven m onum ents, th re e a t each e n d ,
a nd one a t discovery, in w hich notice is to be placed on discovery; title
w ork c onsisting of a sh aft 4 x 6 x 10 fe e t deep, or its e q u iv a le n t in a n
open c u t so th a t rem oval in place is discovered 10 feet from th e su rface
m u st be done a nd notice recorded w ithin th re e m onths, and annual assess
m e n t w o rk am o u n tin g to $100, m aintained each year thereafter, until
p a te n t is ordered.
M in o r s . ( S e e S a v i n g s B a n k s . )
M o r t g a g e s . M ortgage m ay contain pow er of sale. W heth er it does
or not, m ortgage m ay be foreclosed b y s u it in distric t 'court. F ailu re of
m ortgagee to law fully release a satisfied m ortgage fo r seven days after de
m and fo r th e release, subjects h im to liab ility for $100 and actual
dam ages. M ortgages on real estate are executed, acknow ledged, and re
corded as conveyances o f real estate. ( S e e C o n v e y a n c e s , C h a t t e l M o r t a a g t ,
A c k n o w le d g m e n t s , R e d e m p t i o n .)
1176
BANKING AND COMMERCIAL LAWS—ARKANSAS.
N o t a r y P u b l i c . In all certificates a n d acknow ledgm ents th e date
o f ex p iratio n o f com m ission m u st be stated , as “ com m ission e x p ire » ----- ”
N o certificate o f holding office etc., is req u ired w hen notary acts in foreign
state o r country.
N o t e s a n d B i l l s o f E x c h a n g e . ( S e e B i l l s a n d N o t e s .)
P a r t n e r s h i p s using fictitious nam e m ay file certificate show ing
nam es o f p a rtn e rs w ith county recorders. F o reig n p artn erships m ay do so.
P o w e r s o f A t t o r n e y . N o special statu to ry provisions relative to.
T o confess ju d g m e n t m u s t b e executed subsequent to m a tu rity of d ebt
confessed, a n d m u s t b e acknow ledged. T o convey lan d s or release m o rt
gages should be acknow ledged as deeds, a n d recorded.
P r o b a t e l a w . (S e e S a v in g s B a n k s a n d A d m in is t r a t io n o f E s t a t e s .)
P r o t e s t . L iab ility o f draw er or indorser of b ill o r n ote m ay be fixed
by reg u lar protest and notice, etc., according to th e usages and custom of
m erchants. ( S e e B i l l s a n d N o t e s . )
R e c o r d s . T h e d istric t and pro b ate courts of each county a re courts
o f record. T he reco rd er's office in each county relates to title s of real
estate an d personal p ro p erty , and probably record in stru m en t therein is
n otice. T h e m inu tes o f th e San itary Live Stock B oard is notice to all
b ran d s an d m a rk s o f live stock.
R e d e m p t i o n s . F ro m ta x sales, one year. F ro m sheriff or ju d ic ia l
sales, six m o n th , a n d if deb to rs o r successors on in te re st a n y lien holder
m ay redeem w ith in th re e m onths th e re a fte r by serv ing and filing
s ta tu to ry notice. T h e sam e ru le applies to foreclosure of m ortgages
an d tru s t deeds w h e th er b y c o u rt o r u n d e r pow ers o f sale.
R e p l e v i n , i s denom inated “ claim and deliv ery ” for possession of
specific perso n al p ro p e rty w hich h as n o t b een seized u n d e r any process,
execution o r atta ch m e n t a g ain st th e property of th e plaintiff.
S e a l s . A d d itio n o r om ission o f seals o r scrolls to in stru m e n ts of
w ritin g in no w ay affect th e force and v a lid ity o f th e in stru m en t. In s tru
m en ts executed by corporations m u s t have a corporate seal attached.
S e r v i c e . A ll sum m ons upon persons shall be personal, or by leaving
a copy w ith copy o f com plaint a t th e u su al place, an d residence of defen d
an t, w ith a m em ber of h is fam ily over th e age of sixteen years; against
inco rp o rated city, o r tow n, o r v illag e; upon m ayor, clerk, secretary, or
treasu rer; ag ain st in co rp o ratio n o r jo in t sto ck association, upon president,
secretary, o r treasu rer, director or local agent rep resen tin g com pany, or
by leaving a copy o f sum m ons a n d com plaint a t th e principal office
d u rin g office h o u rs; u pon any railroad, telegraph, o r express com pany,
o r an y a g en t of su ch com pany w ho resid es in or m ay be found in th e
county where_ su it is b ro u g h t; u p o n dom estic corporation by serving on
sta tu to ry re sid en t ag en t, a n d w here th e re is no officer upon w hom
service can be m ade in th e T erritory, service m ay be had by delivering
du p licate cop!es of sum m ons and com plaint to th e secretary o f th e
T erritory, an d u p o n fo reig n corporation b y delivery to statutory^ agent.
S u its . (S e e A c t io n s .)
T a x e s . A side from those levied by legislative en actm ent for specific
purposes, as fo r th e con stru ctio n and m aintenance o f p u b lic institutions,
etc., T erritorial taxes are levied b y th e T erritorial B oard of E qualization;
co u n ty taxes by th e boards o f supervisors of th e several counties, and city
ta x e s b y th e com m on councils o f th e various cities. R ailroads are valued
fo r th e purpose pf ta x a tio n by th e T erritorial B oard of E qualization.
O ther property is valued b y county assessors. T he assessing of value
begins in F eb ru ary of each year. Taxes are levied on th e fo u rth
M onday o f A u g u st in each year. T h e lien attaches on th e first M onday of
M arch in each year. T axes becom e due n o t la te r th a n th e th ird M onday
in Septem ber, and becom e delinquent if n o t p a id on th e th ird M onday of
December. T he penalty for delinquency is 5 p er cent. W ithin CO days
a fte r delinquency a ctio n m ay b e com m enced in d istric t co urt to foreclose
d elin q u en t real estate ta x liens, a n d p ro p erty so ld as u n d e r execution.
P erso n al p ro p e rty ta x is collected b y d istress w arran t. R eal estate sold
fo r tax es m ay be redeem ed w ith in one year a fte r sale. T ax es a fte r d elin
q u e n cy draw in te re s t a t one p e r cent, p e r m o n th a fte r a ctio n com m enced
to foreclose ta x lie n p en alty o f tw enty-five p er cen t, is added.
T r a n s f e r o f C o r p o r a t i o n S to c k s . ( S e e C o r p o r a t i o n s . )
W i l l s . E very person aged tw enty-one years o r upw ard, or w ho m ay
be o r m ay hav e b een law fully m arried, being of sound m ind, shall have
pow er to m ake a la st w ill an d testam en t. W ills m u s t be in w riting, signed
by th e testato r, or b y someone fo r him , in h is presence a n d by his direction,
a n d m u st be a tte ste d b y tw o o r m ore credible w itnesses above the age of
fourteen years, in th e presence of each oth er and th e testator. W hen the
w ill is w holly w ritten by th e testato r, no w itnesses are necessary. N u n
cupative w ills m ay be m ade w hen pro p erty w illed does n o t exceed in
value $50, unless it be proved by th re e credible w itnesses th a t th e
te stato r called on som e person to ta k e notice and b ear testim ony th a t such
is his w ill, an d th a t th e testim ony, o r th e su b stan ce thereof, was com
m itted to w riting w ith in six days a lte r th e m ak in g o f su ch w ill; in such
case th e am o u n t w illed is n o t lim ited. W ills are revocable by subsequent
w ill, codicil, o r declaration in w riting, executed w ith lik e form alities as
in ex ecution o f w ill, o r by te sta to r d estroying, canceling, or o bliterating
th e sam e, o r cau sin g it to be done in his presence, o r b y subsequent
m arriage, and no provision is m ade fo r wife. Foreign w ills, th e probate
w hereof is duly au th en ticated , m a y be probated h ere. C ontests of can
n o t be in itiated a fte r one year fro m d aet o f probating.
S Y N O P S IS
O F
T H E
LA W S
O F
A R K A N SA S
R E L A T IN G TO
BANKING AND COMMERCIAL USAGES.
P rep a re d an d Revised by Messrs. R o se ,H em in g w a y ,C a n t r e l l & L ough
borough , A tto rn ey s a t Law , L ittle R ock. (S e e C a r d i n A t t o r n e y s '
L is t .)
A c c o u n t s verified by th e p lain tiff as ju s t an d co rre c t prove them selves
in s u its th e re o n unless denied u n d e r oath.
A c k n o w l e d g m e n t s m a y be ta k e n w ith in the S tate before th e
su p rem e o r circu it co u rt, o r a ju d g e th ereo f, o r c le rk of a n y c o u rt o f record,
o r a ju stic e of th e peace o r n o ta ry p u b lic; elsew h ere in th e U nited S tates
before a n y -c o u rt h aving a seal, o r clerk o f su ch court, n o ta ry public,
m ayor having a seal, o r co m m issio n er o f A rk a n sa s; w ith o u t th e U nited
S ta te s b efo re a n y co u rt h av in g a seal, m ayor of a city h av in g a seal, U nited
S tates consul, o r an y officer authorized by th e law s o f su ch c o untry to
p ro b ate conveyances of real e sta te , provided h e h as a seal.
A c t i o n s . S u its are prosecuted u n d e r a reform ed code o f civil pro ced
u re differing fro m th e N ew Y o rk code chiefly in m a in ta in in g th e d is tin c
tio n b e tw ee n law an d equity.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
A d m i n i s t r a t i o n o f E s t a t e s . E x ecu to rs a nd adm inistrators most
be re sid e n ts o f th e S tate a n d m u st give b ond in double th e value of the
property. F oreign e xecutors a n d a d m in istra to rs can m aintain actions in
o u r courts. C laim s a re p a id in th e follow ing o rd e r: F irst, funeralesp e n se s; second, expenses of la st illness; th ird , ju d g m e n ts w hich are liens
on th e lands of th e deceased; fo u rth , dem ands p resen ted w ith in one year1
fifth, dem ands presented w ith in tw o years. All dem ands n o t presented m
tw o years a re b arred . D em ands m u st be a u th e n tica te d by an affidavit to
th e effect th a t n o th in g has been p a id or delivered tow ard th e ir satisfaction
ex cep t w h a t “ s credited thereon, and th a t th e sum dem anded, naming it
is ju stly due. D em ands m u st first be presen ted to th e executor or admin!
istrato r, a nd if disallow ed b y him m ay be presented to th e probate court
o r sued u pon in any court of com petent jurisdiction.
A f f id a v its in th is S tate are m ade before a judge, ju stic e of the peace
n o tary public, or clerk of th e co u rt; w ith o u t the S ta te before a judge’
m ayor, n o ta ry public, ju stic e o f th e peace or com m issioner for this State!
A l i e n s m ay hold and tra n sm it property in all respects as residents.
A p p e a l s m ay be ta k e n from a ju s tic e of the peace to th e circuit court in
th irty d a y s : from th e probate co u rt to th e circuit c o u rt in one year; from
th e co u n ty co u rt to th e circuit court in six m o n th s ; and from th e circuit or
chancery courts to th e suprem e co u rt in one year, and m ay be prose
cuted w ith or w ith o u t supersedeas, w hich is granted on filing bond.
A r b i t r a t i o n . C ontroversies m ay be subm itted to a rb itratio n , and the
aw ard o f th e a rb itra to rs is filed in court, a nd is su b ject to review on equi
tab le principles only, a nd n o t fo r m atters of form . W hen n o t set aside
th e y are entered of record a n d becom e th e ju d g m e n t or decree of the court.
A r r e s t . D efendants m ay be arrested fo r debt only w hen th e plaintiff
files an affidavit charging th a t th e d ebt w as frau d u len tly contracted; that it
is ju s t, giving its am ount, and th a t he believes th a t th e defendant is about
to d e p art from th e S tate, and, w ith in te n t to defraud his creditors, has
concealed o r rem oved from th e S tate his property o r so m u ch thereof that
th e process o f th e court a fte r jud g m en t can n o t b e executed; or that the
defen d an t has m oney or securities in th e possession of him self or of others
for h is use, a nd is about to d e p a rt fro m th e S ta te n o t leaving sufficient
pro p erty therein to satisfy th e plaintiff’s claim. B ond m ust be given
conditioned to pay th e d e fe n d an t all dam ages th a t he m ay sustain if
w rongfully arrested.
A s s i g n m e n t s f o r t h e B e n e f i t o f C r e d i t o r s m ay be general or
p a rtia l, w ith o r w ith o u t preferences, a n d w here a ll th e d eb to r’s property
is conveyed, m ay e x ac t releases as a condition of preference. The as
signee, m u st file a n in v entory of th e pro p erty assig n ed an d give a bond
co n d itio n e d th a t he w ill execute th e tr u s t confided to h im , sell the prop
erty to th e b e s t advantage a n d p ay th e proceeds to th e creditors men
tio n ed in th e assig n m e n t acco rd in g to its term s, a n d fa ith fu lly perform
h is d u tie s according to law . H e m u st se ll w ith in 120 days a ll property
except th e choses In action, w hich he is re q u ire d to collect, th e sale to
be a t public auction a fte r th ir ty d a y s’ n o tic e . A ssig n m e n ts are vitiated
b y th e frau d of th e assig n o r alone, o r by a n y provision v ary in g from
th e re q u ire m e n ts of th e s ta tu te . A tta c k s u p o n th e m are m ade by pro
ceedings in equity, and, if th e y are set aside, th e proceeds are distributed
equally am ong all th e creditors. A ssignees close u p th e ir account!
u n d e r th e d ire c tio n of th e chancery co u rts. C o rporations can n o t prefer
c re d ito rs.
A t t a c h m e n t s m ay be su ed o u t w here th e d e fe n d a n t is a foreign
c o rporation or n o n resid en t, or has been a b se n t fro m the State four
m o n th s, o r has le ft th e S ta te w ith in te n t to d e fra u d his creditors, or ha!
le ft th e c o u n ty o f his residence to avoid th e service of sum m ons, or con
ceals h im se lf so th a t sum m ons can n o t be served on him , o r is about to
rem ove o r h a s rem oved a m a te ria l p a rt of his pro p erty o u t of the State,
n o t leaving en o u g h to satisfy h is creditors, o r h a s sold, conveyed or
o th e rw ise disposed o f his pro p erty , or suffered i t to b e sold w ith the fraud
u lent in te n t to cheat, h in d e r or delay h is creditors, or is a b out so to do.
T hey a re o b ta in e d by filing an affaaav it s tatin g th e n a tu re o f th e plain
tiff’s claim , th a t i t is ju s t, its a m o u n t a nd th e ex isten ce o f th e ground, and
by giving bond c o n d itio n e d to pay all dam ages th e d e fe n d a n t may sustain
if th e a tta c h m e n t is w rongfully su ed o u t. T h e defen d an t is allowed to
tra v e rse th e atta ch m e n t, an d th e affidavit a n d traverse th e n stand as
plead in g s u p o n w h ich th e issue is trie d . I f th e a tta c h m e n t is dissolved,
th e d e fe n d a n t m ay have a n a ssessm ent o f dam ages upon th e bond in the
sam e su it. P ersons claim ing th e a tta ch e d p ro p e rty m ay interplead in
th e sam e action. A tta c h m en ts m a y be sued o u t before th e debt is due
w here th e defendant has sold, conveyed, or otherw ise disposed of his
p roperty, or p e rm itte d it to be sold w ith th e frau d u le n t intent to
cheat, h in d e r or delay his creditors, or is a b o u t so to do, or is about to
rem ove h is property, o r a m a te ria l p a rt thereof, ou t of th e S ta te w ith the
in te n t o f cheating, h in d e rin g or delaying his creditors.
B a n k s . B an k in g m ay b e carried on by in d iv id u a ls or b y corporation!
organized u n d e r th e general incorporation law of th e S tate, or by national
b a n k s. T he S tate law s prescribe no special regulations fo r banking.
Officers a nd employes of banks are crim inally liable for m aking false re
ports, and fo r receiving deposits know ing b a n k to be insolvent.
B i l l s o f E x c h a n g e a n d P r o m i s s o r y N o t e s . N o person can be
charged as a n acceptor of any bill o f exchange unless h is acceptance shall
be in w riting. I f th e acceptance is w ritten on another paper than the
b ill, it shall n o t b in d the acceptor except in favor of th e person to whom
such acceptance shall have been show n, an d who, on th e faith thereof,
shall have received th e bill fo r a valuable consideration. E very holder
of a bill presenting it fo r acceptance m ay require an acceptance on the
bill; otherw ise th e bill can be protested fo r non-acceptance. Notwith
standing th e above provisions any one prom ising to accept a bill is liable
to any person to w hom a prom ise to accept it m ay have been made; and
w ho, on the fa ith of th e prom ise, has draw n an d negotiated th e bill. Any
person on w hom a bill is draw n, a nd to w hom th e sam e m ay be delivered
for acceptance, w ho shall destroy it or refuse w ith in tw enty-four hours
or such tim e as th e h older m ay allow to re tu rn the bill accepted or not
accepted to th e holder, shall be deem ed to have accepted th e sam e. The
following are th e holidays: Sunday, C hristm as, F o u rth day of July,
W ashington’s B irth d ay , and T h an k sg iv in g day. W hen th e bills become
due on a ny of th e se days, th e y are payable th e n e x t day preceding.
B ut th e holders need n o t give th e notice of dishonor u n til th e next day
a fte r such holiday. T he follow ing dam ages are allow ed w here a bill is
protested fo r non-acceptance or non-paym ent: I f th e b ill is drawn on
any place in th is State, tw o per cent; if payable in th e S tates of Alabama,
L ouisiana, M ississippi, Tennessee, K entucky, Ohio, In d ia n a , Illinois, or.
M issouri, or any p o in t on th e Ohio River, 4 p e r cen t; if draw n on any
other place in th e U nited States, 5 p er c en t; if beyond the lim its of the
U nited States, 10 p e r cent. I f th e bill be draw n by any person at any
place w ith in th is State, a t th e ra te o f 2 p e r cent; if draw n by any person
a t any place w ith o u t th is State, b u t w ithin th e lim its of th e U nited States,
6 p e r cent; if draw n by any person w ithout th e lim its of the United
States, 10 p er cent. • T he holder of a ny b ill p ro te ste d for non-payment or
non-acceptance Is en title d to c o sts of pro test and in te re st a t the rate of
10 p e r cent p e r annum on th e am ount of th e bill fro m d a te of protest.
T he te rm B ui of E x c h a n g e .includes all d ra fts or orders draw n by one
B A N K IN G A N D C O M M E R C IA L L A W S — A R K A N S A S .
person on another for the payment of a sum of money specified therein.
Bills and notes given for patented machines, implements, substance, or
Instruments of any kind, given to any citizen of this State, are not com
mercial paper, unless executed on a printed form, and showing for what
consideration they were executed. This applies to patent rights and.
I rights to use any patented thing of any kind. But this provision does not
I apply to merchants and dealers who sell patented things in the usual
course of business. All blank assignments are taken to have been made
onsuch day as shall be most to the advantage of the defendant. In other
I respects the general rules of commercial law apply.
Bills o f L ading. (See Warehouse Receipts and Rills of Lading.)
C hattel M o rtg ag es may be acknowledged and filed as other mortjjges, or they may be endorsed “This instrument is to be filed but not
recorded,” signed by the mortgagee, and may then be filed in the recorder’s
I ofce with the same effect as though recorded. Mortgages of personal
I property reserving in the mortgagor the power of disposition are fraudu
lent. (See Mortgages.)
C ollaterals are governed by the law merchant.
Contracts touching commercial matters are governed, by the law
merchant.
Conveyances may be either witnessed by two witnesses or acknowl
edged. (See Acknowledgments.) If witnessed they are proved by the
oath of two witnesses, and are then entitled to record as though acknowl- ■
edged. Dower can be relinquished only by the wife joining the husband.
The wife may convey property acquired since October 30,1874, by deed
ae a single person without her husband joining her, or by joining
with him in the form above. The wife may convey by power of attor
ney and make executory contracts of sale. Deeds which have been
recorded and are properly acknowledged prove themselves. Any sub
stantial departure from the form of acknowledgments prescribed by the
statute, such as the omission of the words “consideration”or “purposes,”
makesthe acknowledgment and record void; but statutes have been
passed from time to time curing defective acknowledgments previously
made.
C orporations are organized only under general incorporation laws.
Business corporations must consist of not less than three persons who
ihall elect a board of directors. The president and secretary are to be
elected by the board and the president must be a member of it. The
secretary snd treasurer must reside and keep the books of the company
within the State. The articles of association must be signed by the presi
dent and a majority of the directors, and must be accompanied by a cor
ticate signed in a like manner and sworn to by the president and a
mtjority of the directors, setting forth the purpose of the corporation, the
»mount ofits capital stock, the amount actually paid in, the names of its
stockholders ana the number of shares held by each respectively, and the
articles and certificate must be filed in the office of the clerk of the county
inwhich the corporation is to transact business and then with the clerk’s
endorsement in the office of the secretary of State. The stock can be
transferred only upon the company’s books, and a record of the transfer
hai to be deposited with the county clerk in order to be valid as against
creditors of the transferor. The corporation has a lien on its stock for
debts due from the stockholders. The president and secretary are
required to file with the county clerk an annual statement of its financial
condition, and in case of a failure to do so become liable for its debts. If
tie directors declare a dividend when the corporation is insolvent they
become liable for all the corporate debts. Any corporation which is
insolvent or has ceased to do business may be wound up on the suit of
any creditor or stockholder by a decree of the chancery court. Pref
erences by insolvent corporations are forbidden. Shares of stock are in
l denominations of $25 or $100. Foreign corporations before doing business
inthe State must file with the secretary of State a certified copy of their
j articles, a certificate showing the proportion of their capital stock in
vested in the State, and a certificate appointing an agent lor service and
Darning a place of business within its limits.
I Costs. In cases at law the winning party recovers his costs; in equity
; costs may be imposed at the discretion of the court.
I Courts. The supreme court is held at Little Rock and has jurisdic
tionof appeals from the circuit and chancery courts. In some counties
j leparate courts of chancery have been established, but in the greater
Dumber the circuit courts exercise common law and chancery jurisdic! tlon. The estates of deceased persons are entrusted exclusively to the
| probate courts, with right of appeal to the circuit and thence to the
I lupreme court. Claims against counties are heard by the county court,
ii also matters touching paupers and the like. The justices’ courts have
jurisdiction of matters of contract not exceeding $300, and matters of tort
j Dot exceeding $100. Two terms of the circuit and chancery court and
j lour of the county and probate courts are held in each county per year.
Creditor»’ B ills may be brought without first having obtained judgment at law. The insolvency of the defendant and want of remedy at law
maybe shown by parol evidence.
Days o f G race are controlled by the law merchant.
Deeds. (See Acknowledgments and Conveyances.)
Depositions may be taken in the State before any judge or clerk of
»court of record, justice of the peace,mayor, or notary public; out of the
\ 8tate before a commissioner for this State, judge, justice of the peace,
mayor, notary public or person commissioned by the court or by consent
! o! parties.
Descents and. D istrib u tio n s. Property descends to children and
; their descendants in equal parts; if no children, then to father, then to
i mother, then to brothers and sisters and their descendants in equal parts,
»ad in default of such to thenearest lineal ancestor or his descendants
iaequal parts per stirpes. In default of heirs the whole property goes to
! basband or wife, and in their default to the State. If the estate is ancesI W it goes to the blood of ihe ancestor from whom it was derived.
] Relations of the half blood inherit equally. Heirs take as tenants in
common.
Divorces are granted for, first, impotency; second, desertion for one
icar without cause; third, another wife or husband living at the time of
¡fa marriage; fourth, conviction of felony or other infamous crime;
fifth, habitual drunkenness for one year; cruel and barbarous treat
ment, or such indignities as render the plaintiff's condition intolerable;
etxth, adultery. Proceedings must be had in the county where the plaintiff
¡sides and the plaintiff must have resided in the State one year before
recommencement of the action, and must show that the cause of divorce
occurred in this State or was a ground for divorce in the State where it
occurred, unless plaintiff was then a resident of this State, and that the
cense of divorce occurred within five years before the beginning of the
•nit. Claims for alimony may be asserted either in the suit for divorce or
Va separate action. Upon a divorce each party is required to surrender
¡¡¡the other all property acquired from the other, and if the wife procures
«radivorce she takes one-third of the husband’s real and personal prop
erty.
75
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1177
D ow er. Where there are children the wife takes one-third of the
husband’s personal estate absolutely and one-third of the real estate of
which he was seized at any time during the marriage, for life, Whefe
there are no children she takes in a new acquisition one-half of the real
and personal estate absolutely as against heirs, or one-third absolutely as
against creditors. If it is an ancestral estate she takes one-half for life
against heirs and one-third for life against creditors.
E v id en ce. (See Repositions.) The courts take judicial notice of the
laws of the other States. Certified copies of official records and of recorded
deeds and mortgages ar,e admissable. If the execution of an instrument is
denied under oath the court may require production of the original. Books
of account of deceased merchants whose authenticity is verified by the
executor or administrator, are admissible, it being first shown that the
deceased had the reputation of keeping correct books. The courts may
compel the production of books, papers, and documents of all kinds. In
civil actions parties and witnesses having an interest may testify; but in
actions by or against executors, administrators, or guardians, neither party
can testify against the other as to any transactions or statements of the
testator, intestate, or ward unless called to testify by the opposite party.
The following persons are incompetent to testify: Persons convicted of
infamous crimes, infants^under ten years, persons of unsound mind. Hus
bands and wives can testify for each other only where one acts as the agent
for the other; and in respect of the agency. Confidential communications
made to attorneys, ministers of the gospel, priests, physicians, ‘and sur
geons are inviolable. (See Accounts.)
E x e c u tio n s from the circuit court are returnable in sixty days; those
from justices’ courts within thirty. They may be stayed for six months
by giving bond. They are a lien on the property of the defendant in the
county from the time they come to the officer’s hands. The officer before
levyingpn personal property, the title to which is doubtful, may require
the plaintiff to give him an indemnifying bond, and then suit must be
brought by the claimant upon the bond, The defendant and other judg
ment creditors have one year in which to redeem from the sale of real
estate. In case the writ is returned nulla bona the plaintiff may pro
ceed by bill of discovery against the defendant and examine him on oath,
and enforce a surrender of concealed property by imprisonment.
E x e m p tio n s . Unmarried persons are entitled to $200 and married
persons and heads of families to $500 in selected articles of personal
property as exempt against debts by contract. Persons who are married
or heads of families are entitled to a homestead as against all debts,
except the purchase-money, specific liens, laborers’ and mechanics’ liens,
taxes and claims for trust funds converted. The homestead in the
country is not to exceed 160 acres, and in town not to exceed one acre, nor
to be worth more than $2,500, but the country homestead is not to be
reduced to less than 80 acres nor the town homestead to less than onefourth of an acre, regardless of value. The homestead goes to the widow
and minor children, after the husband’s death. The homestead can only
be conveyed by deed in which the wife joins and which is acknowledged
by her, and if the husband neglects to claim the homestead the wife may
do so.
F o re ig n C o rp o ra tio n s shall, before doing business in the State, by
its president file in the office of the secretary oi State a certificate under
the seal of the company naming an agent, who shall be a citizen of this
State, upon whom service of process can be made. The certificate shall
state the principal place of business of the corporation; and service on
the agent shall bind it. The corporation mast also file a copy of its char
ter in the office of the secretary of State, and in the office of the county
where it opens an office, and must pay same fees as are required of home
corporations. These requirements do not. apply to railroad or telegraph
companies that had built lines in the State prior to Feb. 16 1899. If any
corporation fails to appoint an agent service of process on the auditor of
State shall bind it. Within six months after commencing business in the
State each foreign corporation must file in said offices a statement show
ing the proportional part of its capital stock invested in this State and in
the county. No foreign corporation can sue on any contract made in this
State until these provisions are complied wiih.
F r a u d . The English statute of fraudulent conveyances has been
re-enacted in this State.
G a rn ish m e n ts may be sued out pending suit upon giving bond in
double the amount garnished, or after judgment without bond.
H o lid ay s. (See Bills of Exchange and Promissory Notes.)
H u s b a n d a n d W ife. (See Married Women.)
In ju n c tio n s may be issued by circuit judges, chancellors, or the
judge of any court in which suit is brought. The person applying
for the injunction must give bond as the court or judge may direct.
In so lv e n c y . Any insolvent debtor may apply to the chancery court
for the appointment of a receiver, who may nave all attachments dissolved,
take possession of all the debtor’s assets, and pay the proceeds, first, to
laborers and employees whose claims may have accrued within three
months; second, to all creditors who will, execute a release; and third, to
the creditors generally.
I n te r e s t. The legal rate of interest is 6 per cent, but parties may
contract in writing for not exceeding 10 per cent. Interest exacted in
excess of 10 per cent forfeits the debt. In computing the interest com-^
missions paid to the agent of the lender are counted as interest. Where
usury is charged the borrower may go into equity and have the debt and
securities cancelled without tendering the amount lawfully due. Judg
ments bear the same rate of interest as the obligation sued on. Judg
ments against counties bear no interest.
J u d g m e n ts (see Interest) are liens upon the real estate of the
debtor in the county where rendered for three years. The lien may be
renewed and continued for three years by scire facias. Judgments of
th» United States and other courts can be made liens on- lands in coun
ties other than that where they are rendered by filing a certified copy in
the office of the circuit clerk.
Ju risd ic tio n . The supreme court has appellate jurisdiction from
the circuit and chancerv courts in all cases, and has a general superin
tending control over all inferior courts; and, in aid of this jurisdiction,
it may issue writs of error, supersedeas, certiorari, habeas corpus, prohi
bition, mandamus and quo warranto, and other remedial writs, and may
hear and determine them. The circuit courts have jurisdiction in all civil
and criminal cases not vested in some other court, with a superintending
control and appellate jurisdiction over county, probate, corporation
courts and justices of the peace. Chancery courts have jurisdiction in all
cases in equity not within that of justices of the peace. County courts
have original jurisdiction in all matters relating to county taxes, roads,
bridges, ferries, paupers, bastardy, vagrants, apprenticeship, and the
internal improvement and local concerns of the county. Taxes for countypurposes are levied by the quorum court, consisting of the county judge
1178
B A N K IN G A N D C O M M E R C IA L L A W S — A R K A N S A S .
and a majority of the justices of the county. Probate courts have juris
diction in matters relating to the probate of wills, estates of deceased per
sons, executors, administrators, guardians, and persons of unsound mind.
Appeals lie from the county and probate courts to tbe circuit courts.
Justices of the peace have exclusive jurisdiction in all matters of contract
where the amount in controversy does not exceed $100, exclusive of
interest, and concurrent jurisdiction with the circuit court in all matters
of contract where the amount does not exceed $S500, exclusive of interest;
and concurrent jurisdiction in suits for the recovery of personal property
where the amount does not exceed $300. Jurisdiction in misdemeanor
cases; also as examining courts; none where title to land or possession
thereof is drawn in question. Appeals from all of their judgments lie to
the circuit courts Corporation courts have the same jurisdiction as
justices of the peace.
L icen ses are issued to keepers of ferries, peddlers, liquor dealers, and
tavern keepers.
L im ita tio n s . Suits for the possession of real estate must be brought
within seven years, saving to minors, married women, and lunatics three
years after their disabilities are removed. Actions for recovery of lands
sold at judicial sales must be brought within five years, saving to minors
and lunatics three years after removal of disabilities. Actions for the
recovery of lands held under tax title must be brought in two years.
Actions for forcible entry and detainer, on contracts not in writing, for
trespass and for libel, within three years. Actions for criminal conver
sation, assault and battery, false imprisonment, and slander, within one
year. Actions on written instruments, within five years; oh judgments,
within ten years; on bonds of executors and administrators, within eight
years. In all cases, except actions for the recovery of lands, minors and
lunatics have, after removal of their disability, the statutory period in
which to sue. Verbal promises or acknowledgments do not take a
claim out of the statute. One year is allowed after dismissal of a suit in
which to begin a new action. No person can avail himself of a disability
which did not exist at the time the right of action accrued. Nq endorse
ment of payment made by the payee or on his behalf is sufficient proof
to take the case out of the statute.
L im ite d P a rtn e rsh ip s, for mercantile, mechanical, or manufactur
ing business may be formed by two or more persons. This does not
authorize a partnership for banking purposes. Limited partnerships may
consist of one or more persons to be called general partners, who shall be
jointly and severally responsible as general partners now are by law, and
one or more partners who shall contribute in actual cash payments a
specific sum as capital, who shall be called special partners, and shall not
be liable beyond the fund so contributed. The persons forming such
partnership shall sign a certificate, which shall contain the home of the
firm, the general nature of the business, the names of the general and
special partners, distinguishing them and showing their places of resi
dence, the amount of capital stock of each special partner and the period
when the partnership is to commence, and when it shall end. This must
be acknowledged before some judge or justice of the peace in this State,
and duly certified and filed in the office of the clerk of the circuit court of
the county in which the principal place of business shall be situated, and
in other counties where the firm shall have places of business. At the
time of filing the certificate an affidavit shall be filed by one of the general
partners stating that the sums contributed by each of the special partners
has been actually paid in cash. If the certificate is false in any respect all
the partners shall be liable as general partners. The terms of the partner
ship must be published at least six weeks in some newspaper in the State,
to be designated by the clerk of the circuit court of the county in which
the certificate is recorded. Such partnerships may be continued by mak' ing and recording new certificates. The business shall be conducted
under a firm in which the names of the general partners only shall be con-.
sidered, -without the addition of the word “ Company,” or any other
general term. Suits may be brought by or against the general partners in
the same way as-if there were no special partners. No part of the sum
contributed by a special partner shall be withdrawn by him; but any part
ner may receive lawful interest on the sum so contributed by him if such
payment does not reduce the original amount of the capital, after which
any profits that remain may be divided. A special partner may at any
• time examine into the state and progress of the business, and may advise
as to its management; but shall not transact any businsss on account of
the firm nor be employed as agent, attorney, or otherwise. If he violate
these provisions he shall be deemed a general partner. The firm can only
be dissolved prior to the time named in the certificate by notice of dissolu
tion filed in the clerk’s office and nublished four weeks in some newspaper
printed in this State.
M a rrie d W o m e n . The property, real and personal, of married
women remains their separate estate as long as they choose, and maybe
devised or conveyed without the husband’s assent, and is not subject to his
debts If she dies without making any disposition of her real estate, he is
entitled to curtesy. She may carry on any business or perform any services
on her own account, and her earnings are hers, and she may sue alone in
respect of her separate preperty. She can bind herself by contract only
in reference to her separate estate or business. She can not enter into
partnership with her husband. If she does not file a schedule of her
personal property, the burden of proof is on her to show that it is hers.
M in es a n d M ining. Under control of commissioner of mines. All
documents relating to mines must be recorded in the recorder’s office of
the county; and miners of the county may make by-laws regarding the
time, manner, and amount of work necessary to hold claims and other
rules and regulations not in conflict with law. Extensive provisions are
maria for the protection of the health and safety of miners. Acts 1893, p.
213. Miners have a lien on the output, machinery, and tools used to secure
payment for work done. Three years’ possession of «a mine, with work
required by law, gives possessoiy right.
M o rtg a g es are not liens as against any one, though such person
has actual notice of their existence, until they are acknowledged in
the form prescribed and filed for record. Mortgages of real estate
are recorded in the county where the land lies, and mortgages of
personal property in the county of the mortgagor’s residence. If the
mortgagor of personalty is a non-resident the mortgage is recorded in the
county where the property is situate. Sales under mortgages and deeds
of trust can be made only after appraisement, and the property must bring
two-thirds of the appraised value. In. case it is offered and fails to bring
the required amount real estate may be offered again after one year and
personal property after sixty days, and is then sold for what it will bring.
The mortgagor of real estate has one year from the date of sale in which
to redeem.
N o ta rie s have power to administer oaths, to take acknowledgments
of deeds and mortgages in or out of the State. (See Acknowledgments.)
They may take proof or acknowledgment of all writings relating to navi
gation and commerce, make declarations and protests; and certify under
seal the truth of all matters done by them officially; and such documents
are evidence in the courts.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
Notes and B ills of E xch a n g e . (See Bills o f Exchange and, Prom,
issory Notes.)
Pow ers of Atto rney. Lands may be conveyed by power of attorney,
which is acknowledged as deeds and recorded in the county where the
lands lie.
Prob ate L a w . (See Administration of Estates.)
Pro tests. (See Bills of Exchange and Promissory Notes.)
Records. (See Ackncnvledgments, Conveyances, Mortgages, Chattel
Mortgages, and Powers o f Attorney.)
Red em p tion . (See Executions.) Lands sold under mortgages may
be redeemed within twelve months. Lands sold under decrees foreclosing
mortgages executed since May 8, 1899, may be redeemed within the
same time. The debtor or other person desiring to redeem must pay to
the clerk of the court whence the execution issued or decree of sale was
made the purchase money, with 15 per cent per annum, and all lawful
charges, which shall be held for the benefit of the purchaser.
R e p le v in . The plaintiff in replevin may file an affidavit describing
the property, stating its value and the amount of damages he expects to
recover, his title, that the property is wrongfully detained by the defend
ant, that it has not been taken for a tax or under process against plaintiff,
and that his cause of action has accrued within three years, and upon
giving bond in double its value, the property shall be taken from the
defendant and given to the plaintiff pending the suit, unless the defend
ant within two days after it is taken gives a cross-bond.
R e v isio n . The constitution requires that the statutes shall be revised
every ten years. The last revision was in 1894.
Service of Summons shall be by delivering to the defendants a copy
of the summons or offering it to him, or by leaving a copy of the summons at
the usual place of abode of the defendant with some member of his family
over the age of fifteen years. If the defendant is a home corporation the ser
vice may be on the president, mayor, or chairman of the board of trustees, or
in their absence, on its cashier, treasurer, secretary, clerk, or agent; and in
case of railroad corporations, upon any station agent or person who has
control of any of its business, either as clerk, agent, or otherwise, who has
to report to the corporation employing them. If the defendant is an
incorporated bank, the service may be made upon its president or cashier,
if an incorporated insurance company upon the general officer of such
agency. Where the defendant is a foreign corporation having an agent in
this State, service may be upon him. If the defendant is an infant under
fourteen years, service must be on him, his father or guardian; and if
these can not be found, then upon his mother, or upon any other person
having care or control of the iniant, or with whom he lives. Where the
infant is over fourteen years of age, service may be made on him. Con
structive service may be had by publication in suits against a foreign cor
poration having no agent in this State, a non-resident of this State, against
any defendant who has departed the State with intent to delay or defraud
his creditors, or has been absent from the State four months, or has left
the county of his residence to avoid the service of a summons, or conceals
himaAlf so that a summons can not be served on him. Where either of
these facts appears from the affidavit of the plaintiff, a warning order is
maHp by the court or clerk, and it is published in some newspaper having
a bona fide circulation for at least four weeks.
T ax e s are a lien between vendor and purchaser from the first Mon
day in December. They are payable between the first Monday in Janu
ary and the 10th of April. In case of non-payment a penalty of 25 pel
cent is added. Lands may be redeemed within two years by paying
taxes, penalty, and costs, with 10 per cent interest. Minors, lunatics, and
persons in confinement may redeem within two years after their disability
is removed.
Testim on y. (See Evidence.)
T ra n sfe r of Corporation Stock. (See Corporations.)
T ru st Com panies. Must have a paid up capital of $50,000, and in
counties with a population exceeding 50,000, they must have a subscribed
capital of not less than $100,000. They may exercise all the powers
commonly conferred on such companies
W arehouse R e ce ip ts and B ills of L a d in g shall not be given
except where the commodities mentioned are received on the premises,
and are under the control of the warehouseman at the time of its issuance.
No warehouseman shall sell, encumber, ship, or remove any such com
modity for which a receipt has bee a given without the written assent of
the holder of the receipt. The same provisions cover owners and agents
of boats and vessels. All warehouse receipts and bills of lading are
made negotiable by written endorsement and delivering the same as bills
of exchange and promissory notes, and no printed or written conditions,
clauses, or provisions inserted in or attached to them shall in any way
limit their negotiability or impair the rights and duties of the parties
thereto, or persons interested therein, or such conditions shall be void.
Warehouse receipts given by any warehouseman or other person for
goods and other commodities deposited, and all bills of lading given
by any carrier, boat, vessel, railroad, transportation, or transfer com
pany may be transferred by endorsement and delivery; and the trans
feree shall be deemed to be the owner of such commodities so far
as to give validity to any pledge, lien, or transfer given, made, or
created thereby; and no property so stored or deposited shall be delivered
except on surrender and cancellation of such receipts and bills of lading,
unless such receipts and bills of lading have the words “not negotiable
plainly written or stamped on their face. Penalties are denounced
against any warehouseman or other person who shall violate any of tbe
provisions of this statute. So much of the act as forbids the delivery
of property except the surrender and cancellation of the original receipt
or bill of lading shall not apply to property replevined or removed by
operation of law.
•
W ills . A will must be subscribed by the testator or by some person for
him at his request in the presence of two attesting witnesses, or he mns
acknowledge it to be his will to each of them. He must declare at tne
time of his subscription of acknowledgment to the witnesses that tne
instrument is his will and testament. The witnesses must sign their
names at the end of the will as witnesses at the request of the testatorIf however, the entire will is in the hand-writing of the testator, it neeu
not be attested, but may be proved by three witnesses familiar with hw
hand-writing. Such will, however, can not be pleaded in bar oi
attested will. Wills are revoked by marriage and birth of issue, unies»
pro visi on for such issue is made by settlement, or is provided fqr in the wui.
The will of an unmarried woman is revoked by her marriage. A««bom children, not mentioned in the will, take their regular distributive
share. If the testator fails to mention in his will any child, or its legal
representatives, living at the time of executing the wdl^ he shall, as w
such child, or its representatives, be deemed to have died intestate, auu
such child, or its representatives, is entitled to its regular share.
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
SYNOPSIS OF THE LAWS OF CALIFORNIA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S .
Prepared and Revised by Messrs. Chickering & Gregory, Attorneys and
Counselors at Law, San Francisco. 0See Card in Attorneys' List.)
A ccounts. An account is assignable, and the assignee may maintain
an action thereon, although the account is assigned merely for collec
tion. No action or proceeding thereon abates by the transfer of any
interest therein, but it may be continued in the name of the original
party, or the court may allow the person to whom the transfer is made
to be’ substituted. Actions on accounts are barred within two years,
and each item of the account becomes outlawed two years after its
respective date. Where, however, the action is brought to recover a bal
ance due upon a mutual account, the cause of action is deemed to have
accrued from the date of the last item proved in the account on
either side. An account consisting of debits on the one hand, and pay
ments on the other, is not such a mutual account. (.See Actions.)
A ck n o w led g m e n ts. Before an instrument can be recorded, its exe
cution must be acknowledged by the person executing it, or if executed
by a corporation, by its president and secretary, or other person executing
the same on behalf of the corporation, or proved by a subscribing wit
ness. When an acknowledgment is properly made, but defectively certi
fied any party interested may have a t action in the Superior Court to
obtain a judgment correcting the certificate. Any person interested under
an instrument entitled to be proved for record may institute an action to
obtain a judgment proving such instrument. The proof or acknowledg
ment of an instrument may be made at any place within this State before
a justice or clerk of the supreme court, or a judge of the superior court
and within the city, county, or township for which the officer was
appointed or elected, before either: (1) A clerk of a court of record;
(2) a county recorder; (3) a court commissioner; (4) a notary public; (5)
a justice of the peace. The acknowledgment of an instrument must not
be taken, unless the officer taking it knows or has satisfactory evidence,
on the oath or affirmation of a credible witness that the person making
such acknowledgment is the individual who is described in, and who
executed the instrument; or if executed by a corporation, that the person
making such acknowledgment is the president or secretary of such cor
poration, or other person who executed it on its behalf. Officers tak
ing and certifying acknowledgments or proof of instruments for record,
must authenticate their certificates by affixing thereto their signatures,
also their seals of office, if by the laws of the State or country where the
acknowledgment or proof is taken, or by authority of which they are
acting, they are required to have official seals. If acknowledged before
a justice of the peace, to be used in any other county than the one
in which the justice resides, it must be accompanied by a certificate
of the clerk of the county showing that at that time the justice was
authorized to take the same, and that the clerk is acquainted with
his handwriting, and that the signature is genuine. An officer tak
ing proof of the execution of any instrument must, in his certificate
endorsed thereon, or attached thereto, set forth all the matters required
by law, to be done or known by him, or proved before him on the pro
ceeding, together with the names of all the witnesses examined before
him, their places of residence respectively, and the substance of their
testimony.
A ctions. All civil actions, except those in which the supreme court
has original jurisdiction, are commenced by filing a complaint, upen
which plaintiff may, at any time within one year thereafter, have a
summons issued; and if the action be brought against two or more
defendants, who reside in different counties, plaintiff may have a sum
mons issued for each of the counties at the same time. A copy of the
summons must be served on each defendant. If served with the sum
mons within the county in which the action is brought, defendant
has ten days to appear and answer; if served elsewhere in the State he
has thirty days. A copy of the complaint must be served with the sum
mons. Where the person on whom service is to be made resides out of
the State, or has departed from the State, or cannot after due diligence
be found within the State, or conceals himself to avoid service of
summons, or is a foreign corporation having no managing or business
agent, cashier or secretary, within the State, and the fact appears by
aflldavit to the satisfaction of the court, or the judge thereof; and it also
appears by such affidavit, or by the verified complaint on file, that a cause
of action exists against the defendant in respect to whom service is to be
made, or that he is a necessary and proper party to the action; or when it
appears by such affidavit or by the complaint on file therein, that it is an
action which relates to, or the subject of which is real or personal property
within this State, in which such person or foreign corporation defendant
has or claims a lien or interest, actual or contingent, therein, or in which
the relief demanded consists, wholly or in part, in excluding such person
or foreign corporation from any interest therein, such court or judge may
make au order that the service be made by publication of summons. Pro
vided that win re service is sought to be made upon a person who cannot
after due diligence be found within the State, it must first appear to the
court by the affidavit aforesaid that there has not been filed, on behalf of
such person in the county where such action is pending, a verified certifi
cate of residence and place where service of summons upon him may be
made; or that if such certificate was so filed and the defendant cannot be
found at the place named in said certificate, which latter fact must be
made to appear by the certificate of the sheriff of the county wherein said
defendant in said certificate claims residence and which certificate of
said sheriff must show that service of said summons was attempted
upon said defendant at the place named in said certificate of resi
dence, but that said defendant was not to be found thereat. The
order must direct the publication to be made in a newspaper, to be
designated, as most likely to give notice to the person to be served and for
such length of time as maybe deemed reasonable, at least once a week, but
publication against a defendant residing out of the State, or absent there
from, must hot be' less than two months. In case of publication, where
the residence of a non-resident or absent defendant is known, the court or
judge must direct a copy of the summons and complaint to be forthwith
deposiied in the postofflce, directed to the person to be served, at his place
of residence. But personal service of a copy of the summons and com
plaint out of the State is equivalent, when publication is ordered, to pub
lication and deposit in postoffice, and in either case the service of the
summons is complete at the expiration of the time prescribed by the order
for publication. The plaintiff must annex to, and publish with, the
summons a notice, signed by himself or his attorney, stating the nature of
the cause of action, and of the relief sought; and when the action is to
recover possession of, or to enforce a lien upon, or to determine the title
to, real or personal property, such fact must also be stated, and the prop
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1179
erty described. Whenever the public records in the office of a county
recorder have been lost or destroyed, in whole or in any material part,
by flood fire or earthquake, any person who claims an estate of inherit
ance or for life in, and who is by himself or his tenant, or other person,
holding under him, in the actual and peaceable possession of any real
property in such county, may bring and maintain an action in rem in
the superior court for the county in which such real property is situ
ated, to establish his title to such prODerry and to determine all adverse
Claims thereto. In such cases ihe defendants shall be described as “All
persons claiming any interest in or lien upon the real property herein
described or any part thereof,” and summons must be issued directing
the defendants to appear within three months after the first publication
thereof. The publication of summons must be made for two mouths in
a newspaper of general circulation, published in the county in which the
action is Drought, said paper to be designated by order of court, and to
such summons a memorandum must be appended and published disclos
ing the names of all persons who are mentioned in the affidavit made by
the.plaintiff as having any lien or interest in the property. A copy of the
summons and memorandum mu-t be posted in a conspicuous place on
each separate parcel of the property described in the complaint within
fifteen days after the firt-t publication of the summons. , The plaintiff
must declare in his affidavit all knowledge that he has with regard to all
persons claiming any interest or lien in ihe property, eiving their names
and their addresses, and if said persons can be found within the state,
personal service of summons and copy of complaint and affidavit muse
be made upon them, but if- the address discloses their residence to be
outside of the state, a copy of the summons, memoranda, complaint
and affidavit must be mailed to such persons within fifteen days after
first publication of summons, and if no address is known 'o the plaintiff,
a copy of said papers must be mailed to the person named, addressed to
the county seat of the county in which the action is brought. All such
actions in rem must be commenced before July 1,1909.
A d m in istratio n of E state s. All the property, real and personal,
of a decedent dying intestate, passes to the heirs of the intestate subject
to the control of the probate court and to the possession of any
administrator appointed by that court for the purposes. Every estate
and interest in real or personal property to which heirs, husband,
widow, or next of kin might succeed, may be disposed of by will.
Upon the admission of a will to probate, letters testamentary are
granted by the superior court to the executor named in the will,
unless he be dead or incapable or unwilling to act, in which case letters
testamentary are issued to an administrator with the will annexed,
appointed by said court. The person to whom the letters testamentary
are issued must execute the trust as provided for in the will, under the
supervision and control of the court. Bonds are required of such parly
for faithful performance of his duty, unless waived by the will. In
case of intestacy, letters of administration are issued to the person
entitled thereto, in the following order: 1. Surviving husband or wife,
or some competent person named by either. 2. Children. 3. Father or
mother. 4. Brothers. 5. Sisters. 6. Grandchildren. 7. Next of kin
entitled to share in the distribution of the estate. 8. Public adminis
trator. 9. Creditors. 10. Any person legally competent. Where the
person entitled to administration is a minor or incompetent, letters m ust
be granted to his or her guardian, or to any other person entitled to
letters of administration in the discretion of the court. Administrators
must give bonds like executors, and must, as directed, account to the
court. No person is competent or entitled to serve as administrator or
administratrix who is not a bona fide resident of the State. Notice must
be given by the administrator by publication to all the creditors to
come in and prove their claims. The creditor failing to present his
claim within the time limited is forever barred. The administrator
must pay the debts of the decedent, and if sufficient funds do not come
into his hands for that purpose, he may, under the direction of the
court, sell the personal property, or if that be insufficient, then the real
property for that purpose. Provision may be made for the support of
the family during the pendency of the proceedings. The executor,
under a will, must pay the legacies resorting to the property in like
manner as for debts.
Affidavits. An affidavit may be used to verify a pleading or a paper
in a special proceeding, to prove the service of a summons, notice, or
other paper in an action or special proceeding; to obtain a provisional
remedy, the examination of a witness or a stay of proceedings, and for
certain other statutory purposes. An affidavit to be used Defore any
court, judge, or officer of this State may be taken before any officer author
ized to administer oaths. An affidavit taken in another State of the United
States to be used in this State, may be taken before a commissioner
appointed by the goverhor of this State to take affidavits and depositions
in such other State, or before any notary public in another State, or before
any clerk of a court of record having a seal. An affidavit taken in a
foreign country to be used in this State, may be taken before an am
bassador, minister, consul, vice-consul, or consular agent of the United
States, or before any clerk of a court of record having a seal, in such
foreign country.
A lie n s. Any alien may take, hold, and dispose of property, real or
personal, within this State. Resident aliens may take in all cases by suc
cession as citizens; but no non-resident foreigner can take by succession
unless he appears and claims such succession within five years after the
death of the decedent to whom he claims succession. No person except
a native-born or naturalized citizen, of the United States, shall be em
ployed in any department of the State, city, and county, or incorporated
city or town government in this State.
A p p e als. An appeal may be taken to the district courts of appeal or
the supreme court in the following cases, and to the court as shown
below: 1. From a final judgment entered in an action, or brought
into a superior court from another court. 2. From an order granting or
refusing a new trial, or granting or dissolving an injunction, or refusing to
grant or dissolve an injunction, or dissolving or refusing to dissolve an
attachment, or changing or refusing to change the place of trial, from any
special order made after final judgment, from any interlocutory judgment,
order, or decree hereafter made or entered in actions to redeem real
or personal property from a mortgage thereof, or lien thereon, de
termining such right to redeem real or personal property from a mortgage
thereof, or lien thereon, determining such right to redeem, and direct
ing an accounting, and from such interlocutory judgment in actions
for partition as determines the rights and interests of the respective
parties, and directs partition to be made. 3. From a judgment or order
granting or refusing to grant, revoking or refusing to revoke, letters
testamentary, or of administration, or of guardianship, oi admitting or
refusing to admit a will to probate, or against or in favor of the
validity of a will, or revoking or refusing to revoke the probate thereof,
or against or in favor of setting apart property, or making an allowance
for a widow or child, or against or in favor of directing the partition
sale, or conveyance of real property, or settling an account of an execu
tor, administrator or guardian, or refusing, allowing, or directing the
distribution or partition of the estate or any part thereof, or the payment
1180
B A N K IN G A N D C O M M E R C IA L L A W S —C A L IF O R N IA .
of a debt, claim or legacy, or distributive share, or confirming or refusing
to confirm a report of an appraiser or appraisers setting apart a home
stead., The supreme court has appellate jurisdiction in all cases in
equity, except such as arise in the justices’ courts; also in all cases at
law which involve the title or possession of real estate or the legality of
any tax, impost, assessment, toll or municipal fine, or in which the
demand exclusive of interest, or the value of the property in controversy
amounts to $*¿,000; also in all such probate matters as may be provided
by law; also on questions of law alone in all criminal cases where the
judgment of death has been rendered; the said court also has appellate
jurisdiction in all cases, matters and proceedings pending before a dis
trict court of appeal which shall be ordered by the supreme court to be
transferred to itself for hearing and decision. The district courts of
appeal have appellate jurisdiction on appeal from the superior courts in
all cases at law in which the demand exclusive of interest or the value of
the property in controversy amounts to $300 and does not amount to
$2,000; also in all cases of forcible entry and detainer (except such as
arise in the justices’ courts) in proceedings in insolvency, and in actions
to prevent or abate a nuisance; in proceedings in mandamus certiofari
and prohibition, usurpation of office, contesting elections and eminent
domain, and in such other special proceedings as may be provided by
law (excepting cases in which appellate jurisdiction is given to the
supreme court); also on questions of law alone in all criminal cases
prosecuted by indictment or information in a court of record, excepting
criminal cases where judgment of death has been rendered. Said courts
also have, appellate jurisdiction in all cases, matters and proceedings
pending before the supreme court which shall'be ordered by the supreme
court to be transferred to a district court of appeal for hearing and
decision. Any party dissatisfied with a judgment rendered in a civil action
in a police or justice’s court may appeal therefrom to the superior court
of the county, at any time within thirty days after the notice of entry of
the judgment. The appeal is taken by filing a notice of appeal with the
justice or judge, and serving a copy on the adverse party. The notice
must state whether the appeal is taken from the whole or a part of the
judgment, and if from a part, what part. .
A r b itr a tio n . Person» capable of contracting may submit to arbitra
tion any controversy that might be the subject of suit between them, ex
cept a question of title to red property in fee or for life. This qualifica
tion, however, does not include questions relating merely to the partition
or boundaries ol real estate. The submission to arbitration must be in
writing, and it may stipulate that it be entered as an order of the superior
court, for which purpose it must be filed by the clerk. When so entered
the submission cannot be revoked except by mutual cotisent. If the
submission is not made an order of the court, it may be revoked at any
time before the award. The arbitrators have power to appoint a time
and place for hearing, to adjourn from time to time, to administer oaths,
and to make an award. All the arbitrators must meet and act together,
but when met a majority governs. They must be duly sworn to perform
their duty. Their award must be in writing, signed by the arbitrators, or a
majority of them, and delivered to the parties, and when the submission
is made by an order of the court, must be filed by the clerk who enters the
same, after the expiration of five days, in the judgment book, and there
upon it has the effect of a judgment. The award may be vacated for
fraud, misconduct, or excess of power on the part of the arbitrators, and
under certain circumstances the court may modify the award.
A r r e s t . In an action for the recovery of money upon a contract, express
or implied, when the defendant is about to depart from the State with the
intent to defraud his creditors, he may be arrested; also in an action for
a fine of penalty, or for money or other property embezzled or fraudulently
misapplied by a public officer, officer of a corporation, or an attorney,
factor, broker, agent, or clerk in the course of his employment, or by any
person in a fiduciary capacity; also in cases of misconduct, neglect in
office or any professibnal employment,or willful violation of duties; also
in actions to recover the possession of personal property where it has
been concealed or remoyed or disposed of to prevent its being found;
also in cases where the defendant has been guilty of a fraud in contract
ing the debt or obligation for which action is brought; or in concealing
ordisposing of property; also when he has removed or disposed of his
property or is about to do so with intent to defraud creditors. The order
of arrest is made by the judge of the court when it appears that a cause
exists therefor, bv affidavit of plaintiff or some other person. The judge
must require a'written undertaking, with sufficient sureties in a sum not
less than $500, to the effect that plaintiff will pay all costs and damages if
the arrest be wrongful. Persons may be arrested also in proceedings as
for contempt to enforce civil remedies, Administrators, executors, and
guardians of the estates of minors may be required to give a strict account
of property or money in their hands, held by them in that capacity, and
in case of refusal may be arrested and imprisoned, where property or
monev has been embezzled or fraudulently converted by them. In the
judgment of a justice of the peace, if the defendant is liable to arrest and
imprisonment thereon, that lact must be stated.
A ssig n m ents fo r the B en e fit o f C re d ito rs. Assignments for
the benefit of creditors must be written and acknowledged by the assignor
or his agent authorized thereto in writing and recorded, and must be made
to the sheriff of the county where the insolvent resides, or. if a non-resi
dent where he has property. Assignments for the benefit of creditors
are void against any creditor not assenting thereto in a number of
instances ; for example, where they give one debt a preference over
another and where they tend to coerce any creditor to release or compro
mise his demand. Employes have a preferred claim, however, for a
limited amount of their wages or salaries. At any time, or from time to
time after the expiration of thirty days from the first publication ol
notice to the creditors, the assignee may, at his discretion, declare and pay
dividends to all creditors whose claims have been presented and allowed.
A tta c h m e n ts may be issued at the time of issuing the summons, or at
anv time thereafter. All property not exempt from execution may be
attached in an action upon a contract, express or implied, for the direct
navment of money, where the contract is made or payable m this State,
and is not secured by any mortgage or lien upon real or persraal prop
er tv * dr if originally so secured, the security becomes valueless without any
act of plaintiff. Also in an action upon a contract, express or implied,
against a non-resident. Also in an action against a defendant, not resid
ing in this State to recover a sum of money as damages arising from an
ininrv to property in this State in consequence of negligence, fraud or
other wrongful act. The clerk of the court must issue the writ of
attachment upon receiving an affidavit by or on behalf of the plaintiff,
showing (1) That the defendant is indebted to the plaintiff, specifying
the amount of such indebtedness over and above all legal set-offs or
counter-claims, upon a contract, express or implied, for the direct pay
ment of money, and that such contract was made or is payable m this
State and that the payment of the same has not been secured by any
mortgage or lien upon real or personal property, or any pledge or personal
property, or, if originallv so secured, that such security has, without any
act of plaintiff, or the person to whom the security was, given, become
valueless, or 2. That the defendant is a non-resident of the State, and
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
is indebted to plaintiff, specifying the amount of such indebtedness over
and above all legal set-offs or counter-claims, upon a contract expressed or
implied, or 3. That plaintiff’s cause of action against defendant is one to
recover a sum of money as damages (specifying the amount thereof)
arising from an injury to property in this State in consequence of the
negligence, fraud or other wrongful act of the defendant, and that the
defendant is a non-resident of the State, and 4. That the attach
ment is not sought, nor is the action prosecuted, to hinder, delay, or
defraud any creditor of defendant. Before issuing the writ, the clerk
must require a written undertaking on the part of the plaintiff, in
a sum not less than $200, and not exceeding the amount claimed
by plaintiff, with sufficient sureties, to the effect, that, if the defend
ant recovers judgment, the plaintiff will pay all costs that may be
awarded to the defendant, and all damages that he may sustain, by
reason of the attachment, not exceeding the sum »pecified in the under
taking, and that if the attachment is discharged on the ground that the
plaintiff was not entitled thereto, the facts required in the above not being
existent, the plaintiff will pay all damages which the defendant may have
sustained by reason of the attachment, not exceeding the sum specified in
the undertaking. At any time after the issuing of the attachment, but
not later than five days after the notice of the levy thereof, the defendant
may except to the sufficiency of the sureties. If he fails to do so he is
deemed to have waived all objections to them. When excepted to, the
plaintiff’s sureties, upon notice to the defendant of not less than two nor
more than five days, must justify before a judge, and upon failure to jus
tify, or if others in their place fail to justify, at the time and place ap
pointed, the judge must issue an order vacating the writ of attachment.
B a n k C o m m issio n ers. No corporation can use the money ortransaetthe business of a savings bank, or bank, or Danking corporation, with
out first procuring from the bank commissioners a license until the first
day of July next thereafter. Every person engaged for himself, or any
person being the cashier, manager or agent of two or more persons, not
incorporated, engaged in the business of banking in the state must apply
for and take out a license for such privilige and shall be subject to ibe
same requirements, limitations, liabilities, penalties and provisions as
incorporated banks or banking corporations. It is the duty of the bank
commissioners to personally make a full examination at least once in each
year of each bank, or similar institution, for the purpose of ascertaining its
condition and solvency; and if they find that such institution is violating
its charter or is conducting business in an unsafe manner, they should com
municate with the attorney-general, who shall immediately commence
suit to enjoin and prohibit it from transacting any further business. The
commissioners must examine, under oath, any of the officers, agents or
servants of the corporation relative to its affairs and condition, and
whoever shall neglect or refuse shall be deemed guilty of a misde
meanor. Any bank or banking corporation, including banks in liquida
tion or insolvency, shall, whenever required by the board of bank com
missioners, make a report in writing to the commissioners, verified by the
oath of its president and secretary or cashier, or its two principal officers.
Said report shall show the actual financial condition of the corpora
tion. Private banks are included in the terms “banks or banking cor
porations,” and they must report in like manner to the bank commission
ers. The president of every savings bank, savings and loan society, and
every other bank, depository, society, or institution in which deposits of
money are made, whether any interest or dividend is paid, or agreed to
be paid, thereon or not, must, within fifteen days after the first day of
January of every odd-numbered year, return to the Board of Bank Com
missioners a sworn statement showing the amount placed to his credit,
the last known place of residence or postoffice address, and the fact of
death, if known, to such president of every depositor who has not made a
deposit therein or withdrawn therefrom any part of his deposit, or any part
of the interest or dividends thereon, for a period of more than ten years
next preceding. Such president must give notice of these deposits in one
or more newspapers published in or nearest the town, city, or city and
county where such bank, society, or other institution is situated, or has
its principal place of business, at least once a week for four successive
weeks, the cost of such publication to be paid pro rata out of such
unclaimed deposits. This provision does not apply to any deposit made
by, or in the name of, a person known to the president to be living, and
which with the accumulation thereon, is less than $50. The board of
bank commissioners must incorporate in their subsequent report each
return made to them as provided in this section. Any president of either
of the institutions mentioned in this section who neglects or refuses to
make the sworn statement required thereby is guilty of a misdemeanor.
B a n k s. The business of banking may be carried on by any corpora
tion, organized for that purpose, under the general laws of the State, or by
any individual or copartnership, except it be a special copartnership.
A banker has a general lien dependent upon possession of all property in
hia hands belonging to a customer for the balance due to him from such
customer in the course of the business. There is no limitation upon the
right to maintain an action for the recovery of money or other property de
posited with any bank, banker, trust company, or savings and loan society.
B a n k s, S avings. No savings bank can Invest in bonds, securities or
evidences of indebtedness, public or private, except United States bonds,
or those of the State of California and of the counties, cities, or cities and
counties or towns or school districts of the State of California, or bonds
of railroad or street railroad corporations having their principal place of
business in the State of California, unless such savings bank has a capital
stock or reserve fund paid in of not less than $100.000. No such corpo
ration must loan money except on adequate security on real or personal
property, and such loan must not be for a longer period than ten years.
The surviving husband or wife of any deceased person, or the next of km of
such decedent, may, without procuring letters of administration, collect of
any savings bank any sum which said deceased may have left on deposit
in such bank, provided the said deposit shall not exceed the sum of $500.
B ills a n d N otes. Negotiable Instruments. A negotiable instrument
is a written promise or request for the payment of a certain sum of money
to order or bearer. It must be made payable in money only, and without
any condition not certain of fulfillment. The person to whom it is made
payable must be ascertainable at the time the instrument is made; it may
give the payee an ootion between the payment of the sum specified and
the performance of any other act, but as to the latter the instrument is
not within the provisions of this title. It may be with or without date,
and with or without the designation of the time or place of payment, it
may contain a pledge of collateral security, with authority to dispose there
of. A negotiable instrument must not contain any other contract than
as above specified. Bills of exchange, promissory notes, bank notes,
checks, bonds, and certificates of deposit are negotiable instruments. Any
date may be inserted by the maker of a negotiable instrument, whether
past, present, or future; and the instrument is not invalidated by his
death or incapacity at the time of the nominal date. Days of grace are
not allowed. Acceptances must be in writing by the drawee or by an
acceptor for honor, and may be made by the acceptor writing his name
across the face of the bill with or without other words. The acceptance or
a bill of exchange by a separate instrument binds the acceptor to one
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
vrko, upon the faith thereof, has the hill for value or other good considera
tion. The holder of a bill of exchange, if entitled to an acceptance thereof,
may treat the bill as dishonored if the drawee refuses to write across its
face an unqualified acceptance. An unconditional promise in writing to
accept a bill of exchange is a sufficient acceptance thereof in favor of
every person who. upon the faith thereof, has taken the bill for value. The
protest of a notary, under his hand and official seal, is prima facie evi
dence of the .facts contained therein. A bill of exchange, if accepted with
the consent of the owner by a person other than the drawee, or an acceptor
for honor, becomes, in effect, the promissory note of such person, and all
prior parties thereto are exonerated. If a promissory note, payable on
demand or at sight, without interest, is not duly presented for payment
within six months from its date, the indorsers thereof are exonerated,
unless such presentation is excused.
B ills of L a d in g . A carrier must subscribe and deliver to the con
signor, on demand, any reasonable number of bills of lading ot the same
tenor. A bill of lading is an instrument in writing signed by a carrier, or
his agent, describing the freight so as to identify it, stating the name oi
the consignor, the terms of the contract for carriage, and agreeing or
directing that the freight be delivered to the order or assigns of a speci
fied person at a specified place. Bills of lading are negotiable, and all the
title to the freight which the first holder had when he received it passes to
every subsequent indorsee thereof in good faith, and for value in the
ordinary course of business with a like effect and in like manner as in the
case of a bill of exchange. When a bill of ladingis made to “ bearer,” the
simple transfer thereof by delivery conveys the same title as an indorse
ment. A carrier is exonerated from liability by delivery of the freight in
good faith to any holder of a bill of lading therefor, properly indorsed
or made in favor of the bearer. When a carrier has given a bill of lading
he may require a surrender or a reasonable indemnity against claims
thereon before delivering the freight.
C h a tte l M o rtg a g es may be made upon the following personal prop
erty, and none other: Locomotives, engines, and other rolling stock of a
railroad; steamboat machinery; the machinery used by machinists,
foundrymen, and mechanics; steam engines and boilers; mining machin
ery; printing presses and material; professional libraries; instruments
of surveyors, physicians, or dentists; upholstery, furniture, and house
hold goods; oil paintings, pictures, and works of art; all growing crops,
including grapes and fruit; vessels of more than five tons burden; instru
ments, negatives, furniture and fixtures of a photograph gallery; the
machinery, casks, pipes, tubes, and utensils used in the manufacture or
storage of wine, fruit-brandy, fruit-syrups, or sugar; also wines, fruitbrandy, fruit-syrup, or sugar, with the cooperage in which the same are
contained; pianos and organs; iron and steel safes; cattle, horses, mules,
swine, sheep, goats, and turkeys, and the increase thereof; harvesters,
threshing outfits, hay presses, wagons, and farming implements; the
equipments of a livery stable, including buggies, carriages, harness,
and robes; abstract systems, books, maps, papers, and slips of searchers
of records; raisins and dried fruits, cured or in process of being cured;
also all boxes, fruit graders, drying-trays, and fruit ladders; bees and
bee-hives, apiaries and apiary stock, including frames, combs and extractois, also honey at apiaries; machinery, tanks, stills, agitators, leachers and apparatus used in producing and refining petroleum, asphaltum,
fuel oils, lubricating oils and greases; the bedroom furniture, carpets,
tables, stoves, ranges, cooking utensils and all furniture and equipments
usually found in a hotel. Where the mortgage covers certain of the
above articles, the interest on the loan may not exceed VA per cent per
month, and no bonus is allowed. In the absence of delivery and con
tinued change of possession, the chattel mortgage will be void as to credi
tors of the mortgagor unless acknowledged or proved, certified, and
recorded, as required in cases of grants of real property and accompanied
by affidavits of all the parties that it is inade in good faith, and without
any design to hinder, delay or defraud creditors.
Claim s A g a in st E s ta te o f D e c e a se d P e rso n s. Immediately upon
the appointment of an executor or administrator he must publish in
some newspaper of the county—if there be one, if not then in some news
paper designated by the court—a notice to the creditors of the decedent,
requiring all persons having claims against the estate to exhibit them,
with the necessary vouchers, to the executor or administrator at the
place of his residence or business, to be specified in the notice. Such
notice must be published as often as the court shall direct, but not less
than once a week for four weeks. The time expressed in the notice must
be ten months after its first publication when the estate exceeds in value
the sum of $10,000, and four months when it does not. All claims arising
upon contracts, whether the same be due or not due or contingent, must
be presented within the time specified in the notice, and any claim not so
presented is barred forever, provided that when it is made to appear by the
affidavit of the claimant to the satisfaction of the court that the claimant
had no notice as provided, by reason of being out of the State, it may
be presented at any time before a decree of distribution is entered. Every
claim must be supported by affidavit, showing that the amount is justly
due and that no payments have been made which are not credited, and
that there are no offsets to the same, but if the claim be not due when
presented, or be contingent, the particulars of such claim must be stated.
The executor or administrator may, in addition to the affidavit, require
satisfactory vouchers or proofs to be produced in support of the claim.
Every claim properly presented for allowance must be indorsed by the
executor or administrator, showing his allowance or rejection. If allowed
it must be presented to the fudge of the superior court for his
approval, and he must indorse upon it his allowance or rejection. Every
claim so allowed and approved, or a copy thereof, must, within thirty
days thereafter, be filed with the court and be ranked among the acknowl
edged debts of the estate, to be paid in due course of administration.
When, however, a claim is rejected, either by the executor or adminis
trator or the judge, the holder must bring suit in the appropriate court
thereon, within three months after the date of its rejection, if it be then
due, or within two months after it becomes due, otherwise the claim is
forever barred. Judgment rendered against the decedent in his lifetime,
or after his death, on verdict prior to his decease, must be presented as
in any other claim. No claim can be allowed which is barred by the
statute of limitations. Claims against the estate are paid in the follow
ing order: 1. Funeral expenses. 2. The expense of last sickness.'
3. Debts having preference by the laws of the United States. 4.
Judgments rendered against the decedent in his lifetime and mortgages
in the order oi their date. 5. All other demands against the estate.
C o lla te ra ls are governed by the law relating to pledges of personal
property. A pledge is a deposit of personal property by way of security
for the performance of any act Delivery of the thing pledged is essen
tial to the validity of the bailment. Where the debtor has obtained
credit or an extension of time by a fraudulent misrepresentation of the
value of the property pledged by or for him, the creditor may demand a
further pledge.to correspond with the value represented; and in default
thereof may recover his debt immediately, though it be not actually due.
When the performance of the act for which the pledge is given is due in
whole or in part, the pledgee may collect what is due to him by the sale
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1181
of the property pledged. But before the property can be sold the pledgee
must demand performance thereof from the debtor, if he can be found,
and must give actual notice to the pledgor of the time and place at which
the property pledged will be sold, at such a reasonable time before the
sale as will enable the pledgor to attend, but notice of the sale may be
waived by the pledgor at any time. The sale must be by public auction
and must be for the highest obtainable price. After the sale the pledgee
may deduct from the proceeds the amount due and the necessary
expenses of sale and collection, and must pay the surplus to the pledgor.
The pledgee, or a pledge holder, may purchase the property pledged
when the same is sold at public auction. A pledgee can not sell any
evidence of debt (collateral) pledged to him, except the obligations of
governments, states, or corporations; but he may collect the same when
aue. In all cases, instead of selling property pledged, the pledgee may
foreclose the right of redemption by a judicial sale under the direction
of a competent court, and in that case may be authorized by the court to
purchase at the sale.
*
C o n tra c ts. All persons are capable ,of contracting except, minors,
persons of unsound mind, and persons deprived of civil rights. Acontract made expressly for the benefit of a third person, may be enforced
by him at any time before the parties thereto rescind it. Consent of the
parties must be free, mutual, and communicated by each to the other, and
Is deemed to be fully communicated between the parties as soon as the
party accepting a proposal has put his acceptance in course of transmis
sion to the proposer. A consideration may be executed or executory in
whole or in part. The following contracts are invalid unless the same
or some note or memorandum thereof is in writing, and subscribed by
the party to be charged, or his agent. 1. An agreement that by its terms
is not to be performed within a year from the makiDg thereof. 2. A
special promise to answer for the debt, default, or miscarriage of another,
except in certain cases, the general type of which is where the party
making the promise has assumed the obligation as a principal obligation.
8. An agreement made upon consideration of marriage other than mutual
promise to marry. 4. An agreement for the sale of goods, chattels, or
things in action, at a price not less than $200, unless lhe buyer accepts or
receives part of such goods or chattels, or the evidences, or some of them,
of such things in action, or pays at the time some part of the purchase
money; but when a sale is made at auction, an entry by the auctioneer in
his sale book at the time of the sale of the kind of property sold, the
terms of the sale, the price,, and the names of the purchaser and person on
whose account the sale was made, is a sufficient memorandum. 5. An
agreement for the leasing for a longer period than one year, or for the
sale of real property or of an interest therein; and such agreement, if
made by an agent of the party sought to be charged, is invalid unless the
authority of the agent is in writing, subscribed by the party sought to be
charged. 6. An agreement authorizing or employing an agent or broker
to purchase or sell real estate for compensation or a commission. 7. An
agreement whiGh by its terms is not to be performed during the lifetime
of the promisor, or an agreement to devise or bequeath any propeity, or
to make any provision for any person by will. The execution of a con
tract in writing, whether the law requires it to be written or not, super
sedes all the negotiations or stipulations concerning its matter which pre
ceded or accompanied the execution of the instrument.
C onveyances. An estate in real property, other than an eslate at
will, or for a term not exceeding one year, can be transferred only by
operation of law, or by an instrument in writing, subscribed by the party
disposing of the same, or by his agent thereunto authorized in writing.
A fee simple title is presumed to be intended to pass by a grant of real
property, unless it appears from the face of the grant that a lessor estate
was intended. A grant of real property may be made in the following
form: “ I, A. B., grant to C. D. all that real property situated in (insert
name of county) county, State of California, bounded (or described) as
follows: (Here insert description, or if the land sought to be conveyed
has a descriptive name, it may be described by the name, as for instance:
‘ The Norris Ranch.’) Witness my hand this (insert) day of (insert
month), 18—. A. B.” The use of the word “ grant” implies the follow
ing covenants: 1. That previous to the time of the conveyance the
grantor had not conveyed the same estate, or any right, title, or interest
therein to any person other thin the grantee. 2. That such estate is at
the time of the execution of the conveyance free from incumbrances,
done, made, or suffered by the grantor. Subsequently acquired title
passes by operation of law to the grantee, or his successors. Instru
ments entitled to be recorded must be recorded by the county recorder
of the county in which the real property affected thereby is situated.
Every conveyance of real property, acknowledged or proved and certi
fied and recorded as prescribed by law, from the time it is filed with the
recorder for record, is constructive notice of the contents thereof to sub
sequent purchasers and mortgagees, and every conveyance of real
property other than a lease for a term not exceeding one year is void
as against any subsequent purchaser or mortgagee of the same property,
or any part thereof, in good faith and for a valuable consideration,
whose conveyance is first duly recorded. Any person in whom the title
of real estate is vested, who shall afterwards, from any cause, have his or
her name changed, must in any conveyance of real estate so held, set
forth the name in which he or she derives title to said real estate.
C o rp o ra tio n s. Private corporations may be formed by the volun
tary association of any three or more persons, in the manner prescribed
by statute. A majority of such persons must be residents of this
State. Private corporations may be formed for any purpose for which
individuals may lawfully associate themselves. Articles of incorporation
must be prepared setting forth (1.) the name of the incorporation, (2.) the
purpose for which it is formed, (3.) the place where its principal business
is to be transacted, (4.) the term for which it is to exist, not exceeding
fifty years, (5.) the number of its directors or trustees, whieh shall not be
less than five, and the names and residence of those who are appointed
for the first year. This does not strictly apply to lodge, hall, and benevo
lent corporations, or those formed for social purposes. The number’of
directors of corporations for profit, except those above mentioned as ex
cepted, may be increased or diminished, by a majority of the stockholders
of the corporation to any number, not less than three, who must be mem
bers of the corporation. A certificate of such number must be filed how
ever. A copy of the articles of incorporation, certified by the secretary of
State, must be filed with the county clerk of every county where the cor
poration purchases, acquires or locates property, within sixty days after
such purchase or location. Before the secretary of State issues to any
railroad, wagon-road, or telegraph corporation, a certificate of the filing
of articles oi incorporation, there must be filed in his office an affidavit
of the president, secretary, or treasurer named in the articles, that the
required amount of the capital stock thereof has been actually subscrib
ed, and 10 per cent, thereof actually paid to a treasurer for the benefit of
the corporation. Upon filing the articles of Incorporation in the office
of the county clerk of the county in which the principal business of the
company is to be transacted, a copy thereof, certified by the county clerk,
with the secretary of State, and the affidavit above mentioned where
such affidavit is required, the secretary of State must issue to the cor-
1182
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
poration over the great seal of the State a certificate that a copy of thq
articles containing the required statement of facts has been filed in his
office, and thereupon the persons signing the articles, and their associates
and successors, shall he a body politic and corporate by the name stated
in the certificate, and for a term of fifty years, unless it is in the articles
of incorporation otherwise stated, or in the code otherwise specially pro
vided. Every corporation now ’n existence must file a copy of its articles,
certified by the secretary of State, in the office of the county clerk in every
county in which it holes any property, and if it acquires any property in
any other county it must within ninety days thereafter file with the
county clerk of that county, such certified copy of its articles of incorpo
ration. A copy of the articles of incorporation, certified by the secretary
of State, must be filed with the county clerk of every county where
the corporation acquires or locates property within sixty days after such
purchase or location. A copy of any articles of incorporation filed in
pursuance of this chapter, and certified by the secretary of State, must
be received in all the courts, and other places as prima facie evidence
of the facts therein stated. Upon every corporation which has hereto
fore obtained or which shall hereafter obtain a charter or certificate of
incorporation from this State, or any foreign corporation heretofore or
hereafter incorporated, and doing business in this State, there shall be
an annual license tax of $20, to be paid between the first day of July and
four o’clock in the afternoon of the first day of September of each year
to the secretary of State, who shall pay the same itno the State treasury,
to be paid into the general fund of the State. Whenever articles of in
corporation have been lost <r destroyed by conflagration or other public
calamity, a copf of the certified copy of said articles filed in the office of
the secretary of Starts, duly certified by the secretary of State, m aybe
filed in the office of the county clerk of the county where such articles of
incorporation were on file at. the time of their loss or destruction.
Minutes, records, r eals, assessment books, certificates of stocks or bonds
or otner papers or records of any corporation Just or destroyed by confla
gration or other publ'C calamity may be restored by decree of court ren
dered at hearing fixed upon petition therefor and held at least twenty-five
days and not more than thirty days after the completion of three weeks’
publication of notice in a newspaper of the coun’y where the principal
place of business of the corporation is located, personal service of the
notice being made upon all persons affected residing within the State,
and whose addresses are known, notice being mailed to the countyseat
of the county where the principal place of business is located in the case
of persons affected but whose addresses are unknown. (See Foreign
Corporations.')
Liability o f Stockholders. Each stockholder of a corporation is indi
vidually and personally liable for such proportion of its debt and
liabilities as the amount of stock or shares owned by him bears to the
whole of the subscribed capital stock or shares of the corporation, and
for a like proportion only of each debt or claim against the corporation.
Any creditor of the corporation may institute joint or several actions
against any of its stockholders for the proportion of this claim, payable
by each, and in such action the court must ascertain the proportion of
the claim or debt for which each defendant is liable, and a several judg
ment must be rendered against each in conformity therewith. If any
stockholder pays his proportion of any debt due from the corporation
incurred while he was such stockholder, he is relieved from any further
personal liabilities for such debt; and if an action has been brought
against him for such debt, it shall be dismissed as to him upon his pay
ing the costs, or such proportion thereof as may be properly chargeable
against him. The liability of each stockholder is determined by the
amount of stock or shares owned by him at the time the debt or lia
bility was incurred, and such liability is not released by any subsequent
transfer of stock. The term “ stockholder,” as used in this section, shall
apply not only to such persons as appear by the books of the corporation
to De such, but also to every equitable owner of stock, although the same
appears on the books in the name of another, and also to every person who
has advanced the installments or purchase money of stock in the name of
a minor, so long as the latter remains a minor; and also to every guardian
or other trustee who voluntarily invests any trust funds in the stock. Trust
funds in the hands of a guardian or trustee shall not be liable under the
provisions of this section by reason of any duch investment, nor shall the
person for whose benefit the investment is made be responsible in respect
to the stock, until he becomes competent and able to control the same;
but the responsibility of the guardian or trustee making the investment
shall continue until that period. Stock held as collateral security, or by
a trustee, or in any other representative capacity, does not make the
holder thereof a stockholder within the meaning of this section, except in
the case above mentioned, so as to charge him with any proportion of the
debts or liabilities of the corporation; but the pledgor, or person, or
estate represented is to be deemed the stockholder as respects such liabili
ties. Incorporations having no capital stock, each member is individu
ally and personally liable for his proportion of its debts and liabilities,
and similar actions may be brought against him, either alone or jointly
with other members, to enforce such liabilities as by this section may be
brought against one or more stockholders, and similar judgments may
be rendered. The liability of each stockholder of a corporation formed
under the laws of any other state or territory of the United States, or of
any foreign country, and doing business within this State, shall be the
same as the liability of a stockholder of a corporation created under the
constitution and laws of this State.
Costs. Costs are allowed of course to the plaintiff upon judgment
in his favor in the following cases: 1. In an action for the recover}
of real property. 2. In an action to recover personal property where
the value is $300 or over, such value to be determined by the jury,
court, or referee by whom the action is tried. 3. In an action for the
recovery of money or damages, when the plaintiff recovers $300 or .more.
4. In a special proceeding. 5. In an action involving the title or posses
sion of real estate, or the legality.of 'any tax, impost, assessment toll, or
municipal fine. Costs must, of course, be allowed to the defendant upon
a judgment entered in his favor in the above actions. In other actions
costs may be allowed or not, and if allowed, may be apportioned between
the parties, on the same or adverse sides in the discretion of the court.
But no costs can be allowed in an action for the recovery of money or
damages when the plaintiff recovers less than $300, nor in an action to re
cover the possession of personal property, when the value is less than
$300. The prevailing party in justices’ courts is entitled to costs of the
action, and also of any other proceedings taken by him in aid of an
execution, issued upon any judgment recovered therein. If the plaintiff
in his complaint, or by notice served and filed at least ten days before the
trial, offers to permit judgment to be taken against him, and in favor of any
defendant for a sum specified, and the verdict is not for any greater sum,
such defendant must not be allowed any costs incurred after the making
of such offer, and the plaintiff may recover from such defendant such of
his costs incurred after the making of the offer, as the court in its discre
tion, deems just. Otherwise no costs must be allowed against any defend
ant, and every defendant to whom damages are awarded shall recover his
costs which must be deemed to be a part of the assessment in his favor.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
When the plaintiff in an action or special proceeding resides out of the
State, or is a foreign corporation security for the costs and charges, which
may be awarded against such plaintiff, may be required by the defendant.
When required proceedings must be stayed until an undertaking, executed
by two or more persons is filed with the clerk, to the effect that they will
pay such costs and charges as may be awarded against the plaintiff by
judgment, or in the progress of the action or special proceedings, not ex
ceeding the sum of $300. Additional undertaking may be required by
the court upon proof that the original undertaking is unsufficient.
C o u rts. Terms and Jurisdiction. Justices' courts have civil juris
diction : 1. In actions arising on contracts for the recovery of money, only
if the sum claimed., exclusive of interest, does not amount to $300, and
the jurisdiction of a justice of the peace in all cases where money judg
ment is recoverable is limited to $300. 2. In actions for damages for
injury to the person, or for taking, detaining, or injuring personal prop
erty, or for injury to real property, where no issue is raised by the verified
answer of the defendant involving the title to or possession or the same, if
the damages claimed do not amount to $300 3. In actions to recover the
possession of personal property, if the value of such property does not
amount to $300. 4. In actions for a fine, penalty, or forfeiture not
amounting to $300 given by statute, or the ordinance of an incorporated
city or town, where no issue is raised by the answer involving the legal
ity of any tax, impost, assessment, toll, or municipal fine. 5. In actions
upon bonds or undertakings conditioned for the payment of money, if
the sum claimed does not amount to $300, though the penalty may exceed
that sum. 6. To take and enter judgment for the recovery of money on
the confession of a defendant, when the amount confessed, exclusive of
interest, does not amount to $300. 7. Also concurrent jurisdiction with
the superior courts, within their respective townships. In actions of for
cible entry and detainer, where the rental value of the property entered
upon or unlawfully detained does not exceed $25 per month, and the
whole amount of damages claimed does not exceed $200. Also in actions
to enforce and foreclose liens on personal property, where neither the
amount of the liens nor the value of the property amounts to $300.
Superior Court. The jurisdiction of the superior court is of two
kinds: 1. Original. 2. Appellale. The superior couit has original
jurisdiction in all cases in equity; in all civil actions in which the sub
ject of litigation is not capable of pecuniary estimation; in all cases at
law which involve the title or possession of real property, or the legality
of any tax, etc., and in all other cases in which the demand, exclusive of
Interest or the value of the property in controversy, amounts to $300;
of actions of forcible entry and detainer, of proceedings in insolvency;
of actions to prevent or abate a nuisance; of all matters of probate, of
divorce and for annullment of marriage; and of all such special cases and
proceedings as are not otherwise provided for. They also have power to
issue writs of mandamus, certiorari, prohibition, quo warranto, and of
habeas corpus on petition by or on behalf of any person in actual custody
in their respective counties. Injunctions and writs of prohibition may
be issued and served on legal holidays and non-judicial days. The
superior courts have appellate jurisdiction in cases arising in justices’
and other inferior courts in their respective counties provided the appeal
be taken within thirty days of the judgment.
District Courts of Appeal. The State is divided into three appellate
districts, each of which has a court of appeals with three justices. These
courts have appellate and original jurisdiction. The general line of
demarkation between the supreme court and these courts is the amount
of money or the value of the property involved. (See Appeals.)
Supreme Court. Has original and appellate jurisdiction. In the
exercise of original jurisdiction it shall have power to issue writs of man
damus, certiorari, prohibition, and habeas corpus; it shall also have
power to issue all other writs necessary and proper for the complete exer
cise of its appellate jurisdiction. There are no terms of court, in the
strict sense, in this State. The courts of this State are presumed to be
always open for the transaction of business. The supreme court holds
six sessions annually. At Sacramento, in May and November; at San
Francisco, in January and July; at Los Angeles, in April and October.
D ays o f G ra ce . Days of grace are not allowed.
D eposition*. The deposition of a witness out of this State may
be taken upon a commission issued from the court under the seal of the
court, upon an order of the court, or a judge or justice thereof, on the
application of either party, upon five days’ previous notice to the other.
If the court be a justice’s court, the commission shall have attached to
it a certificate under seal by the county clerk of said county to the effect
that the person issuing the same was an acting justice of the peace at
the date of the commission. If issued to any place within the United
States, it may be directed to a person agreed upon by the parties, or
if they do not agree, to any judge or justice of the peace or commis
sioner selected by the court, or judge, or justice issuing it. If issued to
any country out of the United States, it may be directed to a minister,
ambassador, consul, vice-consul, or consular agent of the United States
in such country, or to any person agreed upon by the parties. The com
mission must authorize the commissioner to administer an oath to the wit
ness. The testimony of a witness.out of the State may be taken by depo
sition in an action, at any time after the service of the summons or ths
appearance of the defendant; in a special proceeding, at any time after a
question of fact has arisen therein. Deposit ions must be taken in the form
of question and answer. The words of the witness must be written down,
in the presence of the witness, by the officer taking the deposition or by
some indifferent person appointed by him. It may be taken down in short
hand in which case it must be transcribed to long hand by the person who
took it down. When completed, it must be carefully read to or by the
witness and corrected by him in any particular, if desired, by writing or'
causing his corrections to be written at the bottom of the deposition, and
must then be subscribed by the witness. If the parties agree in writingto
any other mode, the mode so agreed upon must be followed. Special pro
ceedings are necessary to take depositions in a country the laws of which
do not permit the execution of a commission to take testimony.
Depositions in this State. The testimony of the witness in this State
may be taken by deposition in an action at any time after the service
of summons or the appearance of defendant, and in a special proceeding
after a question of fact has arisen therein, in certain enumerated cases.
Depositions fo r Use out of the State. Any party to an action or
special proceeding in a court or before a j udge of a sister state, may
obtain the testimony of a witness residing in this State, to be used in such
action or proceeding, in the cases mentioned following: * If a com
mission to take such testimony has been issued from the court, or a judge
hereof, before which such action or proceeding is pending, on producing
the commission to a judge of the superior court with an affidavit satis
factory to him of the materiality of the testimony, he may issue a
subpoena to the witness, requiring him to appear and testify before the
commissioner named in the commission, at a specified time and place.
If a commission has not been issued and it appear to a judge of the
superior court, or a justice of the peace, by affidavit satisfactory to him
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
1, That the testimony of the witness is material to either party. 2.
That a commission to take testimony of such witness has not been issued.
3. That according to the law of the State where the action or special
proceeding is pending, the deposition of a witness taken under such
circumstances, and before such judge or justice, will be received in the
action or proceeding, he must issue a subpoena requiring the witness to
appear and testify before him at a specified time and place. Upon the
appearance of the witness, the judge or justice must cause his testimony
to be taken in writing, and must certify and transmit the same to the
court or judge before whom the action or proceeding is pending, in such
manner as the law of that State requires.
D escent a n d D istrib u tio n o f P r o p e r ty . Property, both real and
personal, of an intestate passes to bis heirs. A surviving wife succeeds
to one-half of the community property, i. e., all property acquired by
husband or wife during the marriage, which does not include property
acquired by either husband or wife by gift, bequest, devise or descent,
which is separate property. Dower interest does not exist. The separate
estate is distributed as follows: If the decedent leaves a surviving hus
band or wife and only one child, or the lawful- issue of one child, in equal
shares to the surviving husband or wife and child or issue of such child. If
a surviving husband or wife and more than one child living, or one child liv
ing and the lawful issue of one or more deceased children, one-third to the
surviving husband or wife, and the remainder in equal shares to the chil
dren and to the lawful issue of any deceased child by right of representa
tion. Put if there be no child living, the remainder goes to all the lineal
descendants, and if they are in the same degree of kindred to the de
cedent they share equally, otherwise by right of representation. If the
decedent leaves no surviving husband or wife, the whole estate goes to
the issue—the issue of children taking by right of representation. If
there is no issue the estate goes one-half to the surviving husband or
wife and the other half to the father and mother in equal shares, or, if one
be dead, to the survivor; if there be no father or mother, then their onehalf goes in equal shares to the brothers and sisters or to their representa
tives. If there is no issue, or husband or wife, the estate goes to the
father and mother, or the survivor, or, if both be dead, then in equal
shares to the brothers and sisters, and to the children of any deceased
brother or sister by right of representation. If the decedent leave a sur
viving husband or wife, and neither issue, father, mother, brother, nor
sister, the whole estate goes to the surviving husband or wife. If the
decedent leaves neither issue, husband, wife, father, mother, brother, nor
sister, the estate must go to the next of kin in equal degree. These are
the principal provisions of the law of succession. Tenancy by the court
esy is not known to our law. If the person dies testate, all property
passes as directed by the will.
D istress to r K e n t is not known, but judgment for rent and damages
for unlawful detainer may be had, and property not exempt from execu
tion may be levied upon to satisfy the judgment.
»
D ivorce. A vinculo matrimonii may be decreed by the superior court
for adultery, extreme cruelty, willful desertion, willful neglect, habitual
intemperance, or conviction of felony. A marriage may be annulled:
1. If the party seeking the annullment was under the age of legal con
sent, and the marriage was contracted without the consent of parents or
guardian. 2. If the former husband or wife of either party was living
and such marriage was in force. 3. If either party was of unsound
mind. 4. If the conseut of either party was obtained by fraud. 5. If
consent was obtained by force. 6. If either party was physically in
capable of entering the marriage state.
D ow er. (See Husband and Wife.)
E vid en ce. The testimony of witnesses is taken in three modes: 1. By
affidavits. 2. By deposition. 3. By oral examination. The written
words control when an instrument consists partly of written words and
partly of printed form. (See also Depositions.)
E x ec u tio n s may issue immediately upon the entry of judgment. No
right of stay exists except by order of the court in its discretion. There is
no right of redemption of personal property. An execution may be issued
at any time within five years after the entry of the judgment, and after the
lapse of five years the judgment may be enforced or carried into execution
by leave of court upon motion, or by judgment for that purpose, founded
upon supplemental proceedings. Execution may issue against the prop
erty of a judgment debtor afrer his death, only if the judgment be for
recovery of real or personal property, or the enforcement of liens thereon.
E x e m p tio n s. The following property is exempt from execution:
1. Chairs, tables, desks, and books, to the value of $200. 2. Necessary
household, table and kitchen furniture belonging to the judgment debtor,
including one sewing machine, stoves, stove-pipes and furniture, wearing
apparel, beds, bedding and bedstead, hanging pictures, oil paintings and
drawings drawn or painted by any member of the family, and family
portraits, and their necessary frames, provisions actually provided for
individual or family use sufficient for three months, and three cows and
their sucking calves, four hogs with their sucking pigs, and food for such
cows and hogs for one month; one piano, one shotgun, and one rifle. 3.
The farming utensils or implements of husbandry not exceeding in value
the sum of $1,000; also two oxen or two horses, or two mules, and their
harness; one cart or wagon, and food for such oxen, horses, or mules for one
month; also all seed, grain, or vegetables, actually provided, reserved or
on hand for the purpose of planting or sowing at any time within the
ensuing six months, not exceeding in value the sum of $200, and seventyfive bee hives, and one horse and vehicle belonging to any person who is
maimed or crippled, and the same is necessary in his business. 4. The
tools or implements of a mechanic or artisan necessary to carry on his
trade; the notarial seal, records, and office furniture of a notary public;
the instruments and chest of a surgeon, physician, surveyor, or dentist,
necessary to the exercise of their profession, with their professional
libraries and necessary office furniture; the professional libraries of attor
neys, judges, ministers of the gospel, editors, school-teachers and musicteachers and their necessary office furniture; also the musical instru
ments of music-teachers actually used by them in giving instructions;
and all the indexes, abstracts, books, papers, maps, and office furniture
of a searcher of records necessary to be used in his profession; also the
typewriters or other mechanical contrivances employed for writing in
type actually used by the owner thereof for making his living; also one
bicycle when the same is used by its owner for the purpose of carrying
on his regular business, or when the same is used for the purpose of
transporting the owner to and from his place of business. 5. The
cabin or dwelling of a miner not exceeding in value the sum of $500 ; also
his sluices, pipes, hose, windlass, derrick, cars, pumps, tools, imple
ments, and appliances necessary for carrying on any mining operations,
not exceeding in value the aggregate sum of $500; and two horses,
mules, or oxen, with their harness, and food for same for one month,
when necessary to be used in any whim, windlass, derrick, car, pump, or
hoisting gear, and also his mining claim, actually worked by him, not
exceeding in value the sum of $1,000. 6. Two horses, two oxen, or two
mules, and their harness, and one cart or wagon, one dray or truck, one
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1183
coupe, one hack or carriage for one or two horses, by the use of which a
cartman, truckman, huckster, peddler, hackman, teamster, or other laborer
habitually earns his living, and one horse with vehicle and harness, or other
equipments used by a physician, surgeon, constable, or minister of the
gospel in the legitimate practice of ms profession or business, with food
for such oxen, horses, or mules for one month. 7. One fishing boat and
net, not exceeding the total value $500, the property of any fisherman by
the lawful use of which he earns a livelihood. 8. Poultry, not exceeding
in value $25. Seamen’s and seagoing fishermen’s wages and earnings not
exceeding $100. 9. The earnings of the judgment debtor for his personal
services rendered at any time within thirty days next preceding the levy of
execution or attachment, where it appears by the debtor’s.affidavit or
otherwise, that such earnings are necessary for the use of his family
residing in this State, supported in whole or in part by his labor; but
where debts are incurred by any such person, or his wife or family for
the common necessaries of life, or have been incurred at a time when
the debtor had no family residing in this State, supported in whole
or in part by his labor, the one-half of such earnings above men
tioned are nevertheless subject to execution, garnishment, or attachment
to satisfy debts so incurred. 10. The shares held by a member of a
homestead association duly incorporated, not exceeding in value $1,000,
if the person holding the shares is not the owner of a homestead under
the laws of this State. All the nautical instruments and wearing apparel
of any master, officer, or seaman of any steamer or other vessel. 11 All
moneys, benefits, privileges, or immunities accruing, or in any manner
growing out of any life insurance on the life of the debtor, if the annual
premiums paid do not exceed $500. 12. All fire engines, hook and lad
ders, with carts, trucks, carriages, hose, buckets, implements, and
apparatus thereunto appertaining; and all furniture and uniforms of any.
fire company or department organized under any law of this State. 13. All
arms, uniforms, and accoutrements required by law to be kept by any
person, and also one gun to be selected by the debtor. 14. All court
houses, jails, and town, county, and State buildings; all public buildings,
grounds, places, etc.; all material purchased for use in the construction,
alteration, etc., of any building, mining claim, etc.; all machinery, tools,
and implements necessary in and for boring, sinking, putting down, and
constructing surface or artesian wells; also the engines necessary for
operating such machinery, implements, tools, etc.; also all trucks neces
sary for the transportation of such machinery, tools, implements, engines,
etc., to the value of $1,000. No article, however, or species of property
mentioned in.this section, is exempt from execution issued upon a judg
ment recovered for its price or upon a judgment of foreclosure of a
mortgage thereon. (For Homestead Exemptions, see Homestead.)
F o re ig n C o rporations. Corporations organized under the laws of
another State, Territory, or of a foreign country, which are now doing
business in this State, or which shall hereafter enter this State to do busi
ness, or maintain an office in this State, shall file in the office of the secre
tary of state of the State of California a certified copy of their articles of
incorporation, or of their charters, or of the statutes, or legislative, or ex
ecutive, or governmental act creating them in cases where they are created
by charters, or statutes, or legislative, or executive, or governmental acts,
and a certified copy thereof, duly certified by the secretary of state of
this State, in the office of the county clerk of the county where its princi
pal place of business is located, and also where such corporation owns
property. For filing and issuing certified copy as required in Section 1 of
this act, corporations formed under the laws of another State, or of a
territory, or of a foreign country, shall pay the same fees as are paid by
corporations formed under the laws of this State. Every foreign corpora
tion amenable to the provisions of this act which shall neglect or fail
within ninety days from the date of passage of this act, to comply with the
conditions of the same as herein provided, shall be subject to a fine of not
less than $500, to be recovered before any court of competent jurisdiction;
and it is hereby made'the duty of the secretary of state, as he may be advised
that corporations are doing business in contravention of this act, to
report the fact to the governor, who shall instruct the district attorney of
the county wherein such corporation has its principal business, or the
attorney-general of the State, or both, as soon as practicable, to institute
proceedings to recover the fine herein provided for, and the amount so
recovered must be paid into the State treasury to the credit of the general
fund of the State; in addition to which penalty, no foreign corporation
as above defined which shall fail to comply with this act, can maintain
any suit or action, either legal or equitable, in any of the courts of this
State upon anv demand, whether aris ng out of contract or tort, until it
has complied with this act; provided, that any corporation described in
Section 1 of this act, which is now doing business in this State, and
which has complied with the act in relation to foreign corporations,
approved April 1st, 1872, and an act amendatory thereof, approved March
17th, 1899, is exempted from the provisions of this act. This act shall take
effect and be in force from and after the date of its passage. ..(February
28 1901.) Every corporation other than those created by or under the
laws of this state must, within forty days from the time it commences to
do business therein, file in the office of the secretary of state a designation
of some person residing within the State upon whom process issued by
authority of or under any law of this State m ay be served. A copy of such
designation, duly certified by the secretary of state, is sufficient evidence
of such appointment, and of the due incorporation of such corporation.
Such process may be served on the person so designated, or, in the event
that no such person is designai ed, then on the secretary of state, and the
service is a valid service on such corporation The $10 annual license tax
described under tbe title “ Corporations” applies to foreign corporations
as well. (See Corporations.)
F r a u d .' (For Fraudulent Debtors, see Arrest.) Any contract ob
tained through fraud is voidable. Consent is deemed to have been ob
tained through fraud only when it would not have been given, had such
cause not existed. Actual fraud consists in the suggestion as a fact of
that which is not true, the positive assertion of that which is not true in
a manner not warranted by the information of the person making it
though he believes it to be true, the suppression of that which is true
by one having knowledge of it, and promises made without any intention
of performing, or anv other act fitted to deceive. Constructive fraud
consists of any breach of duty, which without an actual fraudulent intent,
gains an advantage of the person in fault by misleading another to his
prejudice. Actual fraud is always a question of fact.
G a rn is h m e n t. Upon receiving instruction in writing from the
plaintiff or his attorney that any person has in his possession, or under
his control, any credits or other personal property belonging to the de
fendant or is owing any debt to the defendant the sheriff must serve
upon such person a copy of the writ and a notice that such credits, or
other property or debts, as the case may be, are attached in pursuance of
such writ. All persons having any such property at the time of serving of
such writ, unless it is delivered up or transferred or paid to the sheriff,
shall be liable to the amount of such credits, property, or debts, until the
attachment be discharged, or any judgment by him recovered be satisfied.
The garnishee may be cited to appear before the court or judge and be
examined on oath respecting such property.
1184
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
H o lid a y s are every Sunday, the 1st day of January, the 22d day of
February, the 30th day of May. the 4th day of July, the 1st Monday of Sep
tember, the 9th day of September, the 25th day of December, every day on
which an election is held throughout the State, and every day appointed
by the President of the United States or by the governor for a public fast,
thanksgiving, or holiday. If the 1st day of January, the 22d day of Feb
ruary, the 30th day of May, the 4th day of July, the 9th day of Septem
ber, or the 25th day of December, fall upon a Sunday, the Monday
following is a holiday.
H o m e s te a d . The homestead consists in the interest of the claimant,
divided or undivided, in the dwelling house in which the claimant
resides, and, in the land on which the same is situated, selected, if the
claimant be married, from community property, or the separate property
of the husband, or, with the consent of the wife from her separate prop
erty. When the claimant is not married, but is the head of a family,
the homestead may be selected from any of his or her separate property.
The homestead can not be selected from the separate property of the
wife without her consent, shown by her making or joining the declara
tion of homestead. The homestead is exempt from execution or forced
sale, except in satisfaction of judgments obtained: 1. Before the declara
tion of homestead was filed for record, and which constitutes liens
upon the premises. 2. On debts secured by mechanics’, contractors’,
sub-contractors’, artisans’, architects’, builders’, laborers’ of every class,
materialmen’s or vendors’ liens upon the premises. 3. On debts secured
by mortgages on the premises, executed and acknowledged by the hus
band and wife or by an unmarried claimant. 4. On debts secured by
mortgages on the premises, executed and recorded before the declaration
of homestead was filed for record. In cases not enumerated above, iu
which, after a judgment has been docketed against the homestead claim
ant, and an execution for its enforcement levied on the homestead, it may
be shown by an appraisement applied for to, and ordered by, the court,
after proper proceedings, that the homestead exceeds in value the amount
of homestead exemption. Then steps may be taken, if it can be done
without material injury to the land, to divide the property and reach the
excess. The homestead of a married person can not be conveyed or
encumbered unless the instrument by which it is conveyed or encum
bered is executed and acknowledged by both husband and wife. Home
steads may be selected and claimed: 1. If not exceeding $5,000 in value,
by any head of a family. 2. If not exceeding $1,000 in value, by another
person.
H u s b a n d a n d W ife . The husband is the head of the family. He
may choose any reasonable place or mode of living, and the wife must
conform thereto. In other respects their interests are separate. Neither
husband nor wife has any interest in the property of the other, and
either may enter into any engagement with the other, or with any other
person, respecting property, which either might if unmarried. All
property of either, owned by him or her before marriage, and that
acquired afterward by gift, bequest, devise or descent, is the separate
property of such person. All other property acquired after marriage by
either husband or wife or both, is community property; but whenever
any property is conveyed to a married woman by an instrument in writing,
the presumption is that the title is thereby vested in her as her separate
property. The husband has the management and control of the commu
nity property, with absolute power of disposal other than testamentary, pro
vided that he cannot make a gift of the same or convey the same without
valuable consideration, unless the wife consents in writing. The commu
nity property is not liable for the contracts of the wife made after marriage,
unless secured by a pledge or mortgage thereof executed by the husband.
The separate property or the husband is not liable for the debts of the
wife contracted before marriage, and the separate property of the wife
is not liable for the debts of her husband, but is liable for her own debts
contracted before or aft er marriage. A husband and wife may hold prop
erty as joint tenants, tenants by entireties, tenants in common, or as com. munity property.
In te re st. Unless there is an express contract in writing fixing a
different rate, interest is payable on all moneys at the rate of 7 per cent
per annum after they become due on all instruments in writing, and on
moneys due or lent on any settlement of accounts from the day on which
the balance is ascertained. The parties may agree on any rate of interest,
and muy agree that if the interest on such debt is not punctually paid, it
shall become part of the principal, and thereafter bear the same rate of
interest as the principal debt, but interest on certain chattel mortgages is
limited to 1% per c-nt per month. A judgment bears 7 per cent per
annum after rendition. In the computation of interest for less than a
year, 360 days are deemed to constitute a year.
Ju d gm en ts (see Actions). The party in whose favor judgment is
given may, at anytime within five years after the entry thereof, have a
writ of execution issued for its enforcement. If after the entry of judg
ment the issuing of execution thereon is stayed or enjoined by a judgment,
Or order of court, or by operation of law, the time during which it is so
stayed or enjoined must be excluded from the computation of the five
years within which execution may issue. All goods, chattels, moneys, and
other property, or any interest therein, of the judgment debtor, not exempt
by law, and all property, and rights of property seized and held under
attachment ih the action are liable to execution. Shares and interests in
any corporation or company, and debts and credits, and all other property,
both real and personal, or any interest in either real or personal property,
. and all other property not capable of manual delivery, may be levied upon
or released from levy in like manner as like property may be attached or
released from attachment. Until a levy, property is not affected by the
execution. A judgment may be revived, but it is barred by the act of
limitation within five years, unless revived by leave of court upon motion.
It may also be revived by an action upon the judgment.
* L iens. Mechanics, material-men, contractors, sub-contractors,artisans,
architects, and laborers of every class performing labor upon or furnishing
material to be used in the construction, alteration, or repair of any mining
Claim, building, wharf, bridge, ditch, flume, aqueduct, tunnel, fence,
machinery, railroad, wagon road, or other structure, have liens upon the
property upon which they have worked or furnished material, and any
person performing labor in a mining claim has a lien upon the same, and
the works owned and used by the owners for reducing the ores from such
mining claim, for the work or labor done. In case of a contract for the
work between the related owner and his contractor, the lien extends to
the entire contract price, and such contract operates as a lien in favor of
all persons, except the contractor, to the extent of the whole contract
price; and after all such liens are satisfied, then as a lien for any balance
of the contract price in favor of the contractor. All such contracts must
be in writing when the amount agreed to be paid thereunder exceeds
$1,000. and must be subscribed by the parties thereto, and the said con
tract, or a memorandum thereof, setting forth the names of all the parties
to the contract, a description of the property to be affected thereby,
together with a statement of the general character of the work to be done,
the total amount to be paid thereunder, and the amounts of all partial pay
ments, together with the time when such payments shall be due and
payable, must, before the work is commenced, be filed in the office of the
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
county recorder of the county in which the property is situated, who shall
receive $1.00 for such filing; otherwise they are wholly void, and no
recovery may be had thereon by either party thereto; and in such case
the labor done and materials furnished before the filing of such contract
must be deemed to have been done and furnished at the personal instance
of the owner, and they have a lien for the value thereof. No part of the
contract price, where the same exceeds $1,000, must, by the terms of any
such contract, be made payable, nor must the same, or any part thereof, be
paid in advance of the commencement of the work, but the contract price
must, by the terms of the contract, be made payable in installments at
specified times after the commencement of the work, or on the completion
of specified portions of the work, or on the completion of the whole workprovided that at least 25 per cent of the whole contract price must
be made payable at least thirty-five days after the final completion of
the contract. No payment made prior to the time when the same
is due, under terms and conditions of the contract, is valid for
the purpose of defeating, diminishing or discharging any lien in favor
of any person, except the contractor; but as to such liens, such payment
must be deemed as if not made, and shall be applicable to such liens, not
withstanding that the contractor to whom it was paid may thereafter
abandon his contract, or be, or become indebted to the reputed owner in
any amount for damages or otherwise for non-performance of his contract
or otherwise. As to all liens except that of the contractor, the whole con
tract price shall he payable in money, and must not be diminished by any
prior or subsequent indebtedness, off-set, or counter-claim in favor of the
reputed owner and against the contractor; no alteration of any such con
tract shall affect any lien acquired as above set forth. In case such con
tracts and alterations thereof do not conform substantially to the pro
visions above set forth, the labor done and materials furnished hy all
persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who. contracted
with the contractor, and they shall have a lien for the value thereof. Any
of the parties above mentioned may give written notice to the reputed
owner that they have performed work or furnished materials or both, to
the contractor, stating in general terms the kind of labor and materials
and the name of the person to, or for whom the same was done or fur
nished, or both, and the amount in value. And upon the giving of such
notice, it is the duty of the person who contracted with the contractor
to withhold from the contractor sufficient money due or that may become
due to such contract r to answer such claim, and any lien that may be
filed for record, including counsel fees not exceeding $100 in each case,
and reasonable costs. A person who makes, alters or repairs any article
of personal property, at the request of the owner or legal possessor thereof,
or while lawfully in possession thereof, renders any service to the owner
thereof, by labor or skill necessarily employed for the protection, safe
keeping or carriage thereof, has a lien upon the same, dependent upon
possession for his reasonable charges for work done and materials
furnished and may retain possession thereof until the charges are paid. If
not paid* within two months after the work ie done or services rendered,
the person may proceed to sell the property, or so much thereof as is
necessary to satisfy his demand, at public auction, ten days notice having
been advertised in a newspaper of the county where the work was done,
or if there be no such newspaper, by posting in three of the most public
places in the county where the work was done for ten days previous to the
sale. The proceeds must be applied to the discharge of the lien and the
cost of keeping or selling the property; the.remainder, if any, must be paid
over to the owner thereof.
Every person performing work or labor in, with, about, or upon any
threshing machine or engine, horse-power, wagon, or other appliance there
of, while engaged in threshing has a lien thereon to the extent of ihe value
of his_services, for ten days after ceasing work or labor; provided, withinthat time, an action is brought to recover the amount of-the claim.
L im ita tio n s . If real estate is held adversely for five years, such
adverse possession ripens into title, except against infants and persons
under disability. The periods prescribed for the commencement of
actions other than for the recovery of real property, are as follows: Within
five years: (1) An action upon a judgment or decree of any court of the
United States, or of any State within the United States. (2) An action lor
mesne profits of real property. Within four years: An action upon
any contract, obligation or liability founded upon an instrument in
writing, executed in this State. Within three years: (1) An action
upon a liability created by statute, other than a penalty or for
feiture. _ (2) An action for trespass upon real property. (3) An action
for taking, detaining or injuring any goods or chattels, including
actions^ for the specific recovery of personal property. (4) An action
for relief on the ground of fraud or mistake; the cause of action in
such case not to be deemed to have accrued until the discovery hy
the aggrieved party of the facts constituting fraud or mistake. Within
two years: (1) An action upon a contract, obligation or liability not
founded upon an instrument of writing, or founded upon an instrument
of writing executed out of the State. (2) An action against a sheriff,
coroner, or constable, upon a liability incurred by the doing of an act in
his official capacity, and in virtue of his office, or by the omission of an
official_ duty, including the non-payment of money collected upon an
execution; but this subdivision does not apply to an action for an escape.
Within one year: (1) An action upon a statute for a penalty or forfeiture,
when the action is given to an individual or to an individual and the
State, except when the statute imposing it prescribes a different
limitation. (2) An action upon a statute, or upon an undertaking in
a criminal action, for a forfeiture or penalty to the people of this State.
(3) An_ action for libel, slander, assault, battery, false imprisonment, or
seduction, or for it jury to or for the death of one caused by the wrongful
act or neglect of another, or by a depositor against a bank for the payment
of a forged or raised check. (4) An action against a sheriff, or other
officer, for the escape of a prisoner arrested or imprisoned on civil
process. (5) An action against a municipal corporation for damages or
injuries to property caused by a mob or riot. Within six months: (1)
An action to recover property seized by tax collector. (2) To recover
corporation stock sola for delinquent assessment. To actions brought
to recover money or other property deposited with any bank, banker,
trust company, or savings and loan society, there is no limitation. If
when the cause of action accrues against a person, he is out of the
State, the action may be commenced within the term herein limited, after
his return to the State; and if, after the cause of action accrues, he departs
from the Stat(e, the time of his absence is not part of the time limited for
the commencement of the action. And if the person entitled to bring the
action, be at the time the action accrued, either a minor, insane, impris
oned for a term less than life, or a married woman, and her husband is a
necessary party with her in commencing such action, the time of such
disability is not a part of the time limited for the commencement of the
action. No acknowledgment or promise is sufficient to take a case out of
the operation of the statute of limitations, unless the same is in writing,
signed by the party to be charged. Part payment will not take the case
out of the statute of limitations. Where a cause of action has arisen in
another State, and would be barred by the statute of limitations of that
State, an action cannot be maintained here.
B A N K IN G A N D C O M M E R C IA L L A W S — C A L IF O R N IA .
M a rrie d W o m en . A married woman may sue or be sued, and may
prosecute or defend any action or proceeding as if unmarried. A married
woman may become a sole trader by the judgment of the superior court of
the county in which she has resided for six months next preceding the
application. The husband of the sole trader is not liable for any debts contracted by her in the course of her sole trader’s business unless contracted
upon his written consent. A married woman may convey without consent
of her husband, and is not liable for the debts of her husband, but is liable
for her own debts contracted before or after her marriage. She may con
tract as &femme note so as to bind her separate property. The wife may
make a will ol her separate property. The earnings of the wife are not liable
forthe debtsof her husband. If the husband fail to make provision for the
support of the wife, a person furnishing her with necessary articles for
her support may recover the value from the husband. Married women
may hold qpd transfer stock in corporations without the consent of her
husband. A married woman may make, execute, and revoke powers of
attorney for the saie, conveyance, or incumbrance of her real or personal
estate, which shall have the same effect as if she were unmarried, and
may be acknowledged in the same manner as a grant of real property.
A grant or conveyance of real property made by a married woman may
be'made, executed, and acknowledged in the same manner and to the
same effect as if she were unmarried.
M echanics’ L iens. (See Liens.)
M ortgages. Any interest in real property which is capable of being
transferred may be mortgaged. A mortgage can be created, renewed, or
extended only by writing executed with the formalities required in the
case of a grant of real property. Every transfer of an interest in real
property, other than in trust, made only as the security for the perform
ance of any act, is to be deemed a mortgage, and the fact that the trans
fer was made subject to defeasance on a condition may, for the purpose
of showing such transfer to be a mortgage, be proved (except as against
the subsequent purchaser or encumbrancer for value and without notice)
although the fact does not appear by the terms of the instrument. A
mortgage is a lien upon everything that passes by a grant of the prop
erty. A mortgage does not entitle the mortgagee to the possession of
the property. A mortgage does not bind the mortgagor personally to per
form the act for the performance of which it is a security, unless there
is an express covenant therein to that effect. The assignment of a debt
secured by a mortgage carries with it the security. When a mortgage
is satisfied or the mortgage indebtedness paid, the mortgagee must satisfy
the mortgage of record under penalty. A mortgagee may foreclose the
right of redemption of the mortgagor.
Notes a n d B ills o f E x c h a n g e . (See Mils and Notes.)
P a rtn e rs h ip s . (See Special or Limited Partnerships.) Partnerships
may be formed for the transaction of any lawful business bv two or more
persons, and_ the partnership property, also the property of members of
the firm, is liable for all debts contracted by the firm in their business.
Except commercial or banking partnerships established and transacting
business in a place without the United States, every partnership transact
ing business in this State under a fictitious name, or a designation not
showing the names of the persons interested as partners in such business,
must file with the clerk of the county in which its principal place of busi
ness is situated a certificate stating the names in full of all the members
of such partnership, and their places of residence, and publish the same
once a week for four successive weeks, in a newspaper published in the
county if there be one, and if not, then in a newspaper published in an
adjoining county. The certificate must be signed by the partners and
acknowledged before some officer authorized to take the acknowledgment
of conveyances of real property. Where the partnership is hereafter
formed, the certificate must be filed, and the publication made within one
month after the formation of the partnership, or within one .month from
the time designated in the agreement of its members for the commence
ment of the partnership. Where the partnership has been heretofore
formed, the certificate must be filed, and the publication made, within six
months after the passage1of this amendment (March 16, 1901). Persons
doing business as partners contrary to these provisions of this article shall
not maintain any action upon or on account of any contracts made or
transactions had in their partnership name, in any court of this State, until
they, have first filed the certificate and made the publication herein
required, nor can any such action be maintained by any assignee or suc
cessor in interest or such partnership, unless its transfer or assignment
was by operation of law, and not the act of the partnership. A partner
authorized to act in liquidation may collect, compromise, or release any
debt due to the partnership, pay or compromise any claim against it, and
dispose of the partnership property; but he may not, without authority in
writing for that purpose, dispose of real property of the partnership except
for the payment of partnersnip obligations.
P led g e. (See Collaterals.)
Pow ers o f A tto rn e y . An attorney in fact may be appointed for
any purpose for which an agency can lawfully be created. Powers of
attorney can only be conferred by an instrument in writing subscribed by
the principal which must particularly specify the powers conferred. If
the instrument contains a power to convey or execute instruments affect
ing real property, it must be duly acknowledged and must be recorded in
the county within which the real property to be conveyed or affected is
situate. No such instrument which has been so recorded is revoked by
any act of the party by whom it was executed, unless the instrument con
taining such revocation is also acknowledged or proved, certified, and re
corded in the same office in which the instrument containing the power
was.recorded. When an attorney in fact executes an instrument trans
ferring an estate in real property, he must subscribe the name of his
principal to it, and his own name as attorney in fact. The certificate of
acknowledgment by an attorney in fact must be substantially in the fol
lowing form:
State o f ........................ (
County o f
j 8Sl
. On this ..........day o f ............. . in the y e a r__ ___, before me (here
insert the name and quality of the officer), personally appeared........... ,
known to me (or proved to me on the oath of ..., ...,) to be the person
whose name is subscribed to the within instrument as the attorney in fact
of ......... , and acknowledged that he subscribed the name of . .*..........
thereto as principal, and his own name as attornev in fact.
P ro b a te L aw . (See Administration of Estates, Claims against Es
tates!of deceased persons, Descent and Distribution.) The superior court
has jurisdiction of proceedings in probate, and such proceedings must be
instituted (l) In the county of which the decedent was a resident; (2) in
the county in which he may have died leaving estate therein, he not be
ing a re-ident of the State; 13) in the county in which any part of the
estate may be, if the decedent died out of the State and was not a resi
dent. Letters testamentary or of administration, may be revoked for
misconduct or disobedience of the order of the court. Special adminis
trators may be appointed pending the appointment of a regular adminis
trator or executor when there is a delay of granting letters or a vacancy.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1185
An inventory and appraisement is required of the executor or adminis
trator within three months. Upon the return of the inventory the court
may set apart for use of the surviving husband or wife, or of the minor
children, all the property exempt from execution including any home
stead selected, providing the same was selected from the common prop
erty or from the separate property of the person selecting qr joining in
the selection of the same. If none has been selected, 1he court must se
lect, designate and set apart and cause to be recorded a homestead for
the use of the surviving husband or wife, or of the minor children, or if
there be no surviving husband or wife, then for the use of the minor chil
dren out of the common property., or if there be no common ptoperty,
then out of the.real estate belonging to the decedent. Property so set
apart is not subject to further administration. If upon the return of the
inventory it appears that the value of the whole estate does not exceed
$1,500, the court may set apart the whole of the estate for the use and
support of the family of the deceased. The provisions of law relating to
new trials and appeals, also apply to probate proceedings.
P ro te st. (See Bills and Notes.)
R e d e m p tio n .. Sale of personal property, and of real property when
the estate therein is less than a leasehold of two years unexpired term, are
absolute. In all other cases the property is subject to redemption, as pro
vided below. The officer must give to the purchaser a certificate of sale,
and file a duplicate thereof for record in the office of the county recorder
of the county, which certificate must state the date of the judgment under
which the sale was made and the names of the parties thereto, and con
tain: 1. A particular description of the real property sold. 2. The price
bid for each distinct lot or parcel. 3. The whole price paid. 4. If the
property is subject to redemption the certificate must so declare, andif the
redemption can be effected only in a particular kind of money or currency,
that fact must be stated. The defendant may redeem within one year by
payment of the amount of the judgment and interest at 1 per cent per
month. Any other redemptioner may redeem within sixty days after the
last redemption, and so on, by paying the amount of the previous redemp
tion with 2 per cent addition thereon, together with any assessment or
taxes which the last redemptioner may have paid, with interest on the
same.
R e p le v in . There is no action of replevin in this State, but the action
of claim and delivery substantially takes its place. The plaintiff in an
action to recover the possession of personal property, may at the time
of issuing the summons, or at any time before answer, claim the delivery
of such property. An affidavit must be made by the plaintiff or by
some one in his behalf showing that the plaintiff is the owner of the
property, or entitled to its possession, that the property is wrongfully
detained by the defendant, the alleged cause of detention thereof, and
that it has not been taken for a tax, assessment or fine, or seized under
an execution or attachment, or if so seized that it is exempt; also the
actual value of the property. Plaintiff m ust also give a bond in double
the value of the property. The defendant may give to the sheriff a
written undertaking in double the value of the property, and retain the
same, but in case he fails so to do the property is delivered to the plaintiff.
The judgment in such action is in the alternative for a return of the prop
erty or for its value in case a delivery can not be had.
R escission. A party to a contract may rescind the same in the fol
lowing cases only. (1) If his consent was obtained by a mistake, duress,
menace, fraud or undue influence. (2) If through the fault of the party
as to whom he rescinds, the consideration fails. (3) If such considera
tion becomes entirely void from any cause. (4) If such consideration,
before it is rendered to him, fails in a material respect. (5) By consent
of all the parties. The party rescinding must do so promptly upon discoverirg the facts which entitle him to rescind, and must restore to the
other party everything of value which he has received from him under
the contract; or must offer to restore the same upon condition that such
party shall do likewise. The rescission of a contract may also be adjudged
on application of a party aggrieved: 1. Where the contract is unlawful
for causes not appearing upon its face, and the parties were not equally in
fault. 2. When the public interest will be prejudiced by permitting it to
stand.
S p e c ia l o r L im ite d P a rtn e rs h ip s . May be formed by two or
more persons for the transaction of any business, except banking or
insurance. It may consist of one or more persons called general part
ners, and o'ne or more called special partners. Persons desiring to
form a special partnership must severalty sign a certificate stating:
1. The name under which the partnership is to be conducted. 2. The
general nature of the business intended to be transacted. 8. The names
of all the partners, and their residences, specifying which are general and
which are special partners. 4. The amount of capital which each special
partner has contributed to the common stock. 5. The periods at which
such partnership will begin and end. The certificate must be acknowl
edged as in case of deed; must be filed in clerk’s office and recorded
in county recorder’s office. An affidavit must be filed in same office with
original certificate, stating the sum contributed. The certificate must be
published in a newspaper once a week for four weeks. The general part
ners are liable as such. The contribution of the special partner is lia
ble, but not otherwise, unless he has willfully committed some act in vio
lence of the provisions named or interfered with the business of the firm,
in which cases and some others, he may be held aj a general partner.
S ta tu te o f F ra u d s. A will must be in writing, except a nuncupa
tive will. (See Wills.) No estate in land will pass other than leases not
to exceed one year, unless in writing. An agreement not to be performed
within a year from making it must be in writing; also a special promise to
answer for the debt, defraud, or miscarriage of another; also agreements
made in consideration of marriage, other than a mutual promise to marry.
An agreement for the sale of goods and chattels or things in action at a
price not less than $200, unless the buyer accept and receive part of the
same, or any part of the purchase money. An agreement authorizing or
employing an agent or broker to purchase or sell real estate for compensa
tion or for a commission. No evidence is admissible to charge a person
upon representations as to the credit of another, unless the representa
tions be in writing.
Sum m ons. (See Actions.)
S u p p le m e n ta ry P ro ceed in g s. When an execution is returned
unsatisfied, the judgment creditor can obtain an order requiring the
judgment debtor to appear and answer concerning his property before
the judge or referee appointed by him; also, in. case after the issuing of
an execution, upon proof by affidavit that the judgment debtor has prop
erty which he unjustly refuses to apply toward the satisfaction oi the
judgment, the judge may m»ke the order, and instead thereof, if it appear
that the debtor is about to abscond, he may, by order of the judge, be
arrested and required by him to give security for the judgment, or that
he will attend from time to time during the pendency of the proceedings,
and that he will not in the meantime dispose of any portion of his prop
erty, and in default of security he may be committed to prison.
1186
B A N K IN G A N D C O M M E R C IA L L A W S — C O L O R A D O .
before any notary public of such State or Territory, under his notarial
S u re ty C o m p an ies. In all cases where an undertaking or bond,
seal; before any commissioner of deeds for any such foreign State or
with any number of sureties, is authorized or required by any provision
Territory appointed under the laws of this State, under his hand and
of this code, or of any law of this State, any corporation with a paid Up
official seal; before any other officer authorized by the laws of any. such
capital of not less than $100,000, incorporated under the laws r f this or
State or Territory to take and certify such acknowledgment; provided,
any other State of the United States, tor the purpose of making, guaran
there »5all be affixed to the certificate of such officer, other than those
teeing, or becoming a surety upon bonds or undertakings required^ or
above enumerated, a certificate by the clerk of some court of record of
authorized by law, or which, by the laws of the State where it was origi
the county, city, or district wherein such officer resides, under the seal of
nally incorporated has such power, and which shall have complied with all
such court, that the person certifying such acknowledgment is the officer
the requirements of the law of this State regulating the formation or admis
he assumes to be; that he has the authority, by the Taws of such State
sion of these corporations to transact business in this State, may become
or Territory, to. take and certify such acknowledgment, and that the
and shall be accepted as security, or as sole and sufficient surety upon
signature
is the true signature of such officer. When executed out of
such undertaking or bond, and such corporate surety shall be subject to
the United States, before any court of record of any foreign Republic,
all the liabilities and entitled to all the rights of natural persons’ sureties;
Kingdom,
Empire, State, Principality, or Province having a seal, the
provided, that the insurance commissioner shall have the same jurisdic
acknowledgment being certified by the judge or justice of guch court
tion and powers to examine the affairs of such corporations as he has in
to
have
been
made before such court, and attested by the seal of such
other cases; shall require them to file similar statements, and issue to them
court; before the mayor or other chief officer of any city or town, hav
a similar certificate.
ing a seal, certified under such seal; before any consul or consuls of the
T ax e s. On the last Monday of November of each year taxes become
United States within such foreign country, under the seal of his consul
delinquent, except the last installment of the real property taxes, and
late. Witnesses and seals are unnecessary. When the homestead in
thereafter 15 per cent is added for delinquency; provided,,that if they be
either husband or wife’s name is to be mortgaged, both must join in the
not paid before the last Monday in April next succeeding, 5 per cent is
conveyance, and wife must acknowledge separate and apart from her
added for delinquency. On the last Monday of April of each year all
husband.
tbe unpaid portion of the remaining one-half of the taxes on all real prop
A c tio n s. The distinction between actions at law and suits in equity
erty is delinquent, and thereafter 5 per cent is added for delinquency.
is abolished. All actions must be prosecuted by the party in interest.
On the last Monday in April, of each year, all the unpaid portion of the
Suit
is begun by filing a complaint or issuing summons. Summons may
remaining one-half of the taxes on all real property is delinquent," and
thereafter 5 per cent is added for delinquency; and provided further, - be issued by the clerk of the court, or by plaintiff’s attorney. Where
defendant
is a non-resident, service of summons may be made by publi
that the entire tax on any real property may be paid at the time the first
cation where the proceeding is one inrem . If action is commenced by
installment as above provided is due and payable; and provided further,
service
of
summons,
complaint must be filed within ten days after issu
that the taxes on all personal property, unsecured by real property, shall
ance of summons; if commenced by filing complaint,, plaintiff may have
be due and payable immediately after the assessment of said personal
summons issued at any time within one month thereafter.
property is made.
A d m in istratio n of E s ta te s . All demands not exhibited in one
T ra n s fe r o f C o rp o ra tio n S to ck . Whenever capital stock of a
year are barred, unless such creditor can find other estate of the deceased
corporation is divided into shares, and certificates therefor are issued, such
not inventoried, saving, however, to femmes covert, persons of unsound
shares of stock are personal property, and may be transferred by indorse
minds, imprisoned or beyond the seas, the term of one year after their
ment by the signature of the proprietor, or his attorney,or legal representa
disability has been removed to exhibit their claims. Creditors having
tive, and delivery of the certificate, but such transfer is not valid, except
liens on the property of the decedent can not foreclose for one year unless
between the parties, until the same is so entered upon the books of the
permitted by the court and in no event until the claim has been allowed.
corporation as to show the names of the parties by and to whom trans
A g e n t. Any person doiiig business as manager, trustee, agent, or in
ferred, the number or designation of the shares, and the date of the
any other representative name, or under the words “ and company,’’ or
transfer. Shares of stock may be held, owned, or transferred by a married
otherwise than under the personal names of all the constituent members
woman as a femme sole. When the stock is owned by a non-resident, the
associated, is required to file with the Clerk and recorder of thecounty,
officers of the corporation may require of the person presenting the same
in which such business is carried on, an affidavit setting forth the full
for transfer satismctory evidence that the owner was alive at the date of
Christian and surnames and addresses of all the parties represented; and
the purported transfer, or- in lieu thereof an indemnity bond, and may
further affidavit is required upon any change or changes by withdrawal,
decline to record the transfer until such requirement is complied with.
addition, or otherwise. Persons in default are guilty of a misdemeanor
T ru s t D eeds may be used instead of mortgages, but are not often
and are barred from prosecuting any suit for the collection of their debts.
used except with some savings and loan banks or societies.
This does not apply to corporations whose articles are duly recorded.
W ills. Every person over the age of eighteen years, of sound mind,
A lien s. No restrictions as to aliens.
may, hy last will, dispose of all his estate, real and personal. A married
A rb itratio n . Differences may be submitted to arbitration by con
woman may dispose of all her separate estate by will without the con
sent of the parties in the form prescribed by statute, and a judgment
sent of her husband, and may alter or revoke the will in like manner
may be entered by the clerk of the district court upon the finding of the
as if she were single. Her will must be executed and proved in like
manner as other wills. Every will other than a nuncupative will must
arbitrators.
be in writing, and every will other than an holographic will and a nun
A rre s t. Imprisonment for debt, except in cases where one refuses to
cupative will, must be executed and attested as follows: 1. It must be
deliver up his estate for the benefit of his creditors, or in cases of tort or
subscribed at the end thereof by the testator himself, or some person
where there is a strong presumption of fraud, is abolished. In civil
in his presence, and by his direction must subscribe his name thereto.
actions founded upon tort, where the finding is in favor of the plaintiff
■2. The subscription must be made in the presence of the attesting
and the verdict states that defendant was guilty of fraud, malice, or wilful
witnesses, or acknowledged by the testator to them to have been made
deceit, execution may issue against the body of the defendant, but not
by him or by his authority. 3. The testator must, at the time, of sub
where the defendant shall have been convicted in a criminal proceeding
scribing or acknowledging the same, declare to the attesting witnesses
for the same wrong. Imprisonment shall not exceed one year, and the
that the instrument is his will; and. 4. There must be two attesting
prisoner is released upon payment of the debt. The writ of ne exeat is
witnesses, each of whom must sign his name as a witness at the end of
granted under proper circumstances. (See Fraudulent Purchasers.)
the will, at the testator’s request, and in his presence and in the presence
A ssig n m en ts. An assignment to be valid must be for the benefit of
of each other. An holographic will is one that is entirely written, dated,
all creditors without preference. The deed must be recorded where
and signed by the hand of the testator himself. It is subject to no other
assignor
resides, or if a non-resident where his principal business is
form, and may be made in or out of this State, and need not be witnessed.
earned on. The consent of creditors is presumed. Assignor must within
A witness to a will should always write his name and residence. All
four
days
render to the assignee an inventory of his assets, and a list of
devises or gifts to a subscribing witness are void unless there are two
creditors with their residences and post-office addresses, and the amount
other competent subscribing witnesses. No will made out of this State
of
their
respective
claims. Assignee, within six days from the date of
is valid as a will in this State, unless executed according to the provisions
filing the deed, must file with the clerk of the court an inventory and val
of the code, except that a will made in a State or country in which the
uation
of
the
property
of assignor under oath, and give bonds in double
testator is domiciled at the time of his death, and valid as a will under
the amount of the inventory or valuation. Where-real estate is assigned,
the laws of such State or country, is valid in this State as to personal
assignee
must
file
notice
with the clerk and recorder of each county where
property. A testamentary disposition may be made to any person cap
the same is situated. This shall be constructive notice. Notice of assign
able by law of taking the property so disposed of, except corporations
ment
must
be
published.
Assignee must send to each creditor a statement
other than those formed for scientific, literary or solely educational or
of the aggregate assets and liabilities, and notice to present his claim
hospital purposes cannot take under a will, unltss expressly authorized by
within three months. Claims filed within three months have priority over
statute.
those filed thereafter, unless creditor can show he did not receive notice.
At the end of three months, assignee shall file a full list of all creditors
who have filed their claims, their residences, the amounts claimed, and
amount and value of security held. Also a statement of all his proceed
ings. Any person interested may appear and file exceptions to any claim.
Notice must be given to creditor, and he must file his reply within the
time allowed to answer in a civil action. The court shall designate a time
SYNOPSIS OF THE LAWS OF COLORADO for hearing on the exception. If no exception be filed, or if the claim he
allowed, the court shall enter judgment m favor of the creditor against
assignor, and order assignee to make dividends in proportion to the claims
RELATING TO
of the creditors. Assignee is an officer of court and any interference with
him or bringing suit against him without permission of the court is
B A N K IN G A N D C O M M E R C IA L U S A G E S .
deemed contempt. The assignor is subject to order of court and may be
compelled to file reports of all conveyances of real estate and sales ot per
Prepared and Revised by Messrs. R ogers, Cuthbert & E llis, Attorneys
sonal property not in the usual course of business and such sales shall noi
at Law, Denver. (See Card in Attorneys' Inst.)
be valid until approved by the judge. The court may remove assignee
and appoint another if he neglects to file bond and inventory, or upon
A c co u n ts. In all actions on accounts, the cause of action is deemed
petition of the majority in number and value of creditors unless it appear
to have accrued at the time of the last item proved in such account.
that such removal will not be for the best interest of the estate. Assignee
has all the powers of assignor necessary to execute the trust, and right w
A c k n o w le d g m e n ts. When executed within this State; before any
sue for all property belonging to the estate. Assignee must file additional
judge of any court oi record, before the clerk of any such court of
inventory for all additional property coming into his hands. The court
record, or the deputy of any such clerk, under the seal oi such court;
may compel the appearance of a debtor or other witnesses. They may
„¿fore the clerk and recorder oi any county, or hie deputy, under the
compel the debtor to deliver to the assignee any property embraced m tne
sealof such county; before any notary public, under his notarial seal;
assignment. No assignment shall be invalid because of any misapproprior before any justice of the peace within his county; provided, that if
ation of property by the debtor, but assignee may recover such property ,
he deed, bond, or agreement be for the conveyance of lands situate
but debtor, until assignment, may convey and mortgage property m
beyond thecounty of such justice of the peace, there shall be affixed to
good faith. Debts not due may be claimed, but if the same are not bear
his certificate a certificate of the county clerk and recorder o r the
ing interest, a suitable rebate shall be made. Interest shall be computea
proper county, under his hand and sealof said county, to the official
to the date of the assignment and not afterwards. Majority of tne
capacity of such justice of the peace, and that the signature is the true
number and value of creditors may, in writing, appoint an attorney w
signature of such justice. When executed out of this State and within
represent the estate and the court may allow him reasonable compensa
the United States, before the secretary of any such State or Territory,
tion. The assignor, creditors, and assignee may agree m writing to waive
under the seal of such State or Territory; before the clerk of any
proceedings before the court and make such arrangements as may seem
court of record of such State or Territory or of the United States within
proper to them. Before assignee shall be discharged he shall file report
such State or Territory, having a seal, under the seal oi such court;
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
B A N K IN G A N D C O M M E R C IA L L A W S — C O L O R A D O .
and send written notice to all creditors at least ten days before hearing.
Assignee must close his trust within one year unless the court extend
the time. Valid claims of servants and employees of the assignor for
wages earned during six months next preceding the date of the assign
ment not exceeding $50 unpaid and held by the person who earned the
same and all taxes assessed under the laws of the State or of the United
States are preferred claims. Any creditor may maintain action on bond
of assignee for damages sustained by reason of his misfeasance. No
mortgage or deed of trust or security shall be foreclosed within one year
after the making of such assignment except under order of court and shall
not be foreclosed otherwise than by suit in court before it has first been
approved and allowed. And when such claim shall be approved, the
court may order foreclosure within one year. The lien shall not be im
paired by the suspension of the remedy.
D isc h a rg e o f D e b to r. Every person who shall hereafter make a gen
eral assignment, or shall have an assignment still pending, may be dis
charged from his debts upon compliance with this act. Such assignor
desiring a discharge shall after three months and within one year after
filing his assignment, or if the deed be filed prior to the passage of this
act, then within one year after the passage of this act, file with the clerk
of the court his application for such discharge, in which he shall state
the name and address of the assignee and creditors and the amounts of
tbeir respective claims, «together with an inventory of all his property.
Such assignee shall annex an affidavit stating that the statements in the
inventory are true, and that at no time during the insolvency has he dis
posed of property for the benefit of himself and family in fraud of his
creditors, and has never created or acknowledged a debt for more than
honestly due, nor fraudulently contracted any debt now due and not
secured, and has not paid, secured, or compounded with any of his cred
itors with the view of fraudulently obtaining the discharge, and has not
used any portion of his property within two months prior to the date in
giving preference to any creditors. The court shall thereupon make an
order requiring creditors to show cause why such assignor should not be
discharged, fixing the day for hearing and require a copy to be pub
lished for at least four weeks prior to the hearing, and that a copy be
sent within five days to each of the creditors whose address is given and
who have filed their claims. The application shall be regarded as a com
plaint, and any creditor may file at least ten days prior to the hearing his
answer, duly verified, setting forth the ground of his objection to such
discharge, which answer must controvert one or more material alle
gations of the affidavit. Allegations not controverted are taken as true.
All issues so formed shall be tried together, and upon demand of the
assignor or creditor, the case shall be tried by jury, otherwise by the
court. The verdict is to be recorded as in other cases, and costs taxed
against the unsuccessful party. When the jury can not agree the merits
are to be tried by the court. The assignor may be examined on oath at
the instance of the creditor, and such creditor may contradict or
impeach him. Every creditor residing without the State who shall
make proofs of his claim, or shall accept any dividend, or shall in any
way participate in the proceedings, shall be deemed a party to such pro
ceedings for the discharge of the assignor., The order discharging the
assignor from his debts shall be final and binding upon all such resident
creditors and all creditors residing without the State, subject to right of
appeal. If it shall appear upon hearing that assignor has in all respects
complied with the law, the court shall grant him a discharge from all
debts prior to the making of such assignment, but such assignor will not
be discharged from a debt shown to be fraudulently contracted. Or if a
creditor has a lien, such creditor may enforce his lien. Where the
assignor has given a preference in violation of this act without any inten
tion to defraud his creditors, he shall be entitled to his discharge, if,
within three months from the date of such finding, he causes such prop
erty to be conveyed to the assignee or pays to the assignee the amount
of such indebtedness. The assignor, however, may pay necessary house
hold expenses. The assignor shall not be discharged from any debt
created in consequence of any defalcation as a public officer, or in a
fiduciary capacity, nor for any debt of any person who has paid such
fiduciary debt. Upon granting such discharge judgment shall be entered
against the debtor in favor of such of his creditors as have appeared for
the sum allowed and also a discharge thereof upon the docket. In any
subsequent action brought against the assignor, such discharge may
be pleaded as a bar to a recovery for indebtedness or liability found due
in such proceedings and included in such judgment. Appeals may
be taken by such assignor or by any creditor from such judgment
within the time and in the same manner as appeals in ordinary civil
actions; provided the appeal bond shall be conditioned to pay the cost of
the appeal only. An appeal by some creditors shall not suspend the dis
charge from the debt of creditors not appealing. Discharge of any
debtor shall not affect the liability of any surety, indorser, guarantor,
joint-maker, or obligor of such assignor, or any other person liable for
the same indebtedness. Property acquired or liability incurred subse
quent to the petition for discharge are not affected. The County Court
has concurrent jurisdiction with the District Court in matters of assign
ment, where the amount involved does not exceed $2,000, and no appeals
are allowed to the District Court. Whenever such proceedings are pend
ing in the County Court, and it shall be found the amount involved
exceeds the sum of $2,000, the entire proceedings shall be transferred to
the District Court. The provisions of the code apply to all proceedings
under this act, except as otherwise provided. (In effect August 4, 1897.)
When any business is suspended by the action of creditors, or put in the
hands of a receiver or trustee, the claims of laborers and employes for
wages are preferred claims. Dividends remaining unclaimed for one
year after the declaration of the final dividend, may, after three months’
notice, be distributed pro rata among those known creditors who have
not been paid in full, and who have filed their claims for a share in the
distribution of such unclaimed dividends.
A ttachm ents. In actions on contracts, the plaintiff may have the
defendant’s property attached, upon filing a bond with sufficient sureties
in a sum not less than double the amount sued for; also an affidavit
made by the plaintiff, his agent, or attorney, setting forth the amount
and nature of the debt claimed, and one or more of the following grounds
of attachment: 1. Non-residence of defendant. 2. That defendant is a
foreign corporation. 3. That defendant is a corporation whose chief
office or place of business is out of this State. 4. That defendant is
evading service of process or has been absent from State for four months,
during all which time the debt has been overdue. 5. That defendant is
about to remove his property, or a material part thereof, out of this State.
<5. That defendant has fraudulently conveyed or transferred, or assigned
his property 7. That defendant has fraudulently concealed, or removed
or disposed of his property. 8. That defendant is about to fraudulently
convey or transfer, or assign his property. 9. That defendant ts about
to fraudulently conceal or remove, or dispose of his property, or has de
parted or is about to depart from this State, with the intention of having
his effects removed from this State. 10. That defendant has_ failed or
refused to pay the price or value of any article delivered to him, which
he should have paid for upon delivery. 11. That defendant has failed or
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1187
refused to pay the price or value of any work or labor performed, or for
any service rendered by the plaintiff, at the instance of the defendant,
and which should have been paid at the completion of such work or ser
vices. 12. That the defendant fraudulently contracted the debt, or by any
fraudulent conduct, procured money or property of the plaintiff. ' In jus
tice courts, the fact that the debt is for farm products, house rent,
household furniture and furnishings, fuel, groceries, and provisions,
clothing and wearing apparel for the debtor or his family, is additional
ground for attachment. Garnishee process will issue in aid of attach
ment when property of the debtor is found in the possession of third
persons. After an attachment suit has been commenced, other creditors,
upon filing complaint, affidavit, and bond before judgment in first suit,
may be made co-plaintiffs with first attaching creditor and prorate in
the attached property. No judgment can be entered until thirty days
after levy of attachment. If sufficient property is attached to render
the debtor insolvent, other creditors whose debts are not due may have
an attachment and share in the proceeds. A dismissal of the suit of first
attaching creditor does not affect subsequent attachments. Where it
appears necessary by affidavit filed, the writ may be executed on Sunday.
In all cases of attachment any person other than the defendant, claiming
any of the property or attached any interest therein, may intervene with
out giving bond, but the property shall not thereby be released. The
aims of laborers and employes for their wages, if presented in the statu
tory manner, are preferred as against all creditors except mortgagees
under duly recorded mortgages given to secure bona fide debts existing
before the labor was performed. If it is shown that the attachments
levied are sufficient in amount to render the debtor insolvent, the court
may allow suits to be brought and attachments to issue on contracts
not yet due, that such attaching creditors may pro rate, on the attached
property.
B a n k s , Savings. Savings banks shall have a capital of not less than
$25,000, which shall be paid in cash. There must be not less than three
incorporators, and the board of directors must consist of not less than
three members, all of whom must be siockholders. The board of direc
tors or trustees may invest one-half of the deposits made with them upon
personal security or in bonds or stock of this State or of the United States,
or in the bonds of any county, State, or school district of this State,
legally authorized to issue such bonds, or loan the sum upon bonds
secured by mortgage upon unincumbered real estate worth at least double
the amount loaned. Prom the remainder of said deposits, temporary
deposits may be made in any national bank, or in any bank of this State
incorporated under the general banking laws, but must not exceed $25,000
in any one bank; or all, or any part of said remainder may be kept on
deposit, interest, or otherwise, to meet current payments. On the first
Monday of January, April, July, and October of each year, a complete
statement of the condition of the bank must be filed with the State treas
urer, and published once a week for three successive weeks in a newspaper
of the county where the bank is situated. Officers and stockholders snail
be individually liable for all debts contracted while they are officers or
stockholders, equally and ratably to the extent of thtir respective shares
of stock. When a stockholder sells and transfers his stock, this liability
ceases one year thereafter. A later statute provides that shareholders
shall be held individually responsible for debts, contracts, and engage
ments of the bank in double the amount of the par value of stock owned
by them respectively. Savings banks must keep on hand or subject to
call, at least 20 per cent of their savings deposits. Such banks must be
organized under the laws of Colorado. In case of insol' ency, depositors
are preferred to all other creditors of the bank. No- officer shall be a
borrower, or a surety for a borrower, of any of the bank’s funds; nor shall
the bank discount any paper made, accepted, or indorsed by its cashier
or any of its clerks, or by any partnership cf which either is a member.
Dividends must be declared from net earnings only.
B a n k s, State. Any number of persons, not less than three, may
establish a bank of discount and deposit; the capital stock must not
be less than $30,000; 50 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 the county where such bank is located;
and no bank to continue to transact business beyond the period of one
year unless the capital stock shall have been fully paid up in cash and
a like certificate filed as before stated. No bank may take as security
a lien on any part of its capital stock, nor may it hold or purchase any
portion of its own stock, or of the capital stock of any other corporation,
unless such purchase is necessary to prevent loss upon a debt previously
contracted in good faith on security which at the time was deemed
adequate, independent of any lien on such stock. Stock so purchased
must not be held longer than six months, if it can be sold for what it cost,
or at par. Shareholders in banks, savings banks, trust deposit and
security associations shall be held individually responsible for debts,
contracts, and engagements of said association in double the amount of
the par value of the stock owned by them respectively. To be construed
with this, is the statute that officers and stockholders are individually
liable for all debts contracted while they are officers or stockholders
equally and ratably to the extent of their respective shares of stock. Any
banker, bank officer, or employe who receives money or property after he
shall have had knowledge of the insolvency of said bank, shall be deemed
guilty of larceny, and, on conviction, punished by imprisonment in the
penitentiary for not less than one year nor more than ten years, and
in addition shall be individually responsible for the property received.
Failure of the bank or banker within thirty days after receipt of such
money or property is prima facie evidence of knowledge of the insol
vency at the time of such receipt Loans to any one individual or corpor
ation are limited to 25 per cent of the paid-up stock of the bank. Loans
to an officer or director of the bank are limited to 90 per cent of the
stock held by such officer or director. Banks may purchase, hold, and
convey real estate, such as is necessary for immediate accommodation
in the convenient transaction of its business, or such as is mortgaged to
it in good faith as security for loans made or moneys due, or such as is
conveyed to it in satisfaction of debts previously contracted, or such as is
purchased at judgment or foreclosure sales. On the first Monday in Jan. uary and July a verified statement by the president or cashier shall be
filed with the State treasurer, containing a full abstract of the general
accounts of the bank, and showing plainly its resources and liabilities;
and the same shall also be published once a week for three successive
weeks in a newspaper of the county where the bank is located. Neglect
to make such statement for one month beyond the prescribed period
makes the directors personally liable for all debts contracted previous to
and during the period of such neglect.
B ills of E xch a n g e . (Bee Commercial Paper.')
B ills o f L a d in g and Prom issory Notes. (See Commercial Paper.)
C h a tte l Mortgages when recorded are good for two years where sum
secured does not exceed $2,500; for five years,when sum does not exceed
$20,000, and not exceeding ten years where sum secured exceeds $20,000;
but if the sum secured be greater than $2,500 mortgagee must annually
1188
B A N K IN G A N D C O M M E R C IA L L A W S — C O L O R A D O .
record statement stating that the mortgage secures a hona fide indebted
ness, the portion which has been paid, and the amount still due. As
between the parties thereto, all chattel mortgages are good until the
indebtedness is paid or is barred by the statute of limitations. Mortgages
of stocks of goods which reserve possession and power of sale to mort
gagor, are void as against creditors and bona fide purchasers. Disposing
of mortgaged property is larceny. Chattel mortgagee, his agent or
attorney, now allowed thirty days after maturity of debt in which to take
possession of mortgaged chattels, and during said thirty days, or until pos
session is taken by mortgagee, his agent or attorney, the mortgagor shall
have, the right to pay said debt and nave mortgage discharged as if debt
had been paid at maturity. Chattel mortgages, securing the purchase
price of any article may, at any time within thirty days after the maturity
of the_ indebtedness, be extended by the mortgagee for a period not
exceeding two years, and for like periods thereafter. Chattel mortgages
upon household goods used by the family, wheu made by husband or
wife residing with the other, must be made by husband and wife jointly.
C o lla te ra ls . Persons holding stocks in corporations as collateral
security not personally liable as stockholders for corporate debts. A
pledgee of stock may nevertheless represent same at corporate meetings.
C o m m e rc ia l P a p e r . To be negotiable, an instrument must con
tain an unconditional order or promise to pay to order, or to bearer, a cer
tain sum of money on demand, or at a fixed or determinable time. The
sum payable may be in a particular kind of current money; with interest;
with exchange; by stated installments; with provision that upon default
of payment of any installment or of interest, the whole shall become due.
The instrument may authorize in case of non-payment the sale of col
lateral securities-, or confession of judgment, or waive benefit of any
law intended for the advantage of the obligor. An instrument payable
on contingency is not negotiable. The date expressed is prim a fa d e
the true date. One in possession of an incomplete instrument has
prima fa d e authority to fill in the blanks, but authority must be
strictly pursued. An incomplete instrument not delivered is not
enforceable if completed and negotiated without authority. Holder may
treat an ambiguous instrument, either as a bill or a note. Where
capacity of person signing is not clear he is deemed an indorser. A
person .adding to his signature words indicating that he signs on
behalf of a principal, or in a representative capacity, is not liable if duly
authorized; but mere words of description without disclosing his prin
cipal does not exempt him. A signature by “Procuration” gives notice
that agent’s authority is limited. Consideration is prima fa d e presumed.
A pre-existing debt is a valuable consideration. A holder having a lien
on the instrument is a holder for value to the extent of his lien. An accom
modation party is liable to a holder for value with notice. Indorsement
must be written on the instrument itself or upon a paper attached. It
may be restrictive—prohibiting further negotiation, or vesting title for
the use of another; qualified—amounting merely to an assignment, or
conditional. Two or more payees, unless partners, must all indorse
unless one has authority for all. An instrument payable to a person as
cashier or other fiscal officer of a bank or corporation is deemed prima
fade payable to the bank or corporation, and may be indorsed by the cor
poration or by the officer. For one to be a holder in due course the
instrument must be complete and regular, and taken in good faith for
value before overdue, and without notice of any infirmity in the instru
ment or defect in title. To constitute notice of an infirmity or defect,
the person must have had actual knowledge or knowledge of
such facts that taking it amounted to bad faith. Holder is deemed
prima fa d e holder in due course; but when the title of a person who has
negotiated it is shown to be defective, the burden is upon the holder to
prove himself a holder in due course. A drawer may insert an express
stipulation negativing or limiting his liability. A qualified indorser
warrants the genuineness of the instrument; that he has a good title, and
that he has no knowledge of any invalidity. An unqualified indorser
warrants the instrument valid and subsisting. One indorsing an instru
ment negotiable by delivery is liable as indorser. Joint payees or indorsees
who indorse are deemed to indorse jointly and severally. Except when
excused, presentment for payment, or acceptance, on the day when due
is necessary to charge drawer or indorser of an instrument. Present
ment must be made to all parties primarily liable unless one has author
ity for all. Every negotiable instrument is payable at the time fixed
without grace. When the day falls on Sunday or a holiday the instru
ment must be presented on the next succeeding business day. An instru
ment payable at a bank is equivalent to an order to the bank to pay the
same for the account of the principal debtor. Except when excused,
notice of non-acceptance or non-payment must be given to the drawer
and to each indorser, or his agent, otherwise they are discharged. Notice
may be given by holder or by anyone in his behalf, and may be in writ
ing or oral, personal or through the mails, in any terms sufficient to
apprise the parties. Notice must be given to all parties unless they are
partners or one is authorized to accept for all. Notice must be given on
the next business day after dishonor, or if parties reside in different
places, mailed on such day. Waiver of protestis deemed a waiver of
formal protest, presentment, and notice of dishonor. Protest is required
only in case of dishonored bills appearing on their face to be foreign.
It is optional in case of other negotiable instruments. Bills drawn and
payable within this State are inland; others are foreign. Protest may
be made by notary public or by any responsible resident of the place
where the bill is dishonored, in the presence of two witnesses. Parties
secondarily liable are discharged by extension of time of payment.
Payment by a party secondarily liable, unless an accommodation party
does not discharge the instrument, but he may again negotiate it. Renun
ciation of holder’s rights against a party must be in writing, unless the
instrument be delivered up. Material alteration avoids an instrument,
except as against those assenting; but holder in due course, not a party
to the alteration, may enforce the instrument according to its original
tenor. A bill does not operate as an assignment of funds, and drawee is not
liable until he accepts. The drawer or indorser may insert the name of
the person called referee in case of need, to whom holder will resort if he
see fit. Acceptance must be in writing. If written on a paper other than
a bill, whether before or after the bill is drawn, it does not bind acceptor
except in favor of a person taking the bill for value on the faith thereof.
A qualified acceptance discharges drawer and indorser unless they assent.
Assent is presumed, after notice, unless they dissent. Holder can refuse
to receive a qualified acceptance. No presentment for payment is neces
sary after non-acceptance. A protested bill not overdue may be accepted
supra-protest for honor of any party liable. Maturity is calculated from
the date of noting non-acceptance, not from date of acceptance for honor.
Bill protested for non-payment may be paid supra-protest for the honor
of any person liable, or for the honor of one tor whose account it was
drawn. A note drawn to maker’s order is not complete until indorsed
by him. A check must be presented within a reasonable time or drawer
will be discharged to the extent of the loss caused by the delay. The
bank is not liaole to the holder until it accepts or certifies the check.
When not otherwise provided by this Act, the law merchant prevails.
This Act applies only to instruments executed on or after July 20,1897.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
C o n tra c ts. The following must be in writing: Contracts for leasing
of land for period longer than one year or for the sale of lands, or any
interest in lands; every agreement which by its terms is not to be per
formed within one year; every special promise to answer for the debt,
default or miscarriage of another; every agreement, promise, or under
taking made upon consideration of marriage, except mutual promises to
marry, and every contract for the sale of any goods, chattels, or things
in action, for the price of $50 or more, unless the buyer accepts and
receives part of such goods or the evidence of some of them, or the buyer
at the time pays part of purchase money. A creditor of joint debtors
may release one or more of such debtors and such release shall operate as
a full discharge of such debtor or debtors so released, but sm'h release
shall not release or discharge or affect the liability of theremaining debtor
or debtors. Such release shall be taken and held to be a pavment on the
indebtedness of the full proportionate share of the debtor or debtors so
released. In case one or more joint debtors are released, no one of the
remaining debtors shall be liable for more than his proportionate share
of the indebtedness unless he is the principal debtor and the debtor
released is his surety; in which case such principal debtor or debtors
shall be liable for the whole of the remainder of the indebtedness. Noth
ing herein shall affect or change the right of a surety who has paid his
proportionate share of indebtedness from recovering the same from his
principal debtor. (See Sales of Personal Property.)
C onveyances. No joint tenancy unless expressly declared in the
deed. Unless so declared grantees shall be deemed tenants in common.
Lands not in possession may be conveyed. Not necessary for wife to join
in deed except in a conveyance of or a mortgage of a homestead. Seals
and witnesses are unnecessary. Unacknowledged deeds are deemed
notice from the date of filing but they can not be read in evidence unless
subsequently acknowledged or proved. (See Acknowledgments,‘ Husband
and Wife.)
C o rp o ra tio n s. Three or more persons may form a corporation by
filing a certificate in the proper offices, stating the name, objects for which
organized, amount of capital stock, number of shares, term of existence'
(not to exceed twenty years, except in particular cases), number of direc
tors, and names of those to manage the corporation for the first year, the
place where principal office is to be kept, and counties in which its busi
ness is to be carried on. If part of the company’s business is to be car
ried on beyond the limits of the State, that fact shall also be stated in the
certificate., They may sue and be sued the same as individuals, may
borrow money and pledge their franchises and property to secure the
same. But the directors of a mining or manufacturing corporation can
not encumber the mines or plant of such corporation until the question
has been submitted to the stockholders and a majority vote of all the
shares of stock has been made in favor of such proposition; and such
mortgage or encumbrance without such consent is absolutely void.
Articles of incorporation may be amended in any respect except as to the
objects of incorporation. Directors shall be not less than three nor more
than thirteen, and must be stockholders. Shares of stock shall not be
less than $1, or more than $100 each. Notice of annual meeting must be
published not less than ten days previous thereto in a newspaper pub
lished nearest the principal office of the company and also by delivering
personally or depositing in the postofflce, at least thirty days before the
meeting, a notice addressed to each stockholder. Share holders may be
represented by proxy, and in case a majority of the stock is not repre
sented, the annual meeting may be adjourned for a period not exceeding
sixty days. Cumulative method of balloting for directors is permitted.
The omission of annual meeting does not dissolve the corporation, but
such annual meeting may be held at such time as the board of directors
may direct after proper notice. Stockholders are liable for corporate
debts to the amount unpaid upon the. stock, except that stockholders in
banks, saving banks trust, deposit and security associations are individ.
ually responsible for debts, contracts, and engagements of such association
in double the amount of the par vaille of their stock. When the stock be
comes fully paid up, a certificate to that effect should be filed in the office
of the secretary of State, and in the county wherein the corporation is doing
business. The directors are required annually, and within sixty days from
January 1st, to file a report stating the amount of the capital stock, the pro
portion actually paid in, and the amount of existing debts, together with
many other particulars too numerous to set forth here. A failure to file *
such report makes all the directors or trustees of the company jointly and
severally liable for all the debts of the company contracted during the year
next preceding the time when such report should have been filed, and
until such report shall be made and filed. N o meetings of the board of direc
tors can be held outside the State unless so provided by the articles of in
corporation. Corporations may be dissolved by a two-thirds vote of the
entire stock, but no dissolution will impair remedies against the cor
poration for liabilities previously incurred, nor will it take effect until
all the corporate debts have been paid. Foreign corporations are not per
mitted to do business in this State until they have filed with the secretary
of State a copy of their charter, and a copy of the incorporation act of the
State under which they are organized. They must also designate by a cer
tificate filed in the office of the secretary of State, an agent residing at the
principal place of business of the company in this State, upon whom pro
cess can be served. Such foreign corporations are subject to all the lia
bilities and duties imposed upon domestic corporations. They can not
effect a reconstruction by liquidation or otherwise, so as to affect a citizen
of this State, unless all his rights and interests are protected. No for
eign corporation can hold real estate except as provided by statute; can
not mortgage, pledge, or otherwise encumber real or personal property to
the injury of citizens of Colorado. Fee for filing Articles of Incorporation,
whether foreign or domestic, is $20, and 20 cents on each thousand shares
in excess of $50,000. A corporation under the laws of Colorado, not ad
ministered upon as an expired corporation or gone into liquidation or set
tled its affairs, may extend its charter by special meeting of the stockhold
ers called by 10 per cent of the entire capital stock, and notice of such
meeting, stating time, place, and purpose, published four consecutive
weeks in a newspaper printed nearest its principal office, notice also to be
mailed to each stockholder at least thirty days prior to the meeting; vote
taken by ballot; if majority of entire outstanding capital stock vote in
favor of same, president and secretary, under seal of the company, shall
certify the fact and file certificate in office of recorder of Deeds in each
county where the company does business and one in the office of the Secre
tary of State. Corporate life shall be renewed for entire term, not exceed
ing twenty years. Corporation shall pay to secretary of State same fee now
provided by law for filing corporation papers. As to corporations whose
charters expired prior to April 10,1905, the call for the meeting to con
sider extension must be signed, and the extension authorized, by the
owner s of two-thirds of the capital stock issued and outstanding: and
certificates of extension must be filed within four years of the expiration
of the charter, and within one year from July 9, 1905; as to all other cor
porations said certificates must be filed within one year from the expir
ation of the charter. Such extension shall not renew corporate fran
chises granted by municipalities. Provided that corporations still in
active operation shall have the right to extend their corporate existence even
B A N K IN G A N D C O M M E R C IA L L A W S -C O L O R A D O .
though their charter has expired more than one year. Foreign corporations
doing business in this State are not allowed a longer term of corporate
existence than domestic corporations of like character, but must file
renewal certificates and pay fees therefor in the same manner as domestic
corporations, provided that such renewal must not extend the life of the
foreign corporation beyond the term fixed by the State where it was
organized. No foreign corporation shall have or exercise any corporate
powers or hold or acquire any real or personal property franchises, rights,
or privileges, or be permitted to do any business or prosecute or defend
any suit in this State, unless all prescribed fees shall have been paid, and
until it shall have received from the secretary of this State a certificate
setting forth such full payment. In addition to the above general laws concerning the formation of cor
porations, etc.—the Revenue Bill passed at the special session of the
legislature and approved March 22, 1902, provides that “ In addition to all
other fees and _taxes now provided by law, every corporation which has
heretofore obtained, or which shall hereafter obtain a charter dr certificate
of incorporation from this State, and having a capital stock of $25 000, or
over, shall pay on or before the first day of May of each year, or at the
time of obtaining such charter or certificate of incorporation, and on or
before the first day of May of each year thereafter, as the case may be,
an annual State corporation license tax to the auditor of the State of
Colorado, as follows:
“ Two cents upon each one thousand dollars of its capital stock.”
It is also provided that every foreign corporation as a condition prece
dent to its right to do business in the State of Colorado, in substantially
the manner set forth in the preceding section, shall pay a tax of four
cents per thousand on its capital stock, except that foreign corporations,
the par value of whose shares is less than one dollar per share shall pay a
tax at the rate of two and one half cents per thousand shares —
This is known as the “ License Tax.”
Oiher provisions of this bill regarding annual reports, assessment of
tangible and intangible property, etc., too voluminous to be quoted, make
it advisable that care should be exercised by both domestic and foreign
corporations operating m the State to acquaint themselves fully with its
requirements. (See Guaranty Companies; Trust Companies; Transfer of
Corporation Stock.)
Costs. In actions on official bonds, or bonds of executors, administra
tors, and guardians, and in cases where the plaintiff is a non-resident,
the plaintiff, before instituting action, must file with the clerk of the
court an acknowledgment by some resident of the State of security for
costs. If such security is not given, a rule upon plaintiff to supply it
will be made. Upon failure to comply with such rule within the time
specified, suit is dismissed.
C ourts. Justices of the peace have jurisdiction in matters involving
less than $300, county courts in matters involving less than $2,000,
except in the administration of estates. The district court is the court of
general jurisdiction. The supreme courtis the court of final appeal, and
also has some original jurisdiction, as in cases of habeas corpus, man
damus and other remedial writs.
D ays o f Q ra ce . {See Commercial Paper.)
Deeds. (See Conveyances.)
D ep o sitio n s. The deposition of a witness out of the State shall be
taken upon commission issued by the clerk of the court where the
suit is pending, on the application of either party, on five days’ previous
notice to the other, which notice shall be accompanied by a copy of the
interrogatories to be attached to the commission. It may be issued to
a person agreed upon by the parties or to any judge or justice of the
peace, or to a commissioner appointed by the governor of the State to take
affidavits and depositions in other States and Territories, or to a notary
public. The adverse party may file and have attached to the commission
such cross-interrogatories as he may desire. Parties may agree by written stipulation to take the deposition orally, or, upon proper cause shown,
may obtain an order of court directing it to be so taken.
D escents a n d D istrib u tio n s. The estate of an intestate descends,
one-half to the surviving husband or wife, and the residue to the sur
viving children and descendants of children; if such intestate leave no
child, nor descendants of any children, then the whole of the estate
descends-to such surviving husband or wife. Except as enumerated
the estate of every intestate descends: 1. To his children surviving, and
the descendants of his children who are dead, the descendants collectively
taking the share which their parents would have taken if living. 2. If
there be no children nor their descendants, then to his father and mother,
share and share alike; and if there be no father, then to his mother, if
■there be no mother, then to the father; if there be no father or mother, then
to the brothers and sisters, and to the descendants of the brothers and
sisters who are dead, the descendants, collectively, taking the share of
their immediate ancestors in equal parts. 3. If there be no children, nor
their descendants, nor father, mother, brothers, sisters, nor descendants
of deceased brothers or sisters, nor husband nor wife living, then to the
grandfather, grandmother, uncles, aunts, and their descendants, the
descendants taking collectively the share of their immediate ancestors in
equal parts. 4. If none of the relatives above enumerated be living,
then to the nearest lineal ancestor and their descendants, the descend
ants collectively taking the share of their immediate ancestors in equal
parts. All posthumous children or descendants of the intestate, inherit
as if born in the lifetime of the intestate; and all children of the half
blood'and all legally adopted children shall incerit as children of the
whole blood. Alienage of descendants or divorce of husband and wife
shall not affect right of children previously begotten. illegitimate
children inherit if parents subsequently intermarry. If decedent leaves
a widow residing in this State she may retain as her separate property,
one bed and bedding, wearing apparel of herself and family, one cow and
calf, her saddle and bridle, one horse, household furniture of herself and
family, in addition to the amount and species of property that by law is
exempt from execution. The widow may take such property in kind or
its value in money. It is not subject to the payment of the debts of the
deceased.
D ivorce. Causes for divorce are: 1, Impotency. 2. A husband or
wife living. 3. Adultery. 4. Desertion for one year. 5. Cruelty.
6. Failure to support for one year. 7. Habitual drunkenness for one year.
8. Conviction of felony. Personal service of summons must be made if
defendant within the State. Personal service upon the defendant with
out the State, of a copy of the summons and complaint, made by the
sheriff of the county in which the defendant may be found, is sufficient to
give the court jurisdiction. Service may also be made by publication in
certain cases. Plaintiff must be present, and in case defendant defaults, the
court appoints an attorney to defend the action. Except in cases of
adultery or extreme cruelty, where the offense was committed within this
State, plaintiff must have been a bona fide resident of the State for one
year. Neither party to the divorce may marry within one year from the
date of the decree.
D o w er. Dower and curtesy are abolished.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1189
E vidence. The general rule is that all persons may be witnesses.
Neither parties nor persons interested in the event of an action or proceed
ing are excluded, nor those convicted of crime; nor is any one excluded
for his opinions on matters of religious belief, but the credibility of the
witness may be impeached by showing that he has been convicted of
crime. A party to any civil action may be examined at the trial by the
adverse party as if under cross examination, but the party calling for such
examination is not concluded thereby. With some exceptions, no party
or person directly interested in a suit, may testify of his own motion or
in his own behalf when the opposite party sues or defends as conser
vator, executor, administrator, or guardian.
E x ec u tio n s. Executions may be issued immediately where no appeal
is taken, and when placed in the hands of an officer become a lien upon
all personal property of the debtor not exempt, in the county to which it
is issued, and it may be directed to the sheriff of any county in the State.
Executions may issue upon judgments at any time within twenty years
from the date of entry, but from and after twenty years from the entry of
judgment, it is considered satisfied unless revived as provided by law.
Executions are returnable in ninety days in courts of record, and thirty
days in justices’ courts. Debtor or legal representative has six months to
redeem land from sale under execution. Judgment creditor has three
months after expiry of said six months.
E x em p tio n s. Homestead, consisting of house and lot 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 such homestead has been entered of record as such,
and is occupied by a householder the head of a family. Personal property
exempt includes all wearing apparel of the debtor and his family, pictures,
school books and library, beds and bedding, stoves, cooking utensils, and
household furniture, not exceeding $100; provisions and fuel for six
months; tools, implements, or stock in trade, up to $200 ; one cow and
calf, ten sheep and necessary food for six months ; working animals, up
to $200; the library and implements of a professional man up to $300; one
bicycle and one sewing machine. Persons not the heads of families are
entitled to tools, working animals, and stock in trade, not exceeding $300
in value. When debtor is head of family, or wile of head of a family,
60 per cent of wages due at the time of levy, under execution, attach
ment, or garnishment, is exempt, when such family resides in the State
and is dependent, wholly or partially upon such earnings for support. If
such wages do not exceed $5 per week at the time of levy, they are
entirely exempt. All money received as a pension, whether pensioner is
head of family or not. When debtor dies or absconds the money thus
exempted is exempt to his wife or children.
F ra u d . Any person or persons who shall be a party to any fraudu
lent conveyance or sale of any lands, tenements or hereditaments, goods
or chattels, or any right or interest issuing out of the same, or who shall
conceal, secrete, remove, or dispose of any goods or chattels, or shall be
a party to any bond, suit, judgment or execution, contractor conveyance
had, made, or contrived with intent on the part' of said parties, in either
case, to deceive and defraud, or defeat, hinder, or delay the creditor or
creditors, of such person or persons aforesaid in the collection of their
just debts, damages, or demands, shall, on conviction of either or all ot
said offenses, be punished by confinement in the penitentiary for a term
not exceeding three years.
F ra u d s, S ta tu te of. {See Contracts.)
F ra u d u le n t P u rc h a s e rs on C re d it. One who purchases goods
on credit under an assumed or fictitious name with intent to defraud the
seller: or having purchased goods on credit shall, with intent to defraud
the seller, sell, hypothecate, or otherwise dispose of them out of the usual
course of business; or secréte himself, or abscond, shall be guilty of a
misdemeanor.
G a rn ish m e n t. {See Attachments.)
G u a ra n ty C om panies. Three or more persons may associate to
carry on the business of suretyship, with authority to make loans on real
estate and personal security; to receive cash aeposits, or pay interest
thereon; to insure the fidelity of persons in places of trust and responsi
bility; to receive valuables for safe-keeping; to act as agents issuing
certificates for shares of stock, and for the management of sinking funds^
and to be sole and sufficient security. The articles of association must
be recorded in the office of the secretary of state, and a copy filed with
the clerk of the county where the principal office of the corporation is
located. The capital stock must be at least two hundred and fifty thou
sand dollars ($250,000) and fully.paid in A sworn semi-annual statement
of the company’s business must be filed with the secretary of state.
Under similar regulations, three or more persons may associate to insure
owners of real estate and mortgages from loss by defective titles, liens and
incumbrances, and to insure loans of every kind; tbe capital stock to be
not less than $100,000.
H olidays. The first day of January, the twelfth and twenty-second,
days of February, the thirtieth day of May, the fourth day of July, the
first Monday in September (Labor Day), any day appointed by the gov
ernor or president as a day of thanksgiving, the twenty-fifth day of
December, and Saturday afternoons during the months of June, July and
August of each year are legal holidays. When holidays fall on Sunday,
the Monday following shall be considered as the holiday. Notes matur
ing on Sunday or holidays are deemed payable on the day following.
H u sb an d a n d W ife retain their separate property, real and personal,
owned at marriage, and the rents, issues, profits, and proceeds thereof,
and any real, personal or mixed property which shall come to either of
them by descent, devise, or bequest, or the gift of any person, including
presents from the husband — for their own separate use. Such property
of the wife is not liable for the husband’s debts. Wife may carry on trade
or business, sue and be sued, contract debts, and execute promissory
notes, bonds, bills of exchange, and other instruments precisely as if
sole, and may convey real estate without the husband joining in the
deed. Any chattel mortgage upon, or sale of, the household goods used by
the family, and any conveyance of, or mortsage upon, a homestead, when
made by husband or wife residing with the other, must be joined in by that
other. A married woman may make a will, but neither husband nor wife
shall devise or bequeath more than half of his or her property away from
the other without the consent in writing of the other, executed after death
of the testator or testatrix. It is optional with such husband or wife, after
the death of the other, to accept the condition of such will, or one-half of
the entire estate. Marriage revokes a will previously made. In all mar
riages hereafter contracted, the husband shall be liable for the debts
and the liabilities of the wife contracted before marriage, to the extent
of the real and personal property he may receive with or through her, or
derive from the sale or rent of her lands, and no further. The expenses
of the family and the education of the children are chargeable upon the
property of both husband and wife, or either of them,and in relation thereto
ihev may be sued jointly or severally. Either husband or wife living
together can separately declare property of record in the name of the
other “A Homestead,” by an entry of record over his or her signature,
1190
B A N K IN G A N D C O M M E R C IA L L A W S — C O L O R A D O .
using the one word “ Homestead.” Neither can mortgage or convey
homestead without the signature of the other, and wife must acknowl
edge separate and apart from her husband. {See Acknowledgments.')
In ju n c tio n s . An injunction may be granted: 1. When it appears
that the plaintiff is entitled to the relief demanded and that such relief
consists in restraining the commission or continuance of the act com
plained of during the pendency of the litigation, or for a limited period or
perpetually; 2. When it appears that the commission of some act would
produce great or irreparable injury during the litigation; 3. When it
appears that the defendant is doing, or threatens, or is about to do some
act or is procuring, or suffering to be done some act in violation of plain
tiff’s rights respecting the subject matter of the action and tending to
render the judgment ineffectual; also in such_ other cases as courts of
equity have heretofore granted relief by injunction.
In so lv e n c y . {See Assignments.)
In s u ra n c e C om p an ies. All insurance companies must annually
ay to the superintendent of insurance two per cent on the gross
amount of premiums received during the year previous. No fire insur
ance company can do business in this State, unless it has a paid-up cash
capital of at least $200,000. A life-insurance company must have a capi
tal of at least $100,000. An insurance company organized for any other
purpose must also have a capital of at least $100,000. All foreign insur
ance companies must not only comply with the conditions of the insur
ance laws of this State, but must also deposit with the treasurer of this
State, or a duly authorized officer of the United States, a sum not less
than the capital required of like companies in this State. No fire insur
ance company can re-insure in any manner any risk taken by it on prop
erty in this State in any other company not authorized to transact busi
ness in this State, nor can it transfer or cede to any company not author
ized to do business in this State any insurance upon property in this
State. The penalty for the violation of this provision is the revocation
of its authority to transact business.
I n t e r e s t . The legal rate is 8 per cent, but any other rate may be fixed
by agreement. The same is allowed on overdue bonds, bills, promissory
notes, and judgments. County, town, and city warrants, and other like
evidences or certificates of municipal indebtedness bear 6 per cent
interest from presentation. There are no usury laws.
J u d g m e n ts . A transcript of judgment may be filed in the office of
the county clerk and recorder of any county in the State and thereupon
such judgment becomes alien upon all real property owned by the judg
ment debtor in that county. The lien holds for six years from the date
upon which filed (and successive transcripts may be filed). An unsatisfied
judgment should be revived every twenty years. {See Executions.)
J u ris d ic to n . {See Courts.)
l i m i t a t i o n s . Actions for the recovery of land must be brought within
twenty years after the accrual of the riaht of action. Actions for the
recovery of lands actually occupied by another under a connected title
deducible of record lrom the State or the United States, or under tax or
execution of other sale ordered by court, must be brought within seven years
after possession taken. If title is acquired after taking possession, statute
runs from date of acquiring title. Actual possession of land for seven years
under claim and color of title, with payment of all taxes for said period,
constitutes the possessor owner according to the purport of his paper title.
The same is true of vacant and unoccupied lands, unless some one with a
better paper title pays the taxes for one or more years during such term of
■seven years. Actions of debt founded upon contract, express or im
plied; upon judgments of courts not courts of record; for arrears of
rent; of assumpsit—or case founded on any contract; for waste and
trespass on land and for replevin, must be begun within six years after
the cause of action accrues. {See Accounts.) Actions against sheriffs and
coroners, for liability incurred by them in their official capacity, shall be
brought within one year after the cause of action accrues, also actions for
assault and battery, false imprisonment, slander and libel; also actions for
penalties or forfeitures of penal statutes. Bills of relief on the ground of
fraud must be filed within three years after the discovery of the
fraud by the aggrieved p arty ; in case of a trust not cognizable by
the courts of common law within five years. In actions accruing out of the
State upon contract, express or implied, or upon any sealed instrument
in writing, or judgment or decree of any court, more than six years before
the commencement of the action, the statute of limitations may be pleaded
in bar of recovery. If a judgment has been rendered without this State
more than three months before suit in this'State, and is based on a cause of
action more than six years old, such cause of action can be pleaded in bar
of the judgment. The constitutionality of this latter provision has, how
ever, been attacked, and is very doubtful. (See 117 Fed., 400.) Persons
under the age of twenty-one years, married women, persons insane,
imprisoned, or absent from the United States, may bring any of the
■foregoing actions within the time in this chapter respectively limited
after the disability shall be removed. If any person entitled to bring
any of the foregoing actions shall die before the expiration of the time
limited therefor, and if the cause of action does by law survive, the
action may be commenced by the executor or administrator of the deceased
person at any time within one year after the grant of letters testamentary
or of administration, and not afterwards, if barred by the provisions of
this chapter. Payment or new promise by one co-obligor will not take
the case out of the statute as to the others.
M a rrie d W o m e n . {SeeHusband and Wife.)
M echanics* L iens. Mechanics, material-men, contractors, sub-con
tractors, builders, and all persons of every class performing labor upon,
or furnishing materials used in the construction or repair of any building,
mill bridge, ditch, flume, aqueduct, reservoir, tunnel, fence, railroad,
wagon-road or any other structure or improvement upon land; also
architects, engineers, and draftsmen, and all who have rendered their
professional, skilled service upon such structure, or any part connected
therewith, shall have a lien upon the property upon which they have
rendered service; also those who work or furnish materials, or mining,
milling, or other machinery for the working, preservation, perfect
ing. or development of mining claim or mineral deposit, shall have a
similar lien. As between the reputed owner and a contractor, the
lien extends to the entire contract price in favor of all persons performing
labor or furnishing materials, and after ail such liens are satisfied, there
is a lien for any balance in favor of the contractor. The liens cover so
much of the land whereon such buildings or improvements are placed as
is necessary to the convenient use and occupation of the same. All liens
relate back to the time of commencement of work on the contract between
the owner and the first contractor. Liens rank in the following order:
1 Laborers or mechanics working by the day or piece, without furnish
ing material. 2. Sub-contractors and material-men, whose claims are
either entirely or principally for materials, machinery or other fixtures.
3 All principal contractors. Intending lienors must file for record in
the office of the county clerk and recorder a statement containing (1) the
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
name of the owner of the property, when known. (2) the name of the
person claiming the lien aud the name of the person who furnished the
material or labor for which the lien is claimed and the name of the con
tractor, when the lien is claimed by a sub-contractor, (3) a sufficient
description of the property 'to be charged (4) a statement of the total
amount of the indebtedness. Copy of lien statement must be served
upon owner or his agent at or before the time of filing with the clerk and
recorder. Laborers are allowed one month, material-men two months, and
the original contractor three months after the completion of the structure,
within which to file claim of lien. Action to enforce such lien must be com
menced within six months after completion of the building upon which
it is claimed.
M o rtg a g es. The old form of trust deed has been practically abol
ished. A public trustee is now appointed in each county, and where it is
desired to use the old form of trust deed, the public trustee must be named
as trustee. In case any person not the public trustee is named as trustee,
the instrument is deemed a mortgage, and must be foreclosed the same
as a mortgage. In case the public trustee is named, the property is sold
by him as provided in the deed, after advertisement in a newspaper desig
nated in the trust deed, and such adyertisement shall not be less than
four weeks. Upon a sale by the public trustee, a certificate of sale is
issued. A subsequent incumbrancer may redeem by paying the amount
bid, and the sum so paid shall be added to the amount of the subsequent
incumbrance.- The grantor in the trust deed, or his assigns may redeem
from sale within six months. After six months, and within nine months,
a judgment creditor may redeem. After the expiration of the period of
redemption, the public trustee executes a deed to the property to the
holder of the certificate of sale, which is assignable. Redemption from
sales of mortgaged property the same as sales under executions. A
deed of trust, pledge or mortgage, given to secure a debt, is without force
or effect after six years from the maturity of the debt, and the property
conveyed thereunder or transferred to secure the debt, reverts to the
owner. {See Husband and Wife.)
N o ta rie s. Notaries may receive proof of acknowledgment of all
instruments of writing relating to commerce and navigation, of deeds
and powers of attorney; they may make declarations and protests; may
administer all oaths provided for by law and do all acts usually done by
notaries in otner States. They must keep a record of their official acts
and attest them bv a notarial seal.
N otes a n d B ills o f E x c h a n g e . {See Commercial Paper.)
P a r tn e r s h ip s , L im ite d a n d S p e c ia l. A limited partnership
may consist of one or more general partners, jointly and severally liable,
and one or more special partners contributing a specified amount of cash
or property, who are not liable for the debts of the partnership beyond
the amount so contributed. Only the general partners can bind the firm.
A certificate must be signed and acknowledged by all, giving the name
of the firm, the nature of the business, names and designations of the
general and special partners, the place of residence of each and the prin
cipal place of business, the amount of stock contributed by each special
partner, and the period of commencement and termination of the part
nership. This certificate must be recorded in the office of the county
clerk m each county where the partnership has a place of business, and a
practically similar certificate must be published in a county newspaper
for four weeks. All persons trading under the name of manager, trustee,
agent, or in any other representative capacity, or using the words “ & Co.”
or “ & Company,” or doing business under any name other than their
personal names, must file with the county clerk an affidavit showing the
real persons whom they represent. Traders in default may not bring
suit upon debts due, and may be convicted and fined.
P o w e rs o f A tto rn e y . Powers of attorney for the conveyance of
lands must be acknowledged in the same manner as deeds, and must be
recorded in the same county wherein me real property to be conveyed is
situate.
P ro te s t. {See Commercial Paper.)
R e d e m p tio n . {See Executions and Mortgages.)
R e p le v in . A writ of replevin may issue in any suit to recover pos
session of personal property upon filing &bond in double the.value of the
property, together with an affidavit stating that plaintiff is the owner of
the property in controversy or is lawfully entitled to the possession
thereof; that it is wrongfully detained by the defendant; that the same
has not been taken for a tax, assessment, or fine, or under execution, or
attachment issued against the property of the plaintiff, or if seized, that
it is exem pt; and the real value of the property. At any time within
forty-eight hours from the service of the writ, the defendant may have
the property redelivered to him by executing a bond in double the value
of the property, with two or more sureties. The sheriff acting under
such writ, after publicly demanding the delivery of the property, may
break open a building, if delivery is refused.
Sales o f P e rso n a l P ro p e rty . Every sale or assignment of goods
and chattels in the possession or under the control of the vendor is void,
as against creditors or subseqnent purchasers in good faith, unless accom
panied by immediate delivery and followed by actual and continued
change of possession. This presumption is conclusive. Sales of any
portion of a stock of merchandise otherwise than in the ordinary course
of trade in the regular and usual prosecution of the seller’s business, or sales
of entire stocks of merchandise in bulk, are prima facie evidence of fraud,
and are void against creditors of sellers, unless seller and purchaser to
gether, at least five days before sale, make a full inventory, showing the
quantity, and so far as possible with reasonable diligence, the cost price
to seller of the various articles included in the sale; and unless purchaser
at least five days before the sale, makes full inquiry of the seller as to names
and addresses of all creditors <f seller, and the amount due to each, and
obtains a written answer; and unless the purchaser at least five days before
the sale, notifies each creditor of whom he can obtain knowledge,
either personally or by registered mail, of the proposed sale, of the cost
price of the goods included in it, and of the proposed selling price; and
unless the purchaser retains the inventory andi written answer at least six
months after the sale. Answer must be made by seller to above
inquiry at least five days before sale. If seller knowingly makes false or
incomplete answers, he becomes guilty of a misdemeanor, punishable by
fine not to exceed $5,000, or one year in jail, or both. This act does not
apply to sales by executors, administrators, receivers, assignees for cred
itors, or public officers conducting gales in their official capacity. {See
Husband and Wife.)
Service. A summons is served by delivering a copy to the defendant,
or by leaving it at his house, with some member of his family over the age
of fifteen years, or at his usual place of business with his clerk. Service
on a corporation may be made on certain designated officers, or in
default of them, on an agent or stockholder; in case of a railroad com
pany, on an officer or ticket agent. A written acknowledgment of service
by a defendant is sufficient; if defendant refuses to receive copy of sum-
B A N K IN G A N D C O M M E R C IA L L A W S — C O N N E C T IC U T .
mons, offer of service by the officer is sufficient. Service by publication is
allowed after summons has issued and a return made that the defendant,
after diligent search, can not be found in cases of attachment, foreclosure,
claim, and delivery, or other proceedings in rem\ also upon domestic
corporations when none of the officers or persons designated for the
service of process can be found.
Suits. (See Actions.)
T axes are a perpetual lien on real estate until paid, as also upon stocks
of goods including new goods added thereto. Taxes may be .paid in two
semi-annual installments; the first half on or before the last day of Feb
ruary, and the residue on or before the last day of July of the year follow
ing the one in which they are assessed. Real estate sold for taxes
redeemed any time within three years. All mines and mining property of
the class heretofore exempted by the constitution of the State shall be
assessed and taxed, and the taxes levied and enforced by sale of the
property taxed in default of payment, as is provided by law in the case of
other classes of taxable real properties. Delinquent taxes carry interest
at the rate of 15 per cent per annum. Household goods to the value of
$200 belonging to a head of a family are exempt.
T estim ony. (See Evidence.)
T ra n s fe r o f C o rp o ra tio n Stock. No transfer of stock is valid
for any purpose except to render the transferee liable for the debts of the
company, unless it has been entered in the corporation stock book within
sixty days from the date of such transfer, by an entry showing to and from
whom the transfer is made. This requirement applies also to pledges of
stock.
T ru st C o m p an ies. Five or more persons may incorporate for the
purpose of carrying on a trust, deposit, and security business. The capital
stock must not be less than $250,000 in cities of the first class, and $50.000
in cities of the second class. The corporation may own real estate
and invest its funds in bonds and mortgages.
W arehouse R e c e ip ts . Warehouse receipts are transferred by en
dorsement, either in blank or to the order of another, and the delivery of
the receipt is a valid delivery of the property, unless the receipt has the
words “not negotiable,” written, printed, or stamped on its face. In case
of pledge by assignment of warehouse receipts, the goods must be marked
for identification, or separated from a mass of goods of the same kind, or
set apart that the pledgee may hold the same against attachment in suit
against pledgor. „
W ills. Males of the age of twenty-one years, and females of the
age of eighteen years, may dispose of their property by will, but personal
property may be disposed of by will by any person of the age of seven
teen years. For restrictions as to married persons (See Husband and
Wife.) All wills, whether of realty or personalty, shall be in writing
signed by the testator or some one for him in his presence and at his
direction, and attested in his presence by two or more credible witnesses.
Unless otherwise expressed in the will, an after born child will share in
the property. Devises and bequests to witnesses are null and void, unless
the will be attested by a sufficient number of witnesses exclusive of such
persons. No will can be revoked otherwise than by the subsequent mar
riage of the testator, or by burning, tearing or obliterating the same by
the testator, or in his presence and by his direction and consent, or by
another will or codicil, declaring the same, duly signed and witnessed.
The property devised hy will must be administered by the Probate Court,
and all property of non-residents must be administered to clear title to
real property situated in this state. ( See Husband and Wifej Descents
and Distributions.)
SYNOPSIS OF THE LAWS.OF CONNECTICUT
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S .
Prepared and Revised by J ames E. W heeleb , Attorney at Law,
New Haven.
A ccounts. In all actions for a book debt, the entries of the parties
in their respect ive books shall be admissible in evidence. (For limita
tion of actions on accounts, see Limitation to Suits.)
A c k n o w led g m e n ts. (See Conveyances.)
A ctions. There is but one form of civil action. Mesne pro
cess in civil actions consists of a writ of summons or attachment, describ
ing the parties, the court to which it is returnable, and the time and place
of appearance, and embodies the plaintiff’s complaint. All such writs
shall be signed by a justice of the peace, commissioner of the superior
court, or judge or clerk of the court to which it is returnable. The com
plaint should contain a concise statement of the facts constituting the
cause of action and a demand for relief; and legal and equitable relief
may be demanded in the same action, except in actions before justices of
the peace, who have no equity jurisdiction. Process returnable to a
justice of the peace must be served on the defendant at least six days
before the return day. If returnable to the superior court, or court of
common pleas, it must be served at least twelve days before the return
day, except in actions returnable to the court of common pleas for New
Haven County, service of which may be made six days inclusive before
the return day if the defendant resides in the town of New Haven. Gar
nishees must be served at least twelve days before the return day in any
court.
A d m in is tra tio n o f E s ta te s . The probate court has jurisdiction
of deceased estates. Administration on intestate estates is granted to
the husband or wife, or next of kin or to both. On their refusal or inca
pacity, or upon objection by any creditor or heir to such appointment
(which said objection must be considered sufficient by the court), then to
any other person whom the court deems proper. Bonds, which must
be furnished by the administrators or executors, are usually made
double the estimated value of the personal property. Bonds of surety
companies authorized to do business in the State may be accepted.
Where the will waives the bond a nominal bond is required, usually
in double the amount of the debts of the testator. Deceased estates
may be settled as solvent or insolvent. Not less than six months are
limited for the presentation of claims against deceased estates, whether
solvent or insolvent. Such claims are presented to the administrator or
executor if the estate is solvent, or to commissioners appointed by the
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1191
probate court if the estate is insolvent. Creditors not inhabitants of
this State may exhibit’their claims against any estate which has not been
represented insolvent, at any time within one year after order of notice,
and shall be entitled to payment only out of the clear estate remaining
after payment of claims exhibited within time limited. Suit must be
brought within four months from the time of receiving written notice
from the administrator or executor of a solvent estate of the disallow
ance of a claim. Twelve months is the usual time allowed for the. set
tlement of deceased estates. Administrators and executors may mort
gage real estate if shown to be for benefit of the estate, after due applica
tion to, and hearing in probate court.
A ffidavits. Civil actions do not ordinarily have to De supported by
affidavits. Affidavits have little weight as evidence, and are rarely
admitted as such except in ex parte matters, such as uncontested
divorce cases, and the like, where they are sometimes received. Bills of
particulars should in most cases be sworn to.
A llen s. Any alien resident of any of the United States, and any
citizen of France, so long as France shall accord the same right to citizens
of the United States, may purchase, hold, inherit, or transfer real estate in
this State in as full a manner as native-born citizens. Real estate may be
acquired and held by any non-resident alien for mining and quarrying
purposes, but shall be forfeited if not used for such purposes for ten
consecutive years.
A p p e a ls . Appeals may be taken from the judgments of justices of
the peace, except that no such appeal can be taken in actions of summary
process. Defendant’s procedure in such case is by writ of error.
Defendant has forty-eight hours from date of judgment to file
bill of exceptions and procure writ of error. He must give bond to
adverse party to answer for rents during time of appeal. Appeals may be
taken from city courts and the Wateroury district court to the superior
court where the matter in demand is of sufficient amount. Appeals
may be taken from the orders or decrees of the probate court to the
superior court, also from the decision of the superior court, court of
common pleas, Waterbury district court, or any city court, on questions
of law, to the supreme court of errors.
A rb itra tio n . Parties to any controversy desiring to submit the same
to arbitration under a rule of court, and having signed and sworn to an
agreement to that effect, may, upon filing this agreement in the court
having jurisdiction of the subject matter, have this agreement entered of
record and obtain a rule of court that the said parties shall submit to and
be finally concluded by such arbitration; or the said parties may person
ally appear in court ana acknowledge that they have mutually decided to
submit their controversy to the arbitration of certain named persons and
may obtain a rule of court of similar purport; or in case of an action pend
ing in court, if the parties thereto desire to refer it to arbitration, each
may choose one arbitrator and the court appoint a third; and in either of
these three cases, the award of the arbitrators being returned and accepted
by the court, judgment shall be rendered pursuant thereto, and execution
granted thereon, with costs.
A rre s t. The body is exempt in ordinary actions for debts, except for
money received by one acting in a fiduciary capacity, or where there is
fraud in contracting the debt or in concealing attachable property so that
it may not be reached by civil process. In actions generally, no attach
ment shall be granted against the body unless each cause of action in
the complaint be such .that execution may be issued against the body of
the defendant upon the judgment founded thereon. Debtors may be
arrested in actions for fraud or torts, and can give bail to the officer
making the arrest for their appearance, before the court to which the
writ upon which the arrest is made is returnable. A debtor committed
to jail on civil process can be released on taking poor debtors’ oath. The
debtor will not be released if his oath is overcome by rebutting
evidence.
A ssignm ent* a n d In so lv e n cy . Voluntary assignments in insol
vency can be made by any debtor to a trustee of his own selection, sub
ject to the substitution of another by the probate court, if deemed
proper. Assigning debtor must lodge with court of probate, within
five days after assignment, a list verified under oath of his creditors,
with their residences and the amounts severally due them, and a schedule
of his property. A creditor for over $100, having brought suit and find
ing no property to attach, may apply to the probate court for the
appointment oi a trustee in insolvency of the debtor’s estate. Trustee
takes all debtor’s estate not exempt; and all incomplete levies or at
tachments on mesne process commenced within sixty days previous,
are dissolved'. Three to six months are allowed to prove claims. The
debtor may receive an allowance for his support and that of his family;
and if the estate pays 70 per cent of all claims proved, he obtains
a full discharge, and his property is exempt for two years from
all legal process as against any claim that might have been proved
against his estate. Upon payment of 50 per cent the court, if re
quested by the debtor, may order the trustee to pay the debtor 25 per
cent of the residue of such estate to be exempt from attachment,
provided such payment does not exceed $1,000. All debts due any
laborer or mechanic for personal wages for labor performed within
three months next preceding the assignment are to be paid in full to
the amount of $100, before the general liabilities of the debtor are paid.
Operation of this section suspended during continuance of U. S. Bank
ruptcy Act. Courts of probate in some sections of State will now accept
voluntary assignments in insolvency of corporations, on ground that
bankruptcy act does not provide for such cases. A creditor can, however,
have such case removed to United States court.
A tta c h m e n ts . Attachment may be made upon the original process,
and is served by attaching the goods or lands of the defendant, or, if
sufficient goods be not found, the person in tort actions. Attachments may
be granted upon all complaints containing a money demand. Supple
mental attachment may be ordered by the court upon application at any
time during the pendency of the action. If the plaintiff be a non-resident,
he is required to furnish a bond for prosecution from ten dollars to one
hundred and forty dollars, according to amount attached. An attach
ment lien expires unless execution is levied within sixty days after final
judgment upon the attached personal property, or within four months
upon the attached real estate. (See Exemptions.)
B an k s. (See State Banks and Trust Cos.)
B ills o f E x ch a n g e. (See Notes and BiUs.)
B ills o f L ading. Signed by master with owner’s consent, renders
owner as well as carrier liable to shipper. A provision in a bill of lading
exempting carrier from all negligence, is void. As against a consignee,
the owner and master of vessel is bound by bill of lading as to weight of
cargo, and the consignee, if sued for freight, may recoup deficiency in
cargo. As between shipper and ship owner, bill of lading always open to
explanation, but not where consignees are deceived and shipper knew or
might have known that bill was incorrect. In such case, master responsi-
1192
B A N K IN G A N D C O M M E R C IA L L A W S — C O N N E C T IC U T .
ble to extent of his freight. Delivery of bill of lading held_ a symbolical
delivery of property represented. Shipper hound by valuation in bill of
Jading in case of loss.
C h a tte l M ortgages. {See Mortgages, Conditional Sales, and
Interest.)
C o lla te ra l In h e rita n ce or Succession T a x . {See Taxes.)
Co nditional Sale». All contracts for the sale of personal property,
except household furniture, musical instruments, bicycles, and such
property as is by law exempt from attachment and execution, con
ditioned that the title thereto shall remain in the vendor after delivery,
must he in writing, describing the property and all conditions of sale,
and acknowledged before proper authority, and recorded in town where
vendee resides. If not made as required, they are held to be absolute
sales, except as between the vendor and vendee or their personal repre
sentatives. A crime to conceal or convey personal property held on such
conditional sale.
C o n trac ts. No civil action shall be maintained upon any agreement
whereby to charge any administrator or executor upon a special promise
to answer for damages out of his own estate; or against any person upon
any special promise to answer for the debt, default, or miscarriage of
another; or upon any agreement made upon consideration of marriage;
or upon any agreement for the sale of real estate, or any interest in or con
cerning it; or upon any agreement that is not to be performed within one
year from the making thereof, unless such agreement, or some memoran
dum thereof, he made in writing and signed by the party to be charged
therewith or his agent; but this does not apply to parol agreements for
hiring or leasing real estate, or any interest therein, for one year or less,
in pursuance of which the leased premises have heen or shall he actually
occupied by the lessee, or any person claiming under him, during any part
of such term. No agreement for the sale of any personal property for fifty
dollars, or upwards, shall he good unless the buyer shall accept and actu
ally receive part of the property sold, or give something to bind the bar
gain, or in part payment, or unless some memorandum in writing of such
agreement shall be signed by the parties to he charged therewith, or their
agents. Courts of probate having jurisdiction of the settlement of the
estate of any deceased person may, concurrently with the courts of equity,
authorize the executor or administrator to convey the title of the deceased
in any real estate to any person entitled to it, by virtue of any contract of
such deceased person, and the court of probate in which the guardian
of any minor has been appointed may, in like manner, order such guar
dian to convey the interest of his ward in any real estate which ought m
equity to be conveyed to another person. Contracts for the conveyance
of lands or of any interest therein, may be recorded in the records of the
town in which such lands are; and such record shall be notice to all the
world of the equitable interest thus created. All contracts, any part of
the consideration of which has been the illegal sale of spirituous and
intoxicating liquors shall be void. All wagers and all contracts and secu
rities whereof the whole or any part of the consideration shall he money
or other valuable thing won, laid or betted at any game, horse race, sport
or pastime, and all contracts to repay any money knowingly lent at the
time and place of such game, race, sport, or pastime, to any person so
gaming, hotting, or wagering, or to repay any money lent to any person
who shall at such time and place, so pay, bet, or wager, shall be utterly
void. All fraudulent conveyances, suits, judgments, executions, or con-,
tracts made or contrived with intent to avoid any debt or duty belonging
to others, shall, notwithstanding any pretended consideration therefor, be
void as against those persons only, their heirs, executors, administrators,
or assigns to whom such debt or duty belongs. Any party to any such
fraudulent proceeding who shall wittingly justify the same as being made
in good faith and on good consideration, shall forfeit one year’s value of
any real estate and the whole value of any personal estate conveyed,
changed, or contracted for thereby; half to the party aggrieved, who shall
sue for the same, and half to the State. Contract o f incapable person
pending appointment of conservator or of spendthrift pending appointment
of overseer, void when selectmen have filed in town clerk’s office certified
copy of application in case of incapable person and certified notice of pro
posed appointment in case of spendthrift. No person who receives a
valuable consideration for a contract, express or implied, made on Sunday,
shall defend any action upon such contract on the ground that it was so
made until he restores such consideration. {See Sates by Retail Dealers.)
Co n veyan ces. All conveyances of land must be in writing, signed,
sealed, and acknowledged by the grantor, and attested by two subscrib
ing witnesses. The word “ seal” or the letters (L. S ) may be need for
a seal. The acknowledgment is made by the grantor before a judge of a
court of record of this State or of the United States, a clerk of the supe
rior court, court of common pleas, or district court, justice of the peace,
commissioner of the school fund, commissioner of the superior court,
notary public, town clerk, or assistant town clerk, if in this State, and
if in any other State or Territory of the United States, then before a
commissioner appointed by the governor cf this State, or any officer
authorized to take the acknowledgment of deeds in such State or Terri
tory, and if in a foreign country, before any consul of the United States,
or notary public, or justice of the peace in such foreigh country. Convevances of real estate situated in this State, executed and acknowl
edged in any other State or Territory, in conformity with the laws of
such State or Territory, are valid. If the land conveyed belongs to the
wife, the husband should join in the conveyance, if married before April
20,1877. If the land conveyed belongs to the husband, the wife need
not join in the conveyance. No separate examination of a married
woman is required in taking her acknowledgment. Conveyances, in
cluding leases for more than one year, to be effectual against any other
person than the grantor and his heirs must be recorded on the town
records of the town in which the land lies.
Corporations. Any three or more persons may associate to form a
corporation for the transaction of any lawful business except that of bank,
i savings bank, a trust company, a building and loan association, an in
surance company, a surety and indemnity company, a steam railroad or a
street railway company, a telegraph company, a gas, electric light, or
water company, or any company which shall need to have the right to
take and condemn lands or occupy public highways of this State. Noth
ing within shall be construed as prohibiting any corporation, organized
ander the provisions of this act, from constructing, maintaining, and opsrating railroads outside of this State. The persons so associating shall
file à certificate of incorporation which shall set forth: (1) The name of
the corporation, and every such name shall begin “ The ” and end with
11Corporation,” or “ Company,” or have the word “ Incorporated ” imme
diately under or after the name. (2) The name of the town in this State in
which it is to be located. (3) The nature of the business to be transacted.
(4) The amount of the total authorized capital stock of the corporation, which
shall not be less than $2,000; the number of shares into which the same
ahflii h» divided and the par value of each share, which shall not be less
than $9t-, the amount of capital stock with which it will commence busi
ness, which shall not be less than $1,000; and if there be more than one
class of stock created, a description of the different classes with the terms
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
on which they are created. (5) The period, if any, limited for the dura
tion of the corporation. This certificate shall be signed and sworn to by
all of the original incorporators, and filed hy them in the office of the
secretary of State. A certified copy of such certificate shall be filed in the
office of the town clerk in the town in which said corporation is located.
Until the directors are elected the incorporators shall have charge of the
formation of the corporation. Every corporation, before a certificate of
incorporation is approved by the secretary of State, shall pay to the State
treasurer 50 cents on every one thousand of its authorized capital stock,
up to $5,000,000; and it shall pay upon everyone thousand in excess or
$5,000,000,10 cents. The same tax on increase of capital stock. No payment less than $25. No corporation shall commence business until the
amount of capital specified in its certificate of incorporation as the
amount of capital with which it will commence business has been paid
in; nor until its directors and officers have heen duly elected, and its
by-laws adopted; nor until the directors have caused to he filed with the
secretary of State a certificate signed and sworn to by a majority of them
stating: (1) The amount of each class of stock subscribed lor. (2) The
amount paid thereon in cash. (3) The amount paid thereon in property
other than cash. (4) The amount paid on each share of stock which is not
paid for in full. (5) The name, residence, and address of each of the
original subscribers, with the number and class of shares subscribed for
by each. (6> That the directors and officers of the corporation have been
duly elected and its by-laws adopted. (7) The name, residence, and postoffice address of each of the .officers and directors. (8) The location of
its principal office in this State, with the street and number, if any there
be, and the name of the agent or person in charge thereof, upon whom
process against the corporation may be served. This certificate of
organization need not be filed in the town clerk’s office. There shall be
three or more directors who shall be stockholders. They may fill any
vacancy in their board for the unexpired portion of the term. The major
ity of the directors shall constitute a quorum. The directors shall make
detailed report of the financial condition of the corporation to its stock
holders at least once a year. The directors shall elect officers. No
corporation shall issue any stock until the same has been subscribed and
paid for in full. Receipts for partial payments on stock may be issued
by the treasurer and secretary, and the persons tb whom such receipts are
issued shall be deemed to be stockholders. If any stock shall he paid for
otherwise than in cash, the directors shall make and sign upon the com
pany’s record book a statement, showing particularly of what the property
received in payment for stock subscribed consists, and that it has an
actual value equal to the amount for which it is so received. The judg
ment of the directors as to the value of property accepted in payment of
stock shall be final, but the directors concurring in the judgment of such
value, in case of fraud or gross negligence in the over-valuation of such
property, shall be jointly and severally liable to the amount of the differ
ence between the actual value of any property so accepted in payment at
the time of such acceptance and the amount for. which it is received m
payment. It shall be the duty of the secretary to keep a record of the
names of the directors concurring in such judgment in value. Stock
holders are liable to the full par value of their stock. No certificates for
fractions of shares shall be issued. The stock of every corporation shall
be personal property, transferable only on the books of the company.
Every corporation shall at all times have a lien upon all of its stock
owned by any person for all debts due to it from him. A corporation,
except a bank, trust company, or life insurance company, may acquire,
purchase, and hold its own stock. No corporation shall acquire, purchase,
and hold its own stock unless to prevent loss upon a debt previously con
tracted, except with the approval of stockholders owning three fourths of
its entire outstanding capital stock, given at a stockholders’ meetmg
warned and held for the purpose; and such corporation shallnot vote upon
shares of its own stock. No corporation shall purchase any of its own stock
when it is insolvent. Directors assenting are personally liable for debts
contracted, when such purchase is made by corporation when insolvent.
The president and treasurer must make, sign, swear to, and file in the
office of the secretary of State a certificate of the number of shares of its
own stock so acquired within six months. Stockholders’ meetings must
be held in this State after written or printed notice given or mailed to
each stockholder five days before such meeting. The president may call,
upon the written request of stockholders holding one-tenth of the stock,
special stockholders’ meetings. Similar corporations may consolidate.
Directors may make agreement of consolidation which must be approved
by stockholders of each corporation hy a two-thirds vote of all outstand
ing stock of each class. Stockholder objecting to consolidation may
insist on payment to him of the value of his stock. Corporation may be
wound up by voluntary agreement of all stockholders, signed and
acknowledged. Such written agreement of dissolution dispenses with
votes of directors and stockholders. Directors in either event are trus
tees to wind up business. Corporations may apply to court for limitation
of time for presentation of claims. Creditors may apply for receiver
during such voluntary winding up, but he must not attach or otherwise
interfere with control of property by directors as such trustees. Stock
holders owning one-tenth of stock may apply for receiver in case of mis
management, fraud or when assets are in danger of waste by attachment,
or when corporation has abandoned its business. The president and
treasurer of every corporation having capital stock, except banks, trust
companies, insurance and surety companies, railroad or street railway
companies, express companies, building and loan associations and
investment companies, shall, annually, on or before the fifteenth day of
February or August, make, sign and swear to and file in the office of the
secretary of State a certificate setting forth as of the first day of January
or July immediately preceding: (1) The name, residence and post-office
address of each of its officers and directors; (2) The amount of its out
standing capital stock which has not been paid for in full, with the
amount due thereon; (3) The location of its principal office in this State,
with the street and number, if any there he, and the name of the agent or
person in charge thereof upon whom process against the corporation may
be served. The secretary shall thereupon record such certificate in a book
kept by him for that purpose, and shall furnish a certified copy of such
certificate to the persons filing the same^who shall forthwith cause such
certified copy to be recorded in the office of the town clerk of the town
in which such corporation is located, and said town clerk shall record the
same in a book kept by him for that purpose. On the fifteenth day of
March and September the town clerks of the several towns shall report to
the secretary of State tne names of all corporations whose annual returns
have been filed for record during the preceding six months, in accordance
with the provisions of this section, and the secretary shall report to the
attorney-general, every six months, the names of all corporations which
have failed to comply with the provisions of this section, and the attor
ney-general shall collect all forfeitures due under this section. Every
corporation whose officers i-hall fail to comply with the requirements oi
this section shall forfeit to the State one hundred-dollars for each failure.
Costs.
than $5;
involved;
than $25;
For case before justice of the peace, actual cash costs not less
before city court from $5 to $25, according to amount
before court of common pleas or superior court, not less
before supreme court of errors, not less than $50. Attorney s
B A N K IN G A N D C O M M E R C IA L L A W S —C O N N E C T IC U T .
fees not included. Attorney justified in asking deposit of $15 for
case in justice’s court and $50 in any other court before bringing suit.
(See Insurance Companies, Injunctions, etc.)
C ourts. Terms and Jurisdiction. Superior court holds one term
per year in each county for the trial of civil causes, and has jurisdiction
in all law and equity cases exceeding $500, and exceeding $100 in those
counties where there are no courts of common- pleas. Court of com
mon pleas In Hartford, Fairfield, New London, and New Haven coun
ties, has exclusive law and equity jurisdiction above $100 and below
$500, and concurrent jurisdiction with the superior court above $500 and
up to $1,000, and in Litchfield County has exclusive jurisdiction up to
$1,000. Not less than four terms each year are held in each of the coun
ties named, and there are city courts in many of the cities, and a district
court at Waterbury, with limited civil jurisdiction; also town courts in
many of the towns. Probate courts have jurisdiction of the settlement
of tfm estates of deceased, insolvent, and incompetent persons, and are
established in a large number of probate districts — one for each dis
trict. Justices of the peace have civil jurisdiction up to $100. In New
Haven and Hartford jurisdiction of justice of the peace has been trans
ferred to city court, except in cases of summary process and bastardy.
Days of G race. (See Notes and Bills of Exchange.)
Deeds. (See Conveyances.)
Depositions may be taken in a civil action by a judge or clerk ol any
court, justice of the peace, notary public, or commissioner oi the supe
rior court, when witness lives out of the State, or more than twenty miles
from place of trial, is over sixty years of age and unable to attend the
trial, is going to sea, or out ot the State, or by age and infirmity is unable
to travel to court, or is confined in jail. Reasonable notice must be
given to adverse party. Deponents must be cautioned to speak the whole
truth, and carefully examined. They must subscribe their depositions
and make oath before the authority taking the same, who shall attest the
same and certify that the adverse party or his agent was present (if so), or
that he was notified, and shall also certify the reason of taking such deposi
tion, seal it up, direct it to the court where it is to be used, and deliver it,
if desired, to the party at whose request it was taken. Depositions may
be taken in any other State or country by a notary public, commissioner
appointed by the governor of this State, or by any magistrate having
power to administer oaths, and they may also be taken before a foreign
minister, secretary of legation, consul, or vice-consul appointed by the
United States, if taken out of the United States. A judge of the supe
rior, common pleas, or district court can issue a “ commission” to take
the deposition of a person residing out of this State, to be used in a cause
pending before such court. The superior court, upon petition, may allow
depositions to be taken to perpetuate testimony concerning that which
may thereafter be the subject of a suit. The person taking depositions
may compel attendance of witnesses by subpoena and capias.
Descent and D istribu tio n of P ro p e rty in In testate Estates.
(As to the share of a surviving husband or wife, seethe title Husband
and Wife.) After the share of the surviving husband or wife, the resi
due of the real or personal estate is distributed in equal proportions
among the children and the legal representatives of any of them who
may be dead (children who have received estate by advancement of the
intestate in his lifetime being charged with the same in the distribu
tion) . Children bom before marriage, whose parents afterward inter
marry and recognize them as their own, shall be deemed legitimate and
inherit equally with other children. If there be no children or legal rep
resentatives thereof, such residue shall be distributed to the parent or
parents, then equally to the brothers and sisters of the intestate of the
whole blood, and those who legally represent them ; and if there
be no such kindred, then equally to the brothers and sisters of the
half blood and those who legally represent them: and if none, then
equally to the next of kin in equal degree, kindred of the whole blood to
take in preference to kindred of the half blood, in equal degree, and no
representatives to be admitted among collaterals after the representatives
of brothers and sisters.
D ivorce. Divorces are granted by the superior court exclusively, and
fox the following causes, viz.: Adultery, fraudulent contract, willful de
sertion for three years, with total neglect of d u ty ; seven years’ absence
during all which period the absent party has not been heard from; habit
ual intemperance; intolerable cruelty; sentence to imprisonment for
life, or any infamous crime involving a violation of conjugal duty, and
punishable by imprisonment in the State prison. Uncontested divorce
cases cannot be heard until ninety days from the return day. The plain
tiff must have continuously resided in the State three years next before
date of the complaint, unless the cause arose subsequently to removal
into this State, or unless defendant has resided in the State and has been
personally served with the process, or unless the alleged cause is habit
ual intemperance or intolerable cruelty, and the plaintiff was domiciled
m this State at the time of the marriage, and before bringing the com
plaint has returned to this State with the intention of permanently
remaining. Custody of the children maybe assigned by the court to
either party, and alimony, not exceeding one-third the husband’s estate,
may be assigned to the wife, and the court has power to order alimony
pendente life, to be paid to the wife upon such terms and conditions as
it may find advisable. Marriages void for any cause may be declared
void and a nullity by the superior court.
Dower. (See Husband and Wife.)
E vidence. (See Courts, Insurance Company, Corporations.)
E x ec u tio n s issue on final judgment, and are returnable within sixty
days. No execution issued in an action founded on contract merely
can be levied on the body of the debtor except for breach of promise of
marriage, misconduct or neglect in office or professional employment,
°£ i)reach °f trust. Any judgment debtor, an execution against whom
shall have been returned unsatisfied in whole or in part, may be exam
ined on oath touching his property and means of paying such judgment,
and may be committed for contempt. (See Exemptions.)
E x e m p tio n s. Homestead, to the value of $1,000, if declaration to
hold it as such is recorded. Of the property of any one person, his
necessary apparel and bedding and household furniture necessary for
supporting life; any pension moneys received from the United States
while in the hands of the pensioner (which has been construed to cover
also such pension money when deposited in a savings bank); implements
of the debtor’s trade, his library not exceeding $500 in value; sundry do
mestic animals not exceeding $150 in value; so much of any debt
which has accrued by reason of the personal services of the debtor as
shall not exceed $25, including wages due for the personal services of
any minor child (but there shall be no exemption of any debt accrued
by reason of the personal services of the defendant against the claim for
the defendant’s personal board); of the property of any one person hav
ing wife or family, two tons of coal, specified amounts of food-stuffs; the
horse of any physician or surgeon not exceeding $200 in value, and his
saddle, bridle, harness, and buggy, also his bicycle; one boat owned by
one person, with rigging, tackle, etc., not exceeding $200 in value, used for
76
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1193
planting or taking oysters or clams or taking shad; one sewing machine
being property of any one person using it, or having a family; one pew
being property of any person having family who ordinarily occupy it, and
lots m any burying ground; and all benefits allowed by any association
of persons in this State toward the support of its members, incapac
itated by sickness or infirmity, shall be exempted from foreign
attachment or execution.
F o re ig n A tta c h m e n ts. Goods concealed in the hands of agents or
debts due the defendant are reached by foreign attachment which takes
the place of garnishment. No assignment of future earnings will pre
vent their attachment when earned unless made to secure a bona fide
debt, due at the date of such assignment, the amount of which shall be
stated therein as nearly as possible, nor unless the term for which they
are assigned shall be definitely limited in the assignment, nor unless
recorded before such attachment in the town clerk’s office in the town
where the assignor resides, or if he resides without the State, in the town
where the employer resides, and a copy left with the employer. (See
also Exemptions.)
F o re ig n C o rp o ra tio n s. Section 80.— Unless otherwise expressly
provided, the term “foreign corporation” shall mean every corporation
not organized under the laws of this State Section 81.—Any foreign
corporation may purchase, hold, mortgage, lease, sell, and convey real
personal estate in this State for its lawful uset and purposes, and such
real estate and other property as it may acquire, bv way of foreclosure or
otherwise, in payments of debts due such corporation; but no foreign
corporation belonging to any of the classes engaged in the transaction
of any kind of business not permitted to domestic corporations by the
laws of this State, shall engage iu or continue, in this State, f-e business
authorized by its charter or the laws of the State under which it was
organized, unless empowered so to eo by some general or special law of
this State, excent for the purpose of carrying out and renewing existing
contracts heretofore made. Sec. 82 — Every foreign corporation,
except insurance and surety companies and building and loan associa
tions, shall, before transacting business in this State, file in the office of
the secretary of the state a certified copy of its charter or certificate of
incorporation, together with a statement, signed and sworn to by its
president, treasurer, and a majority of its directors, showing the amount
of its authorized capital stock and the amount thereof which has been
paid in, and, if any part of such payment has been made otherwise than
m cash, such statement shall set forth theparticulars thereof. Sec. 83.—
Every foreign corporation with an office or place of business in this
State, except insurance companies, surety companies, and building and
loan associations, shall, before doing business in this State, appoint >n
writing the secretary of the state and his successors in office to be its
attorney, upon whom all process in any action or proceeding against it
may be ferved; and in such wridng such corporation shall agree that any
process against, it which is served on such secretary shall be of the same
legal force and validity as if served on the corporation, and that such
appoint'! ent shall continue in force as long as any liability remains out
standing against the corporation in this State. Such written appoint
ment shall be acknowledged before so ue officer authorized to take
acknowledgments of deeds and shall be filed in the office of said
secretary, and copies certified by him shall be snffleient evidence of such
appointment and agreement. Service upon said attorney shall be suf
ficient service upon the principal, and may be made by leaving a duly
attested copy of the process with the secretary of the state or at his office.
Sec. 84—When legal process against any corporation mentioned in
Section 83 of this act is served upon the secretarv of state, he shall
immediately notify the corporation thereof by mail, and shall, within
two days afrer such service, forward iu the same manner a co y of the
procers served upon him to such corporation, or to any person designated
by i-uch corporation in writing. The plaintiff in the process so served
shall pay said secretary at the time of such serv ce a fee <f twenty-five
cents for each page of process, t-aid fee in no case to be less than two
dollars, which shall be recovered by him as paH of his taxable costs if he
shall prevail in the s u it, Said secretary shall keep a record of all
process served upon him, which shall show the day and hour when such
service was made. Sec. 85.—Every officer of a foreign corporation
transacting business in this State which fails to comply with the
requirements of Sections 82 ano 8S of this act, and every person who
transacts business in this State as the agent of such delinquent corpora
tion, shall be fined not more than one thousand dollars; but such failure
shall not affect the validity of any contract by or with such corporation.
The secretary of the state shall report such failure to the attorney-,
general, who shall thereupon institute proceedings against such corpora
tion to restrain its further prosecution of business in this State. Sec. 86.
—Every foreign corporation doing business in this State shall, within
thirty days after an increase or reduction ot its capital stock, file in the
office of the secretary of the state a certificate substantially like that
required of domestic corpirations organ zed under the like conditions.
Sec 87.—The president and treasurer of every foreign corporation doing
business in this State, which is not required by law to make other annual
return in this State, shall, annually, on or before the fifteenth day of
February or August, make, sign, and swear to and file in the office of the
secretary of the state a certificate similar to the certificate required of
domestic corporations (See “ Corporations'), except that such certificate
need not give the name of the agent or person in charge of its principal
office upon whom process against the corporation may be served The
secretary shall thereupon record such certificate in a book kept by him
for that purpose and shall furnish a certified copy to be recorded in the
office of the town clerk of the town in this State in which such corpora
tion has its principal office or place of business, and said town clerk shall
record the same in a book kept by him for that purpose. On the
fifteenth day of March and September the town clerks of the several towns
shall report to the secretary of the state the names of all corporations
whose annual reports have been filed for record during the preceding six
months, in accordance witn the provisions of this section, and the
secretary shall report to the attorney-general every six months the names
of all corporations which have failed to comply with the provisions of this
section, and the att( rney-general shall collect all forfeitures due under
this section. Every corpora’ion whose officers shall f ol to comply with
the requirements of this section shall forfeit to the State one hundred
dollars for each failure. Sec.. 88—All penalties and liabilities which
are imposed by the laws of this State upon officers, directors, and stock
holders of domestic c rporations for false and fraudulent statements and
returns, shall apply to the office's, directors, and stockholders of foreign
corporations doing business in this' State.
F o re ig n J u d g m e n ts . Not conclusive on question of jurisdiction.
A foreign judgment when used byway of defense, is as conclusive, to
every intent, as those of our own courts. In an action on a judgment ren
dered in another State, evidence on the part of the defendant that he had
no legal notice of the suit and did not appear, is admissible, although the
record of the judgment stated that the defendant appeared by his attorney.
Where the foreign court has a peculiar and exclusive jurisdiction, its
decree is binding upon the judgment of any other court, into which the
1194
B A N K IN G A N D C O M M E R C IA L L A W S — C O N N E C T IC U T .
same subject comes immediately into controversy. The decision of a court
of competent jurisdiction is conclusive upon the parties as to the title
claimed under it and as to the facts directly put in issue and determined;
so that such title or facts can not be again contested between the same
parties, in the same court or any other. No greater effect is to be given to
a foreign judgment in Connecticut than it would have in the State where
it was rendered. A judgment rendered by a court in one State has no
efficacy when it is sought to be enforced in Connecticut, unless such court
had jurisdiction of the person against whom it is rendered, acquired either
by service upon him of the process in the suit, or actual notice to him of
the suit, or at least by his having appeared in it, and thus submitting to
the jurisdiction of the court. Jurisdiction presumed to have been properly
exercised, if court once had jurisdiction. Notice presumed of resumption
of jurisdiction if required by practice in foreign court. A judgment
recovered in a sister State is a bar to the further prosecution of an action
pending at the time in this State between the same parties on the same
cause of action. It makes no difference that tbe judgment of the sister
State has been appealed from, and that the appeal is still pending, where,
by the laws of that State, such appeal operates only as a proceeding in
error, and does not supersede the j udgment. Only such pleas are plead
able to a foreign judgment, as are pleadable where rendered.
F ra u d . All fraudulent conveyances, suits, judgments, executions, or
contracts, made or contrived with intent to avoid any debt or duty
belonging to others, shall, notwithstanding any pretended consideration
therefor, be void against those persons only, their heirs, executors,
administrators, or assigns, to whom such debt or duty belongs.
G arn ish m e n t. {See Foreign Attachments.)
G u a ra n ty C om panies. Bonds of surety companies chartered by
this State or authorized to do business therein, may be accepted in civil
actions and proceedings instituted under the statutes. Every guaranty
company organized under the laws of this State is under the supervision
of the bank commissioner and subject to all the laws relating to the exam
ination and report of banks, savings banks, and trust companies, and the
said commissioner, in a separate annual report of these corporations, must
clearly describe the various classes of assets and liabilities of each and
state any special provision which has been made for the payment of such
liabilities. No guaranty company is permitted to guarantee, by endorse
ment or otherwise, debenture bonds secured by loans upon real estate to an
amount exceeding ten times the amount of the capital stock and surplus
actually paid in, in cash, of said corporation or company. Guarantee com
panies must procure license from the insurance commissioner.
H o lid ays. (See Notes and Bills of Exchange.)
H u sband and W ife. In all marriages contracted after April 19.
1877, neither husband nor wife acquires by force of the marriage any
right to or interest in any property held by the other before the mar
riage or acquired after the marriage, except as to the share of the sur
vivor in the property of the other as hereinafter stated. Wife married
subsequent to April 19,1877, may hold and convey real estate separate
from her husband. Separate earnings of the wife are her sole property.
On the death of the husband or wife, the survivor shall be entitled to the
use for life of one-third in value of all the property, real or personal,
owned by the other at the time of his or her decease, after the pay
ment 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 sur
vivor shall take such third absolutely, and ifthere are no children, shall
take all of the estate of the decedent absolutely to the extent of $2,000,
and one-half absolutely of the remainder of said estate. Husband and
wife married prior to April 20,1877, may file acceptance of provisions of
act of 1877. In marriages contracted prior to April 20,1877, the husband
must join wife in all conveyances of her estate. Dower exists only in
real estate of which the husband was seized at his death. The wife is
also entitled absolutely to one-third (or if the deceased left no children
or legal representatives thereof, one-half) of the personal property of a
deceased husband who dies intestate. The husband acquires a right to
the use of all the land of his wife during her life, and if he has a child by
her, and survives her, then during his own life as tenant by curtesy.
In ju n c tio n s . Any judge of any court of equitable jurisdiction may,
on motion, grant and enforce writs of injunction, which shall be of force
until the sitting of such <ourt and its further order therein, unless sooner
dissolved. Superior court judge may dissolve temporary injunction
granted by other court. All facts stated in application for injunction must
be verified by oath. Plaintiff must give bond with satisfactory surety,
to answer all damages in case ol failure to prosecute to effect, before tem
porary injunction can be issued, unless the court shall be of opinion that
temporary injunction ought to issue without bond. Injunctions may be
granted forthwith, if the circumstances of the case demand it; or the court
or judge may cause immediate notice oi the application to be given to the
adverse party, that he may show cause why such injunction should not be
granted; and it shall be sufficient, on such application fo ra temporary
injunction, to present to the court or judge the original complaint contain
ing the demand for an injunction, duly verified, without further complaint,
application, or motion in writing. Injunction may be granted against
malicious erection of structure on one’s land; for abatement or discontin
uance of nuisance by manufacturer. No temporary injunction shall be
issued against any person or corporation engaged in the business of manu
facturing oil, manure, or phosphates from fish, to restrain or prevent the
further prosecution of such business unless written notice, stating partic
ulars, be left with defendant twenty-four hours before proposed hearing.
Whenever a temporary injunction is granted in any cause before the
return day thereof, it may be dissolved or modified by the court or judge
who issued it, by any judge of the court to which the action is return
able, or by any judge of the superior court; provided a written motion
for such dissolution shall be prepared before the return day. After the
return day such motion must be returned to the court in which the
action is pending, or if such court is not actually in session, to a judge
thereof; but in case of the inability of such court or judge, from any
cause, to hear such motion, it shall be heard and determined by the
superior court or by any judge thereof. Any person who may be
directly or indirectly interested in, or affected by the granting of any
temporary or permanent injunction, may appear and be heard with
regard to granting or dissolving the same. When in any action a tem
porary injunction has been granted, and upon final hearing judgment shall
be rendered adverse to the continuance of such injunction, either party
may apply to the court rendering such judgment, representing that he is
desirous of taking the case to the supreme court of errors, and praying that
said temporary inj unction may be continued until the final decision therein;
and unless said court sball be of opinion that great and irreparable injury
•will be done by the further continuance of said injunction, or that said
application is made for delay and not in good iaith, it shall be the duty of
the court to continue said injunction until a final decision be rendered in
the supreme court of errors. When in any^ action judgment shall be ren
dered for a permanent injunction ordering either party to perform any act,
upon similar application to that above mentioned, a stay of operation of
such injunction, pending final decision of supreme court of errors, may
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
be granted for similar reasons. The court in which such case is pending
may, however, if in its opinion the cause of j ustice shall so require, dissolve
said temporary injunction or remove the stay of said permanent injunction
while said cause is so pending in the supreme court of errors.
In solvency. Suspended except as to voluntary assignments in insol
vency by corporations, owing to United States Bankruptcy Act.
In te re st. Legal rate, in absence of express agreement, 6 per cent;
no more than 6 per cent can be recovered in either case after debt be
comes payable; no usury laws. Any person who shall loan money upon
a note secured by mortgage on personal property, in which the sum of
money loaned is stated to be greater than the amount actually loaned, or
in which the rate of interest to be charged is greater than the rate allowed
by law to be charged by pawnbrokers (25 per cent per annum), shall be
punished by fine and imprisonment, and the mortgage and note secured
thereby shall be null and void.
Ju d g m e n ts carry 6 per cent interest, but are not liens,, and execu
tion may be had at any time during the life of both parties. Judgment
by default may be obtained if the defendant makes no appearance on
return dftv. Plaintiff may put motion for disclosure of defense on
short calendar immediately after return day, where there is an appear
ance, or if the defendant’s counsel in open court is unable to state that
he has a defense, court will order judgment for plaintiff. Certificate of
judgment may be recorded by judgment creditor or his assignee intown
clerk’s office, and such judgment from the time of filing such certfficate
shall constitute a lien upon the real estate described in such 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
judgment 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.
Ju risd ictio n . (See Courts.)
Licen ses. Auctioneers must have licenses, in towns from selectmen,
in cities and boroughs from proper officers. Penalty for acting without
license, fine of not more than $50, or imprisonment not more than sixty
days, or both. Proper officers of city or borough, or selectmen of town,
may license and regulate any exhibitions therein, but selectmen shall not
license any such exhibition within the limits of city or borough. Select
men of any town or chief of police in any city may grant licenses to suit
able persons to be dealers and traders in second-hand bicycles, junk, old
metals, and other second-hand articles, in such town or city respectively,
which may be revoked for cause. Fee not more than $10 and not less than
$2. Such dealer must keep record of transactions and make weekly state
ments under penalty of $100 or less. Penalty for selling without license,
fine $100 or less, or six months imprisonment or less. Licenses to pawn
brokers issued in same manner; fee $50. Bond of $2,000 required.
Pawnbrokers must keep record of pledges and make weekly statements.
Pawnbrokers and loan brokers, and all persons who loan money on the
pledge of personal property, are prohioited from taking or receiving
directly or indirectly, for use of money loaned on personal property,
any more than tbe following rates: For the use of money amounting
10 $15 or under, five per centum per month or fraction thereof; for the
use of money exceeding $15 in amount and not exceeding $o0 in
amount, three per cen um per month or fraction thereof; for the use
of money exceeding $50 two per centum per month or fraction thereol.
Pledges can not be sold in less than six months. Pharmacists must be
licensed. License for sale of liquors issued by county commissioners. Mas' er
plumbers licensed by proper officers of city, borough, or town. Pilots licens
ed by superior court. Persons manufacturing, selling, or dealing in any
material or compound more explosive than gunpowder must have license
from selectmen ($5 per year), and no person can use, procure, or transport
such explosive without written permission (25 cento) from town clerk or
selectmen. Itinerant vendors must have State and_ local license. Words
“itinerant vendor” include all persons, both principals and agents,
who engage in a temporary or transient business in this ¡state,
either in one locality or in traveling from place to place, selling
goods, wares, and merchandise, and who for the purpose of carry
ing on such business, hire, lease, or occupy any building or structure
for the exhibition and sale of such goods, wares, and merchandise.
No itinerant vendor shall be relieved or exempted from the
provisions and requirements of this act by reason of associating himseii
temporarily with any local dealer, auctioneer, trader, or merchant, or by
conducting such temporary or transient business in connection with,
or in the name of any local dealer, auctioneer, trader, or merchant. These
provisions do not apply to sales made to dealers by commercial travelers
or selling agents in the usual course of business, nor to bona /tae sales ot
goods by samples for future delivery, nor to hawkers on the street or ped
dlers from vehicles. Itinerant vendors must deposit with treasurer oi
State $500 and pay to State license fee of $100 per year. Applications for
State license must be sworn to. Itinerant vendors must exhibit State
license to proper officer of town, pay $25, have State license mdorsed.and
receive local license before doing any business. Sworn statement to State
treasurer required before holding special sale of bankrupt s, etc., goods.
Maximum penalty for selling without license $50 and sixty days, or both.
State deposit to be surrendered sixty days after cancelation of State license.
State treasurer subject to garnishee process in actions against itinerant ven
dors. Dentists must have)::censes. Lodging houses which are patronized by
roving or transient persons to whom beds or rooms are furnished at prices
less than 50 cents a night and containing accommodations for not less than
five persons, must be licensed by proper officer of city, borough, or town.
Fee $10 per annum. Maximum penalty for violation, $100. Barbers,
osteopathists, maternity hospitals, surety companies, must be licensed.
L ie n s. (Mechanics’ Liens.) Mechanics’ liens for labor or materials
furnished in the construction or repair of any building may he fiiea Dj
original contractor within sixty days after completion of work; but sudcontractor must serve owner of building with notice of his intention to
claim a lien within sixty days after he shall have commenced to furnish
materials or render services. Mechanics1liens are foreclosed same as
estate mortgages. Unless foreclosure is instituted, liens expire two years
after filing. {For Judgment Liens, see Judgments.)
L im ita tio n s to Suits. Open accounts and contracts not under
seal, six years; contracts under seal and promissory notes not negoti
able, seventeen years. Usual exceptions in favor oi married wmnen,
minors, lunatics, and those imprisoned. The time during which the
party against whom there may be such cause of action shall be without
the State shall be excluded from the computation. Title to real estate Dy
adverse possession may be gained in fifteen years.
L im ite d P a rtn e rsh ip s. Such partnerships (except bankingandinsurance) shall consist of one or more partners, jointly and severally respon
sible, as in ordinary cases, to be called general partners; and one or more
partners, furnishing capital to the partnership stock, whose liability sh
not extend beyond the capital so furnished by them, to be called SP®
partners. Such partnerships shall be conducted under a company name,
in which the name of one or more of the general partners shall appear; ana
if any special partner’s name shall be used in said company name, he snai
B A N K IN G A N D C O M M E R C IA L L A W S — C O N N E C T IC U T .
be held liable as a general partner. No such partnership shall be deemed
to be formed until the persons forming it shall make, and severally sign
and acknowledge before any officer authorized to take the acknowledg
ment of deeds, a certificate stating the company name and names and resi
dences of all the partners, designating which are general and which are
special partners, and which of the general partners are authorized to trans
act the partnership business and sign the firm name, and also the amount
of capital furnished by each special partner and the time at which the part
nership is to commence and terminate; nor until such certificate, and also
a certificate of the amount actually paid in by each special partner, signed
and sworn to by such of the general partners as are authorized to transact
the partnership business, shall be filed and recorded in the office of the
town clerk of the town where the principal business of the partnership is
to be carried on; and a copy of such certificate shall be prima fa d e evi
dence of the matters therein contained; and the partnership shall be re
sponsible only for the acts of the general partners designated as specially
authorized as aforesaid; and copies of said certificate shall, in like manner,
be filed in every town where such partnership may have a place of business.
Terms of such partnership must be published for six weeks, in newspaper
published in county where business is to be carried on. Any such part
nership may he renewed by filing at any time before its expiration, with
the town clerk, a sworn certificate of the general partners, setting forth the
time for which said renewal is made, whether the special capital has been
reduced or impaired since the last certificate filed by said partnership, and
if so, to what amount, and by publishing not less than once a week for two
weeks in a newspaper published in county, the time at which the said re
newed partnership is to commence and terminate, signed by the partners
thereto, and specifying which are general and which are special partners.
If the requirements concerning original certificate are not complied with,
or false certificate be made, all special partners shall be liable as general
partners. All advancements to the capital stock by the special partners
shall be in cash and no part of the capital furnished by them shall be with
drawn, either in the shape of dividends, profits or otherwise, at any time
while such partnership continues: except that any special partner may
lawfully be paid from the assets of such partnership, each year during the
continuance thereof, a sum not exceeding 10 per centum upon the cash
contributed by him to the capital stock; provided that such payment shall
only be made out of the net profits actually earned by such partnerships,
during the year for which such payment is made. No special partner
shall under any circumstances be considered a creditor, or allowed to claim
as a creditor. No special partner shall be joined as a party in any action by
or against such partnership unless liable as a general partner.
M a rried W o m e n . (See Husband and Wife.)
M ortgages of real estate are executed, acknowledged, and recorded
in the same manner as deeds, and are foreclosed by strict foreclosure
or by a decree of sale. The equity of redemption exists for a limited
time fixed by the court (usually from two to six months). Chattel mort
gages to be good against third parties, where the mortgagor retains
possession, must be executed, acknowledged, and recorded as mortgages
of land, and can only be made of the following described personal
property—with or without the real estate in which the same is situated
or used—namely: machinery, engines, or implements situated and used
many manufacturing or mechanical establishment; machinery, engines,
implements, cases, types, cuts, or plates situated and used in any print
ing, publishing, or engraving establishment; household furniture in a
dwelling house used by the owner therein in housekeeping; hay and
tobacco in the leaf in any building. Piano, organ, melodeon, and any
musical instrument used by an orchestra or band. Brick, burned or
nnbumed, in any kiln or brickyard. Hotel keepers may mortgage the
furniture, fixtures, and other personal chattels contained and used in the
hotels occupied by them or employed in connection therewith. Chattel
mortgages are foreclosed by sale under order of court. When personal
property is mortgaged with real estate such mortgage may be foreclosed
as if wholly of real estate. In all chattel mortgages there must be a par
ticular description of each article of personal property. Judgment for
deficiency after sale, permitted. Such sum in excess of 10 per cent per
annum as is paid for interest shall be applied as payment on account of
the principal debt and shall be deducted therefrom.
N o ta rie s P u b lic hold office for two years from first day of Feb
ruary of year in which commissioned, unless commission is sooner revoked
by Governor. May exercise their lunction at any place in State. May
take acknowledgments, administer oath, take deposition, subpoena wit
nesses to give deposition. The authority and official acts of any notary
may be certified to by the clerk of the superior court of the county in
which he resides, except in New London County, where the certification
is made by the clerk of the courtof common pleas. In 1901 the legislature
passed an act validating all ministerial acts previously done by any notary
after the termination o f his office or outside of the local limits of his j urisdiction, if otherwise legal.
.N o tes a n d B ills o f E x c h a n g e . Negotiable Instruments Act
now in force. 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 negotiable notes be made payable at a
bank or any fixed place in the State, unless so stipulated in the note.
No days of grace on any paper dated on or after July 1, 1895, unless
specified. A negotiable promissory note payable on demand is re
garded as dishonored if unpaid four months after date, but where a
note is payable at a stated time after demand, the four months do not
begin to run until an actual demand has been made. Demand and reas
onable notice are necessary to bind indorsers. Notes or bills falling
due upon Sunday or any holiday, to wit, 1st of January, February 12tn
(Lincoln Day), 22d of February, 30th of May, 4th of July, December
25th, 1st Monday of September (known as Labor Day), Thanksgiving, or
fast days, are payable on the next succeeding business day. Instru
ments falling due on Saturday are to be presented for payment on the
next succeeding business clay, except that instruments payable on
demand may at the option of the holder be presentedfor payment before
twelve o’clock noon Saturday when that entire day is not a holiday.
P a w n B ro k e rs . (See Licenses.)
P o w ers o f A tto rn e y . Where a deed is executed by a power of
attorney it is recorded with the deed. Powers of attorney to convey
real estate must be executed and acknowledged in the manner required
for the execution and acknowledgment of the conveyance itself.
P riv a te B a n k s. (See end of State Banks and Trust Companies.)
P ro b a te L aw . (See Administration of Estates, Appeals, Assign
ments and Insolvency, Collateral Inheritance Tax, Courts, Descent and
Distribution o f Property, Husband and Wife, and Wills.)
P ro te st. (See Notes and Bills o f Exchange.)
R ecords. Warranty, mortgage, quitclaim deeds must be recorded in
office of town clerk in town where land lies, also assignments of mortgage,
conditional bills of sale, chattel mortgages, assignments of future earnings.
Certificate of trade-mark to be filed for record in office of secretary of
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1195
state. Certificate of unsatisfied judgment to be filed for record in town
clerk’s office. (See Conveyances, Insurance Companies, Limited Part
nerships, Judgments, etc.)
R e d e m p tio n . (See Mortgages.)
R e p le v y . Replevin lies for goods wrongfully detained, in which the
plaintiff has a general or special property with right to immediate pos
session. A writ of replevin can not issue except upon an affidavit in which
the affiant states the true value of the goods to be replevied, and that he
believes that the plaintiff is entitled to the immediate possession of the
same, nor until the plaintiff furnishes a bond with sufficient surety in a
sum double the value of the property.
Sales by R e ta il D e ale rs. When any person who makes it his
business to buy commodities and sell the same in small quantities for
the purpose of making a profit, shall at a single transaction not in the
regular course of business, sell, assign, or deliver the whole, or a large
part of his stock in trade, such sale shall be void as against all persons
who are his creditors at the time of such sale, assignment or delivery,
unless he shall not less than seven days nor more than thirty days pre
vious to such sale, assignment or delivery, caused to be recorded* in the
town clerk’s office in the town in which said vendor conducts his said
business, a notice of his intention to make such sale, assignment, or
delivery, which notice shall be in writing, describing in general terms
the property to be sold, assigned, or delivered, and all conditions of
such sale, assignment or delivery, and the parties thereto; and said
notice shall be signed by such person or in^his name by his attorney.
S ervice. Service of a writ of summons in case of a resident is made
by reading it and the complaint accompanying it in the defendant’s hear
ing, or by leaving an attested copy in the defendant’s hands or at his usual
place of abode; in case of a non-resident, the several courts, other than
courts of probate, and the judges, clerks, and assistant clerks thereof, or
any county commissioner, in term time or in vacation, may, except where
it is otherwise specially provided by law, make such orders as may be
deemed reasonable, in regard to the notice which shall be given of the
institution or pendency of all complaints, writs of error and appeal from
probate, which may be brought to or pending in any court, when the
adverse party, or any person so interested therein, that they ought to be
made parties thereto, reside out of the State, or when the names or resi
dences of any such persons in interest are unknown to the party instituting
the proceeding; and such notice having been given and proved shall be
deemed sufficient service and notice.
S ta te B a n k s a n d T ru st C om panies. Every State hank and trust
company shall at all times maintain a reserve fund of 15 per centum of its
aggregate deposits. Of this reserve fund not less than four-fifteenths shall
consist of gold and silver coin, the demand obligations of the United States,
or national bank currency, and be held by such bank or trust company in
its banking office. The remainder of said reserve fund may consist of bal
ances subject to.demand draft with reserve agents, and of railroad bonds
which are legal investments for the savings banks of this State, provided,
that said reserve agents shall be banks which are members of the clearing
house associations of New York. Boston, Philadelphia, Chicago, or Albany
or State banks or trust companies located in New Haven or Hartford, and
in each instance approved by the hank commissioners; and provided, that
said railroad bonds, held as part of said reserve, shall at no time exceed at
par value one-fifth of the total reserve fund. Whenever the reserve fund
of any State hank or trust company shall be below 15 per centum, such bank
or trust company shall not make any new loans or discounts, or make any
dividends of its profits, until its reserve fund is restored to the required
15 per centum. The hank commissioners shall notify any State bank or
trust company whose reserve fund shall fall below 15 per centum, and if
said bank or trust company shall fail for thirty days thereafter to make
good such reserve fund, the bank commissioners may apply for the appoint
ment of a receiver to wind up its business. No State bank or trust com
pany shall make any loan or discount on a pledge of its own stock, nor
establish any branch office, or agency thereof, nor employ any agent or
person to make loans or. discounts at any other place than the banking
house. The total liabilities to any State bank or trust company of any
person or of any company, corporation, or firm, for money borrowed,
including in the liabilities of a company or firm the liabilities of the sev
eral'members thereof, shall at no time exceed 10 per centum of the amount
of the capital stock of such hank or trust company actually paid in and its
surplus and.undivided profits combined; and the provisions of all State
bank or trust company charters inconsistent herewith are berebyrepealed.
The provisions of this section shall not apply to loans secured by collateral,
so long as the market value of such collateral shall exceed by 20 per centum
the total liabilities secured in each case by such collateral, but no loan on
collateral shall at any time exceed 20 per centum of the amount of tbe
capital stock of such bank or trust company actually paid in and its sur
plus and undivided profits combined, and the total loans to any one person,
company, corporation, or firm, including in the liabilities of the company
or firm the liabilities of the several members thereof,' shall at no time
exceed 20 per centum of the capital, surplus, and undivided profits com
bined of said bank or trust company. Every State bank or trust company
which shall violate the provisions of this section shall forfeit $3,000 to
the State for each offense. No State bank or trust company shall dis
count any paper made, accepted, or indorsed by any of its executive
officers or clerks, or by any partnership of which any of such officers or
clerks are members. When the loans and discounts of any State bank
or trust company to parties in this State shall, in the aggregate, amount to
one-half of its capital stock, it may loan to parties out of this State, and
not otherwise. The commissioner of the school fund may at any time
examine the books and accounts of any State bank or tfust company in
which there is stock belonging to the school fund; and the treasurer of the
State shall have the same right, in case of stock in any State bank or trust
company owned by the State. The stockholders of any State bank or trust
company, at the annual meeting, or at any special meeting, which any
five stockholders, owning not less in all than one hundred shares of stock,
are authorized to call for that purpose, may examine the hooks, accounts,
securities, and expenditures of such State bank or trust company. No per
son shall vote on stock at a meeting of the stockholders of any State bank
or trust company if said stock has been transferred to such bank or trust
company or to any person in trust for such State bank or trust company,
except in cases where said hank or trust company shall hold sucb stock as
guardian, conservator, administrator, executor, or trustee under a will or of
an express trust. Any person who shall vote in violation of this section
shall be disqualified from holding any office in such bank or trust company
for one year thereafter. When at any meeting the right of any person to
vote on any stock is denied, he shall not be permitted to vote until he has
lodged with the presiding officer of said meeting his affidavit, stating his
interest in said stock and also the character and amount of the interest, if
any, owned by any other person therein. The commissioner of the school
fund may vote upon the stock of any State bank or trust company which
belongs to said fund, and the treasurer Of the State may vote upon the
stock of any State bank or trust company which belongs to tbe State.
Three-fourths of the number of directors of any State bank or of tbe
trustees or directors of any trust company shall be residents of this State.
1196
B A N K IN G A N D C O M M E R C IA L L A W S — D E L A W A R E .
No director of any State bank or director or trustee of any trust company
shall be obligated to any such bank or trust company to an amount
exceeding 5 per centum of its capital actually paid in and its surplus and
undivided profits combined; and no such bank or trust company shall
permit its directors or trustees to become obligated to it to an amount at
any one time exceeding in the whole the sum of 20 per centum of its capi
tal actually paid in and its surplus and undivided profits combined. The
provisions of this section shall not apply to loans secured by collateral, so
long as the market value of such collateral shall exceed by 20 per centum
the total liabilities secured in each case by such collateral; but such loans
on collateral to any one director or trustee shall at no time exceed 10 per
centum of the capital stock of such bank or trust company actually paid
in and its surplus and undivided profits combined. Every State bank or
trust company which shall violate the provisions of this section shall for
feit to the State not less than $500 nor more than $1,000., If any director
of any State bank or any trustee or director of any trust company shall
receive any compensation for endorsing any paper discounted by such
bank or trust company, he shall be fined not less than $500 nor more than
$1,000 for each offense. The directors of any State bank or the directors of
any tr,ust company, in making any dividend, shall take the question
thereon by yeas and nays, which shall be recorded on its records; and no
such bank or trust company shall declare any dividend except from its
earnings remaining after deducting all losses, all sums due for expenses, and
all overdue debts upon which no interest has been paid for a period of six
months, unless the same are well secured and in process of collection; and
the trustees and directors voting for any dividend not in conformity with
the provisions of this section shall be fined $500, for which they shall be
jointly and severally liable. The directors of any State bank or trustees or
directors of any trust company, by vote of its stockholders, may, at any
time, reduce its capital stock to such sum and such number of shares as
they may determine, subject to the approval of the bank commissioners.
The cashier of each State bank and the treasurer of each trust company,
when he first takes office and as often as once in each period of five
years thereafter, shall give a bond in the penal sum of not less than
$10,000, payable to such bank or trust company, with sufficient surety
or sureties, which shall be accepted and approved by the directors
or trustees, for the faithful performance of the duties of his office.
■Any corporation authorized to carry on the business of fidelity insurance
or corporate suretyship in this State may be surety on such bond. No
officer, director, or trustee of any such bank or trust company shall be
surety on any such bond, and all sureties, other than corporate sureties
shall be residents of this State. Every such bond, and every renewal or
certificate of renewal thereof, shall be forthwith recorded at length upon
the books of the bank or trust company to which it is given, and shall at
all times be subject to the inspection of the bank commissioners; and every
such bond and renewal certificate thereof shall be examined annually by
said commissioners. It shall be the duty fof the president of each State
bank and trust company safely to keep the original bond or bonds re
quired as aforesaid, and all renewals and certificates of renewal thereof,
and to certify on the records of the bank or trust company that the copy
of each bona or renewal certificate is correct and that the original of such
bond or certificate is in his possession. If any such cashier or treasurer shall
neglect to give the bond as aforesaid, within thirty days from the time of
his appointment, his office shall become.vacant. Each State bank and
trust company shall make to the bank commissioners not less than five re
ports during each year, verified by the oath of the cashier or treasurer of
such bank or trust company. Each such report shall exhibit in detail and
under appropriate heads, according to the form which may be prescribed
by the commissioners, the resources and liabilities of such bank or trust
company at the close of business on any past day specified by the commis
sioners. Such report shall be transmitted to the commissioners within ten
days after the receipt of a request therefor from them, and shall be pub
lished, in such form as they may prescribe, in a newspaper in the county
where such bank or trust company is located. Any bank or trust com
pany which fails to make and transmit any such report, when requested
by the commissioners, shall forfeit to the State $10 for each day that it de
lays to transmit such report. Any public official of the State or of any
county, municipality, or school district is hereby authorized to deposit any
funds or moneys in his hands belonging to the State, or to such county,
municipality, or district, or held by him as such official or as trustee, in and
with any of the national and State banks and trust companies in this State;
;provided, however, that such deposits shall only be made in his name as
such official or trustee, or in the name of the State, county, municipality,
or school district to which the money belongs, and that in ho case shall
the deposit by such official in any one bank or trust company exceed in the
aggregate at any one time 30 per centum of the capital, surplus, and undi
vided profits of such bank or trust company; and ■provided further, that
whatever interest or other pecuniary consideration such bank or trust com
pany shall allow for or upon such deposit shall belong to and accrue to
the benefit of the State, or such county, municipality, or district.
No person or persons, association, or body corporate, except banks,
trust companies, or building and loan associations incorporated by the
United states or by the General Assembly of this State, shall advertise or
put forth a sign having thereon any of the following words; “Bank,”
“ Trust,” or “Savings,” or any artifical or corporate name, or other words
indicating that such person, persons, asiociation, or body corporate is a
bank, trust company, savings bank, or building and loan association, or
shall in any way solicit or receive deposits as a savings bank. Every
person, ass icialion, or body corporate violating the provisions of this act
shall be fined not more ihan $1,000. This act shall not affect firms or
individuals doing business as private bankers or brokers under their own
name or names.
S uits. {See Actions.)
T a x e s. Land may be sold lor 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 the purchase money, with
12 per cent interest. Bonds, notes, or other choses in action, except bonds
and notes secured by mortgage on real estate situated in this State, may be
exempted from all local taxation by paying to the State a tax of 1 per cent
on the face amount thereof for five years, or at the option of the holder
thereof for a greater or less number ol years at a proportionate.rate.
All property, in excess of ten thousand dollars in value, within the juris
diction of this State, whether belonging to inhabitants of this State or
not, which shall pass by will or by the intestate laws of this State, or by
deed, grant, sale, or gift made or intended to take effect in possession
or enjoyment after the death of the grantor, shall be subject to a succes
sion tax, as follows: Property passing to the parent or parents, husband,
wife, or lineal descendants, or legally adopted child of the deceased
person, shall be liable to a tax of one-half of 1 per centum of its value
for the use of the State, and any such estate or interest therein, which
shall pass to collateral kindred or to strangers to the blood, or to any
corporation, voluntary association or society, shall be liable to a tax of
3 per centum of its value.
T ra n s fe r o f C o rp o ra tio n S to ck s. (See Corporations.)
T ru s t C om p an ies. {See State Banks and Trust Companies.)
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
W a re h o u se R e c e ip ts . No warehouseman shall issue any receipt
for any goods, wares, etc., received unless the words “ public warehouse”
are displayed on the front of his warehouse; nor shall he issue such receipt
directly, or as security for any money loaned or other indebtedness, unless
the goods, wares, etc., are in his custody at his warehouse at the time of
issuing such receipt; nor shall he issue any duplicate receipts while a
former receipt for the same goods, etc., is outstanding and uncanceled,
unless the second receipt is marked in red ink with the word “ Duplicate ”
across its face. Warehouse receipts, unless marked 4‘ not negotiable ’’ may
be transferred by indorsement, and the indorsee shall be regarded as the
owner of the goods, etc., specified so far as to give validity to any pledge,
lien, or transfer made or created by such indorsee.
W ills. All persons of the age of eighteen years, and of sound mind,
may dispose of their estate (real or personal,» by will. No devise, except
for public and charitable uses, or for the care of cemeteries or graves,
shall be made to any persons but such as are at the time of the death of
the testator in being, or to their immediate issue or descendants. Wills
must be in writing, subscribed by the testator, and attested by three
witnesses, each of them subscribing in his presence, but they will be
effectual here if executed according to the laws of the State or country
where executed. If, after the making of a will, the testator shall marry,
or if a child is bom to the testator, and no provision is made in tne
will for such contingency, such marriage or birth shall operate as a
revocation of such will. A will or codicil is otherwise revoked by burn
ing, canceling, tearing, or obliterating it by the testator, or some person
in his presence by his direction, or by a later will or codicil. A devise
or bequest to a subscribing witness, or to the husband or wife of a sub
scribing witness, is void, unless the will is otherwise legally attested, or
unless the devisee or legatee be an heir to the testator. Wills are proved
and estates settled in the probate court in the district where the deceased
resided.
SYNOPSIS OP THE LAWS OF DELAWARE
REBATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S ,
Prepared and Revised by R obert H. Van Dyke , E sq., Attorney at Law,
Dover. (See Card in Attorneys' List.)
A c k n o w le d g m e n t. (See Conveyances.)
A c tio n s. Suit may be commenced by capias, summons, and (where
defendant is non-resident) by attachment of property. Summons in
justice’s court may be issued returnable in four days from date of service,
or may be made returnable forthwith, upon plaintiff filing an affidavit
that there is danger oi his losing the benefit of his process by delay. In
superior court the summons must be served personally on debtor before
court sits, or by leaving a copy of the summons at his usual place of
abode, in presence of some white adult person, six days before court sits.
Service by publication allowed in the court of chancery only.
A ffidavits may be administered in the State by the chancellor, any
judge, justice of the peace, or notary public; and out oi the State by
any official duly authorized to take acknowledgments of deeds, etc.;
but before a notary public is preferable. The affiant must sign the
affidavit.
A ssig n m e n ts a n d In so lv e n c y . There is a domestic insolvent
law providing lor a full surrender and equal distribution of all property,
but it is very seldom used, and there is no provision in the act for the
discharge of the debtor upon his making an assignment. The assignee
must file a schedule of property assigned within thirty days, and two
appraisers are then appointed by the chancellor. Assignments must be
for the benefit of all creditors alike.
A tta c h m e n ts . Domestic attachment may be issued against an
Inhabitant of this State, after a return to a summons or capias issued ten
days before the return thereof, of non est inventus, and proof of cause
of action; or upon the filing of an affidavit “ that the defendant iB
justly indebted to the plaintiff in a sum exceeding $50, and has
absconded from the place of his usual abode, or gone out of the State
with intent to defraud his creditors, or to elude process, as is believed.
The writ directs the attachment of property and summons of garnishees.
Attachment may be dissolved on entering security to satisfy any
judgment to the extent of the property attached that may be recovered
against the defendant. On return of attachment the court appoints
tnree persons as auditors of the claims of creditors; the creditor attaching
Is allowed a double share for his diligence, not to exceed full amount
oi debt. Any creditor not dflly presenting his claim receives no share
in the distribution. Plaintiff is not required to give security. Wages
are exempt from attachment in New Castle County except for board or
lodging. Foreign attachment may be issued against any persra not an
Inhabitant of the State after a return of non est as in domestic attach
ment. or upon affidavit being made “ that the defendant resides out of
the State, and is justly indebted to the plaintiff in a sum exceeding $50.
Foreign attachment may also issue against a foreign corporation, but in
this case the amount of the real debt must be particularly specified in
the affidavit, and must exceed fifty dollars. Unlike domestic attachments the plaintiff in foreign attachment has the benefit of his own dis
covery and does not share with other creditors. It is similar to domestic
attachment in all respects except as to appointment of auditors ana
distribution among creditors. The court or any j udge upon petition may
investigate any allegation in affidavit, except as to the amount of the debt,
and dissolve the attachment if sufficient ground be not shown. Foreign
attachment is otherwise dissolved by entering special bail.
B a n k s. There is no general banking act and but one State bank,
which was chartered by the legislature in 1807. There are no official
examinations and the bank is merely required to make a yearly report of
its condition to the governor of the State. Banking companies can not
be formed at present, as there has been no statutory provision for so
doing. The holders of stock are taxed at the rate of one-fourth of one
per centum on the cash value of each share of capital stock.
B ills a n d N otes. Acceptance should be in writing on the bill.
All checks, notes, drafts, or bills, foreign or inland, payable without
time or at sight, are due on presentment without grace.
C h a tte l M o rtg ag es must be accompanied with an affidavit that the
mortgage is made for the bona fide purpose of securing a debt, and not
to delraud creditors, and if recorded within ten days from the acknowl
edgment thereof, is a valid lien for five years on personal property, the
possession of which may remain in the mortgagor.
B A N K IN G A N D C O M M E R C IA L L A W S — D E L A W A R E .
C laim s A g a in st E s ta te s o f D eceased P e rso n s are paid in the
following order: 1. Funeral expenses. 2. Bills for medicine, medical
attendance, nursing, and necessaries for last sickness of the deceased.
3. Not more than one year’s wages of servants in house and laborer on a
farm. 4. Rent for not more than one year, either growing due or in
arrears. 5. Judgments and decrees in equity against deceased. 6.
Recognizances, mortgages, and other obligations of record. 7. Obliga
tions and contracts under seal. 8. Contracts under hand for the payment
of money, delivery of goods, wares, or merchandise. 9. Other demands.
Administration is granted: 1. To the person entitled to the residue.
2. To one or more of the creditors. 3. To any suitable person, resident
or non-resident. Bond must be given for. an amount double the
value of the estate. Notice must be given of claims against the de
ceased within six months from granting of letters (except claims of
record), or executor or administrator is protected in paying debts of a
lower grade. One year is allowed for settling the estate, and until the
expiration of that time, he need not make distribution, nor is he
chargeable with interest on the assets in hand. He may be removed upon
sufficient cause. Letters granted in other States and produced under the
seal of the officer or court granting the same, is competent authority Jfor
him to act in this State.
C o n tra c ts are joint and several, unless otherwise expressed.
C onveyances of R e a l E s ta te must be under seal (a scroll is
sufficient), and should be executed before one witness at least. Deed may
be acknowledged out of the State before any consul-general, consul, or
commercial agent of the United States, duly appointed in any foreign
country at the places oftheir respective official residence; before the judge
of any district or circuit court of the United States, or the chancellor or
any judge of a court of record of any State, Territory, or country, or
the mayor or chief officer of any city or borough, ana certified under
the hand of such chancellor, judge, mayor, or officer, and the seal of his
office, court, city, or borough, by certificate endorsed upon or annexed
to the deed; or such acknowledgment or proof may be taken in any
such court and certified under the hand of the clerk or other officer of said
court, and th e seal of said court in like manner. In case of snch certificate
by a judge, the seal of his court may be affixed to his certificate, or to a
certificate of attestation of the clerk or keeper of the seal. Such
acknowledgment may also be taken by any commissioner of deeds for
this State, or by a notary public of any State or Territory. Wife must join
in deed to bar dower, and husband to bar courtesy. A deed by a
corporation may be executed and acknowledged by the president or other
presiding officer duly authorized by resolution of the directors, trustees,
or other managers, or by the legally constituted attorney of such
corporation. Deeds must be recorded within three months after sealing
and delivery, to avail against creditors, mortgagee, or bona fide pur
chasers, without notice.
C o rp o ra tio n s. General Corporation Act fo r all purposes other than
banking. Each stockholder is individually liable for the amount ol
capital stock not paid in in proportion to the amount subscribed by him.
Corporations of other States may be sued in this State, and the property
of the same found here may be seized by attachment. All foreign cor
porations must file with the secretary of State, statement of assets and
liabilities, and the name of its authorized agent upon whom process may
be served; must pay a State tax of $50, and fees of secretary of State
(this State tax is paid but once) must file with the prothonotary of each
county the name of authorized agent upon whom process may be served.
Costs. Non-resident plaintiffs may be required to give security for
costs.
C ourts. Terms and Jurisdiction. The different courts of the State
are as follows: Supreme court; regular term at Dover third Tuesday
in June and January. Court of chancery and orphans’ court; regular
terms, New Castle county, at Wilmington, on the fourth Monday in
March and second Monday in September; Kent county, at Dover, third
Monday in March and third Monday in September; Sussex county, at
Georgetown, second Monday in March and first Monday in September.
Superior court, and court of general sessions of the peace and jail delivery
are held in Sussex county, on the first Monday in April and first Mon
day in October; in Kent county, on the fourth Monday in April and fourth
Monday in October;_ New Castle county, court of general sessions
on the first Monday in February, on the third Monday after the com
mencement of the April term in Kent, on the third Monday in Septem
ber and on the third Monday in November. The superior court in
New Castle county meets with the court of general sessions, etc., in j
February and September, and one week later in May and November.
Oyer and terminer meets on call of judges. Jurisdiction—The superior ¡:
court has jurisdiction in all civil cases, but if suit be brought for less I
than $50, costs will not be recovered. Justice’s jurisdiction, $200.
D ep o sitio n s. In any suit pending, the prothonotary, on application,
enters a rule commission on the part of the applicant to any commissioner
of the State or other person. The commission issues on ten days’ notice
of interrogatories filed. Exceptions to interrogatories must be filed be
fore the commission issues, and are heard before a judge at chambers.
Exceptions to the execution must be filed within two days after
publication. If the commissioner employ a clerk, add “ The clerk by
me employed in taking, writing, transcribing, and engrossing the said
depositions, having first duly taken the oath assigned to the said com
mission according to the tenor thereof.”
D ivorce. The superior court has sole cognizance for the following
cau®es : 1- A divorce from the bonds of matrimony shall be decreed for
a“fi‘tery, desertion for three years, habitual drunkenness, impotency of
either party at the time of marriage, extreme cruelty, or conviction,
either in or out of this State, after marriage, of a crime by the laws ofthis state deemed felony, whether such crime shall be perpetrated before
or after such marriage. 2. A divorce from the bonds of matrimony,
or from bed and board at the discretion of the court shall be de
creed for procurement of the marriage by fraud for want of age, the
husband being under the age of eighteen years or the wife being under
+aSe °f sixteen years at the time of the marriage and such marriage
notbemg after those ages voluntarily ratified; or for willful neglect on the
part of the husband for three years to provide for his wife the necessa
ries of life suitable to her condition. The same court can decree
damages null and void which are prohibited by law for consanguinity
or affinity-or between a white person and a negro or mulatto; or where
either of the parties had, at the time of the marriage, another husband or
wile living; or where either of the parties was at that time insane. No
aivorce from the bonds of matrimony shall be decreed by the court when
the cause assigned therefor in the petition occurred out of this State, and
the petitioner was a non-resident thereof at the time of its occurrence un
less tor the same or like cause such divorce would be allowed by the
laws of the State or country in which it is alleged to have occurred.
E x e c u tio n s are a lien upon personalty from the time the sheriff
received the writ, if actual levy be made within sixty days thereafter,
-mionety of lien remains in force five years. Execution maybe issued
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1197
within five years after date of judgment. An execution from a Justice is
a hen from time_ writ is received, if levy be made within thirty days,
and priority of writ remains for two years. Execution can not issue after
three years without revival. Goods and chattels of a tenant are liable
to one year s rent m preference to the execution. There is no redemp
tion on property sold under execution or mortgage. In New Castle
w?£e8 ^°I.a
°f employés of corporations are preferred to
“L exec?tlonsix months is granted in courts of record upon
judgments recorded for want of affidavit of defense, provided security be
given within twenty days after judgment. In justice’s courts defend
ant may have six months’ stay, upon pleading his freehold; nine months’
stay upon giving security.
E x e m p tio n s. No homestead law. Family pictures, bible, and library:
lot m burial-ground and pew in church; all wearing apparel, sewing
machines m private families; tools of trade not to exceed $50 in Kent, or
Coun,ty;
and.t0and
th,einhead
a famiJy
in consisting
New Castle
county $200 of personal
property
Kentofcounty
$150,
of
household goods only. No additional exemption in Sussex. Theprovisions_ of the exemption law extend and apply to a person dying and
leaving a widow, giving and securing to such widow the same benefit
ot exemption that her husband would have had if living. Wages are
exempt from execution attachment in New Castle county except for
boarâ or lodging. Pianos and rrgans leased or sold under contract
exempt from execution process or distress for rent, provided the
lessor or vendor notifies the landlord in writing of the claim thereon.
F ra u d s. Sale of goods void as to third parties, unless for a valuable
consideration and the possession thereof be actually delivered to the
vendee. A promise to pay the debt, default, or miscarriage of another to
the extent of five dollars is binding if proved by the oath of the promiseefor an amount between five and twenty-five dollars must be proved by
one credible witness or some memorandum in writing signed bv the
person to be charged therewith; for an amount exceeding twenty-five
dollars there must be some memorandum or promise in writing signed bv
the party to be charged therewith.
y
G a rn ish m e n t. All persons except public officers, attorneys, etc., are
subject to summons as garnishees. Wages are not subject to garnishment in New Castle county except for board or lodging.
, J ï olî d,aysA,l4e# a l - wJanaary 1st, February 12th, February 22d, May
30th, July 4th. first Monday in September, Thanksgiving Day and
Christmas, and Saturday afternoon m New Castle county. If legal
holiday falls on Sunday the next day is observed. Negotiable paper
falling due on legal holiday is due and payable on the next preced
ing secular day; if falling due on Saturday half-holiday, if not presented
for payment before noon, is not due till the next succeeding secular day.
H o m e stea d . There is no homestead law in Delaware.
---------ojcgai iaie is u per cent. Any person who takes more for
the use or the loan of money shall forfeit and pay to any one suing for
the same a sum equal to the money loaned, one-half for the use of the
State, and the other for the party suing.
J u d g m e n ts of courts of record are liens upon all real estate of the
debtor in the county where judgment is entered from their date, but
the lien may be extended into either or both the other counties. Judg
ments can only be obtained in this State upon judgments in other
States by suit, upon a certified copy of the record of said judgment
authenticated under the Act of Congress passed May 26, 1790 Tran
scripts of judgments recovered 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.
L im ita tio n s . Contracts not under hand and book accounts three
years, bills and notes under hand six years. Judgments and specialties
are merely presumed to have been paid after the lapse of twenty years
but this presumption may be overcome by proof to the contrary All
judgments must be renewed before January 1, 1906, otherwise their lien
will be lost. Thereafter judgments must be renewed within ten years
The statute does not begin to run in favor of non-resident debtor untii
he come into the State, in such manner that he may be served with
process, and if a debtor remove after the cause of action has accrued the
time of his absence is not computed. On recognizances of sheriffs’
administrators’ or executors’ bonds, within six years from date. Bond
of guardian within three years from the determination of guardianship.
M a rrie d W om en retain their real and personal property owned at
marriage 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 controls
able by the husband. Dower. The widow is entitled to one-third part
of 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 age of twenty-one years and
upward may dispose of her. property, both real and personal, by will
without the written consent of her husband, but subject to his right of
curtesy. Two or more witnesses are necessary for a will. Husband and
wife may testify in all civil actions in which either or both are or mav be
parties to the suit.
J
M ortgages o f R e a l P r o p e r ty are executed and acknowledged like
other deeds. They become a lien from the time they are lodged with the
recorder. Upon foreclosure of same there is no redemption of property
A purchase money mortgage should be recorded within thirty days to
avail against a subsequent innocent holder.
P ro o f o f C laim s. The full individual names of plaintiffs and
defendants, together with style of doing business, must be stated; or if a
corporation, the laws of what State under which incorporated. One of
the plaintiffs, if a partnership, or the treasurer or cashier of a corpora
tion, must make the affidavit to the amount claimed, giving an itemized
copy of the cause of action attached thereto. It is advisable to have the
affidavit made before a notary public, though it may be made before
others. (See Affidavit.)
P ro te st. (See Bills and Notes.)
R ep lev in . The writ issues out of the superior court to obtain posses
sion ot 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 m a penalty of double the value of the goods to be
replevined, conditioned to prosecute the suit with effect, etc. Defendant
may give counter bond-and retain the goods.
S a m m o n s may be served on the defendant by stating the substance i
of it to him personally at any time before the return of the writ, or bv
a C0Py.0^ atdiis usual place of ab re in the presence of some
adult person six days before the return thereof. Against a corporation
1198
B A N K IN G AND C O M M E R C IA L L A W S — D IS T R IC T O F C O L U M B IA .
per cent of the stock is or may be owned by persons or associations not
citizens of United States can not acquire or own real estate in District
of Columbia.
A p p e a ls . Appeals will lie from justices of the peace to the supreme
court of the District of Columbia where more than $5 is involved
and in actions for the recovery of possession of real estate. Appeals
may be taken from the supreme court of the District of Columbia to the
court of appeals of the District of Columbia. Appeals may be taken from
the court of appeals to the supreme court of the United States in all cases
involving $5,000, exclusive of costs, or where a constitutional question or
some treaty with a foreign power is involved.
A r b itr a tio n . Parties may submit any matter in dispute to arbitra.
tion, and if the ordinary rules of law relating to such matters are observed,
the award will be sustained by the courts. Submissions may be made
either before or after suit is brought, except in cases where a party to be
affected by the result is an infant or non compos mentis.
A rre s t. There is no imprisonment for debt in the District of Columbia.
The court has the power to imprison for non-payment of alimony in
divorce cases.
A ssig n m e n ts must be accompanied by inventory under oath, or
affirmation, of all assignor’s property, a list of creditors, with their resi
dences and places of business, if known, and amount of their claims.
Assignee must be resident of the District. Preferences prohibited.
Assignment may be attacked before judgment obtained against assignor
by bill in equity. Assignments are practically superseded by “Insolvency
Act.”
A tta c h m e n ts may Issue at Institution of suit or subsequently, upon
affidavit of plaintiff or his agent, supported by that of one or more
witnesses, showing the grounds of his claim and right to recover, and
that defendant is a non-resident, or evades service of process, or is about
SYNOPSIS OF THE LAWS OF THE
to remove, assign, dispose of, or secrete property with intent to hinder,
delay, and defraud creditors, or that the debt was fraudulently con
DISTRICT OF COLUMBIA
tracted. Creditor must give bond, with approved surety or sureties, to
be approved by the Clerk, in twice the amount of his claim for costs and
RELATING TO
damages if attachment is wrongfully sued out.
B a n k s . All banks organized in the District of Columbia, except
B A N K IN G A N D C O M M E R C IA L U S A G E S .
purely private banks, are subject to, and governed by, the acts of Con
gress applicable to national bank associations. (See Revised Statutes
. Prepared and Revised hy J ohn B. L abner, Esq., Attorney at Law,
of .the United States, Sections 5211-12-lil.) Private banks are partner
Washington. (See Card in Attorneys' List.)
ships.
A c co u n ts. In all cases of suits upon open accounts duplicate item
B ills a n d N o te s. The common law of England relative to bills and
ized copies of the account must he furnished as particulars of demand,
notes, except where changed by statute, governs all cases in which they
are involved. A law similar to the New York Negotiable Instruments
one copy for each defendant and one to he filed.
Law is now in force in this District. (See Legal Holidays and Protest.)
A c k n o w le d g m e n ts. The deed of a corporation shall be executed
bv having the seal of the corporation attached and being signed with the
C h a tte l M o rtg a g es. No bill of sale or mortgage or deed of trust to
name of the corporation, hy its president or other officer, and shall be
secure a debt of any personal chattels whereof the vendor, mortgagor, or
acknowledged as the deed of the corporation by an attorney appointed
donor shall remain in possession, is valid and effectual to pass the title
for that purpose, hy a power of attorney embodied in the deed or by one
herein, except as between the parties to such instrument and as to other
separate therefrom, under the corporate seal, to be annexed to and
persons having actual notice of it, unless the same be executed and ac
knowledged and within ten days from the date of such acknowledgment
recorded with the deed.
’
recorded in the same manner as deeds of real estate; and as to third per
A c k n o w le d g m e n t o f D eeds. When any dee(J or contract under
sons not having notice of it, such instrument shall be operative only from
seal relating to land is to be acknowledged out of the District of Columbia,
the time within said ten days when it is delivered to the recorder of deeds
but within the United States, the acknowledgment may be made before
to be recorded.
anv iudge of a court of record and of law, or any chancellor of a State,
anv iudge or justice of the supreme, circuit, or territorial courts of the
C o lla te ra ls. The holder of the note as collateral security for debt
United States, or any justice of the peace or notary public: Provided that
stands upon the same footing as the purchaser and may maintain suit
the certificate of acknowledgment aforesaid, made by any officer or a
thereon for his own benefit. The collateral pledged may be sold in
state or Territory, not having a seal, shall be accompanied by a certificate
accordance with the terms of the collateral note which usually provides
of the register, clerk, or other public officer that the officer taking said
that the collateral may be sold upon non-payment of the principal of the
acknowledgment was in fact the officer he professed to be. Deeds made
note, either at public or private sale, and in such cases the purchaser at
in a foreign country may be acknowledged before any judge or notary
any such sale obtains a valid title to the collateral sold.
Dublic, or before any secretary of legation or consular officer or acting
C o n tra c ts. Every contract and obligation entered into by two or
consular officer of the United States as such consular officer is described
more persons, whether partners or merely joint contractors, whether under
in section 1674 of the revised statutes of the United States, and when the
seal
or not, written or verbal, and whether expressed to he joint and sev
acknowledgment is made before any other officer other than a secretary of
eral or not, is for the purposes of suit deemed joint and several. On the
legation or consular officer or acting consular officer of the United States,
death
of one or more of such persons, his or their executors, adminis
the official character of the person taking the acknowledgment shall be certi
trators, or heirs are bound by said contract in the same manner and to the
fied in the manner prescribed as to deeds out of the District of Columbia
same
extent
as if the same were expressed to be joint and several. In
but within the United States. No deeds of conveyance of either real or
actions ex contractu against alleged joint debtors it is not necessary for
personal estate by individuals shall be executed or acknowledged by
the plaintiff to prove their joint liability in order to maintain his action,
attorney.
bnt he is entitled to recover, as in actions ex delicto, against such of the
defendants as shall be shown by the evidence to be jointly indebted to
A ction s. Justices of the peace.have jurisdiction in all civil cases in
him or against one only, if he alone is shown to be indebted to him, and
which the amount claimed to be due for debt or damages arising out of
judgment
will be rendered as if the others had not been joined in the
contracts, express or implied, or damages for wrongs or injuries to per
suit. Any of several joint debtors, when their debt is overdue, may make
sons or property, does not exceed three hundred dollars, including all
a
separate
composition or compromise with their creditors.
proceedings Dy attachment or in replevin where the amount claimed or
the value of the property involved does not exceed said sum, except in
C o rp o ra tio n s. Any three or more persons majr form a company for
cases involving the title to real estate, actions to recover damages for
the purpose of carrying on anjr enterprise or business which may he
assault or assault and battery, or for mahcious prosecution, ?r actions
lawfully conducted by an individual, excepting banks of circulation or
against justices of the peace or other officers for official misconduct,
discount, railroads and such other enterprise or business as is otherwise
of actions for slander or libel, or actions on promises to m any, and
provided for. Such corporations may have a perpetual existence. No
said jurisdiction shall be exclusive when the amount claimed for debt
such company Is authorized to transact business until 10 per cent of the
or damages or ^he value of personal property claimed does not exceed
capital stock shall have been actually paid in, either in money or property
$50 and concurrent with the supreme court when it exceeds $50. Jury
at its actual value; and the recorder of deeds, before filing any certificate
trials before justices of the peace are abolished and all costs of court are
of incorporation, must be satisfied that the entire capital stock has been
payable in advance, non-residents being required to give bond. Judg
subscribed for in good faith. All of the stockholders of such company are
ments of justices of the peace, when the amount claimed exceeds $20,
severally and individually liable to the creditors of the company in which
exclusive of costs, may be recorded in the supreme court of the District
they are stockholders for the unpaid amount due upon the shares of said
of Columbia, and. when so recorded, will have the same force mid effect
stock held by them respectively, for all debts and contracts made by such
as a judgment rendered by said supreme court. (See Judgments.)
company, nntil the whole amount of capital stock fixed and limited by
'
such
company shall have been paid in, and a certificate thereof shall have
A d m in is tra tio n . The Probate Court, a special term of the supreme
been made and recorded. Every such company must annually, except in
court of the District of Columbia, has exclusive j urisdiction of the settle
surance
companies, within twenty days from the first of January, make a
ment of estates. A written petition stating the facts in the case must be
report which shall be duly published and which report shall state the
filed with the register of wills. This petition is acted upon by a justice
amount
of capital and the proportion actually paid and the amount of
of &e supreme court of the District, vyho sits daily. All executors and
existing debts. On failure to comply with this provision any creditor or
administrators and guardians are required to give bond with security to
other
person
interested may petition for mandamus and compel such pub
be approved by the Court. The testator may waive the giving of bond,
lication to be made, and the Court will require the corporation or officers
but the court always requires a bond sufficient to cover the debts of the
at
fault
to
pay
all costs of such proceeding, including counsel fees. For
deceased not to exceed double the value of the personal estate. By act
eign corporations doing business in the District of Columbia are subject
of Congress, certain trust companies incorporated thereunder may act
to
service
of
process
on their agents or on the persons conducting their
as exefutor or administrator without bond, and corporations having
or by leaving copy thereof at the principal place of business of such
power under their charters may act as sureties in all ®use8 where indi- * business
company
or
at
the
residence
of its agent. Corporations are prohibited
vidnals can. Creditors may be barred m thirteen months provided the
from using their funds to deal in the stocks of other companies. Any
required notice is properly published. Probate Court may order sale of
company
incorporated
under
the
laws of the District is required to have
real estate to pay debts, in case personal assets are insufficient.
a designated place of business therein where it can be served with
process. The affairs of the corporation shall be managed by not less
A ffidavits. Affidavits for use in the District of Columbia should be
than three nor more than fifteen trustees, a majority of whom must be
taken before a justice of the peace, notary public, judge of any court of
residents of the District, to be annually elected, except for the first year,
record, or a United States commissioner.
bv the stockholders, at such time and place as may be provided by the
A lle n s . Aliena may hold personal property in the District of
bv-laws Voting of stockholders at such meetings may either be in
Columbia, and may acquire real estate by descent. Alien
person or by proxy. Public notice of the time and place of holding such
are prohibited from acquiring real estate. Corporations of which over 50
may he served on the president or head officer, if residing in the State,
and if not, on any officer, director, or manager of the corporation. In
chancery service may he had hy puhlication under order of the chancellor.
From a Justice service must be personal if forthwith, otherwise four
days must intervene before hearing.
T ax es laid and imposed hy the levy court of a county or hy the State
for its own purposes, 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 against him. General assessments are made every four
years.
W ills. Any person of the age of twenty-one years or upward, of
sound mind, may make a will as well of real as personal estate. Every
will must he in writing and signed hy the testator, or by some person
subscribing the testator’s name in his presence and hy his express direc
tion, and attested and subscribed in his presence by two or more credible
witnesses, or it shall he void. A will shall be proved before the register
of the county in which the testator resided at the time of hisdeath. A
nuncupative will of personal estate not amounting to over $200 and pro
nounced hy the testator in his last illness in the presence of two or more
witnesses is valid if reduced to writing and attested by said witnesses
within three days after. Children horn after the date of the will of the
parent are entitled to the same share of the parent’s estate as if such
parent had died intestate.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
B A N K IN G A N D C O M M E R C IA L L A W S —D IS T R IC T O F C O L U M B IA .
election must be published not less than thirty days previous thereto in
some newspaper printed and published in the District of Columbia. The
fee of therecorder for filing all certificaies of incorporation where capital
stock is authorized is forty (40) cents on each $1.000 of the amount of the
capital stock of the corporation, as set forth in its certificate, provided
that no fee shall be less than'Twenty-five Dollars.
C ourts in session continuously throughout the year. Suits on con
tracts, accompanied by sufficient affidavit of right to recover, result in
judgment in twenty days, exclusive of Sundays and legal holidays, after
day of service on defendant, unless defendant files an affidavit setting
forth facts which, if true, would in law constitute a valid defense.
C re d ito rs’ B ills. A creditor’s bill may be filed to enforce a judgment
where the property is subject to incumbrances. In such cases a trustee is
usually appointed to make sale of the equitable interest of the defendant.
D ays o f G race abolished.
Deeds. The following form of deed is now all that is required in the
District of Columbia to convey a fee simple litle to real estate:
This deed, made th is.... . day of........ , in the year....... , by me,........
0f ..........' witnesseth: That in consideration of (here insert considera
tion), I, the said............. . do grant unto (here insert grantee’s name), of
.......... , all that (here describe the property).
....................... (Seal.)
Witness my hand and seal.
A deed must be recorded with the recorder of deeds and takes effect from
the time of recording. A scroll is considered a sufficient seal.
D e p o sitio n s. Depositions of witnesses to be used in any civil cause
whether the case be at issue or not, may be taken under any of the
following conditions: 1. Where the witness lives beyond the District
of Columbia. 2. Where the witness is likely to go out of the United
States or out of the District and not return in time for the trial.
3. Where the witness is infirm or aged, or for any reason the party desir
ing his testimony fear he may not be able to secure the same at the time
of trial, whether the said witness resides within the District or not. 4. If
during the trial any witness is unable, by reason of sickness, or other cause,
to attend the trial, the deposition of such witness may, in the discretion
of the court, be taken and read at the trial. The deposition may be taken
before any judge of any court of the United States; before any commis
sioner or clerk of any court of the United States, or any examiner in chan
cery of any court of the United States; before any chancellor, justice, or
judge or clerk of any court of any State or Territory or other place under
the sovereignty of the United States, or any notary public or justice of the
peace within any place under the sovereignty of the United Slates: Pro
vided, that no such person shall be eligible to take such deposition who
is counsel or attorney for any .party to the cause, or who is in anywise
interested in the event of the cause
D e scen t a n d D istrib u tio n . The ordinary rules of descent may be
stated as follows: 1. If an intestate leaves a child or children, or
descendant of such child or children, his property descends to such child
or children, or their descendants, subject only to the dower right of the
widow, if there be one. 2. If the estate descended to the intestate on
the part of the father or mother and there be no child or the descendant
of any child, then to the brothers and sisters and their descendants.
3. If none, to the mother or father or the ancestors of the intestate and
their descendants of the blood of the mother or father, grandmother or
grandfather, as the case may be, subject to the widow’s dower. 4. If
none, then to the husband or wife and their kindred in equal degree,
equally. 5. No distinction between whole and half blood on part of
parent from whom estate descended. 6. If there be no heir, the lands
shall escheat to the District of Columbia. Personal Property: If a widow
and no child or descendants, parent, brother or sister or descendants, the
widow shall have the whole: if child or descendants, tbe widow shall
have one-third onlv: if no child or descendants, but parent, brother, etc.,
the widow shall have one-half. The surplus shall go as follows: (1) If
children or descendants, to them equally per stirpes; t.2) If no child or
descendants and a father, then to the father; (3) If no father, but a
mother, then to the mother; (4) If none, but a brother or sister or
descendants, to them equally per stirpes; (5) If none, to collateral re
lations in equal degree; (6) There is no distinction between the whole
and half blood; (7) No representation after descendants of brothers and
sisters; (8) Beyond the fifth degree, the personal estate goes to the Dis
trict of Columbia; (9) The husband on death of the wife is entitled to all
her personal property in possession without administration, but admin
istration is usually resorted to for protection of parties dealing with the
husband.
D ivorce. Absolute divorces may be obtained in the District of
Columbia for the following reasons: Where there is a prior valid marriage
not dissolved. Where the marriage was contracted during the lunacy of
either party (unless there has been voluntary cohabitation after the
lunacy), or the marriage was procured by fraud or coercion. Where either
party is matrimonially incapacitated at the time of the marriage and has
continued so. Adultery by either party. Where either of the parties
has not arrived at the age of legal consent to the contract of marriage
(unless there has been voluntary cohabitation after coming to legal age)
but in such cases only at the suit of the party not capable of consenting.
Divorces mensa et thoro may be obtained for drunkenness, cruelty, or
desertion.
D ow er. A wife is entitled to dower in all real estate owned by the
husband at the time of his death, including equitable as well as legal
estates.
E vidence. (See Depositions.)
E x ec u tio n s. Executions may be levied upon all goods and chattels
of the debtor not exempt, and upon gold and silver coin, bank notes or
other money, bills, checks, promissory notes or bonds, or certificates of
stock in corporations owned by said debtor, and upon money owned
by him in the hands of the marshal or of the constable charged with the
execution of such writ, and also upon all legal leasehold and freehold
estates of the debtor in land. Executions on judgments before j astices of
the peace may be superseded, according to the amount of the judgment,
upon good ana sufficient security being entered by a person who may at
the time be the owner of sufficient real property located in the District,
above all liabilities and exemptions, to secure the debt, costs and interests
from one to six months, but there can be no stay of execution for wages
of servants or common laborers, nor upon any judgment for less than $5.
E x e m p tio n s . (Actual residents). In addition to wearing apparel,
etc., household furniture to the value of $300, implements of debtor’s
trade or business to the value of $200, stock for carrying on business to
amount of $200, one horse, harness and cart, wagon or dray, and earnings
of married men or heads of families, not to exceed $100 per month for
two months. Exemptions are only allowed where the party claiming
such is the head of a family or householder residing in the District.
F o re ig n J u d g m e n ts . Suits may be instituted in the supreme court
of the District of Columbia on any judgment of a court of record in any
other jurisdiction. The declaration in any such case must be accompanied
by a transcript of the record of such judgment verified according to the
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1199
act of congress in such cases made and provided, and judgment in due
course may be rendered on such transcript as in any other case.
G a rn ish m e n t. After judgment thè writ of garnishment may issue
agiiinst specific property or credits in the hands of the garnishee and on
the return of the writ, if there be credits, the judgment or condemnation
follows. The writ of garnishment can not be issued against the United
States or the District of Columbia.
G u a ra n ty C om panies. Guaranty companies may be organized un
der the provisions of the code, but all such companies must have a capital
of $1,000,000. Such company may do a storage business when its cap
italization amounts to not less than $1,200,000.
H u sb an d and W ife. The wife’s property is exempt from the hus
band’s debts. The husband may convey direct to his wife. The wife may
use all of her property of every description as fully as if she were unmarried,
and may dispose of the same by deed, etc., as fully as if she were unmar
ried. She also has power to trade and to sue and be sued, but no married
woman under the age of twenty-one years can make a valid deed or con
veyance. On the death of a married woman the husband is entitled to an
estate by courtesy in her fee simple property of which she dies intestate.
On the death of the wife intestate her entire personal estate becomes the
property of her husband. The husband is not liable for the debts of his
wife contracted befoie marriage.
In ju n c tio n s. The supreme court of the District of Columbia sitting
in equity has the usual power to grant restraining ordere and injunctions.
In su ra n c e C om panies. The business of insurance companies is
controlled by the provision in the code creating an insurance department,
which department has entire supervision of the business of all insurance
conducted in the District of Columbia, and, in a general way, this super
vision is the same as the insurance departments of many of the States.
In te re s t. The legal rate of interest in the District of Columbia is 6
per cent, and in any suit where the contract is tainted with usury the
plaintiff forfeits the whole of the interest so contracted to be received,
and where usurious interest, has been paid it can be recovered provided
action for such recovery be brought within one year. In an action on a
contract for the payment of a higher rate of interest than is lawful in the
District, made or to be performed in any State or Territory of the United
States where such contract rate of interest is lawful, the judgment for the
plaintiff shall include such contract interest to the date of the judgment
and interest thereafter at the rate of 6 per centum per anfium until paid.
Ju d g m e n ts . Every judgment is good and enforceable by an execu
tion issued thereon for a period of twelve years from the date when an
execution might first have been issued thereon or from*the date of the last
revival thereof by scire facias. Judgments of justices of the peace are not
liens on real estate until recorded in the supreme court of the District of
Columbia.
J u ris d ic tio n . (See Actions and Appeals.)
L eg al H o lid ay s. Legal holidays are January 1st, February 22d,
May 30th, July 4th, first Monday in September (Labor Day), December
25th, or the following day when any of these dates fall on Sunday, and
such day as may be appointed by the President of the United States for
fasting and prayer. Every Saturday is a legal half holiday and notes fall
ing due on that day are not protested until Monday. Process is not issued
or served by the marshal after 12 o’clock on Saturday.
L iens fo r R e n t. The landlord has a tacit lien for his rent upon such
of the tenant’s personal chattels on the premises as are subject to execu
tion for debt, to commence with the tenancy and continue for three months
after the rent is due and until the termination of any action for such rent
brought within said three months. This lien is enforced by attachment,
upon affidavit, by judgment against the tenant and execution, and by action
against any purchaser of the chattels with notice of the lien.
L im ita tio n s. Fifteen years for recovery of lands, tenements or
hereditaments; executor’s or administrator’s bond, five years; instruments
under seal, twelve years; simple contracts and recovery of personal prop
erty aud damages for its unlawful detention, three years; statutory pen
alty or forfeiture, libel, slander, assault, battery, mayhem, wounding,
malicious prosecution, false arrest or imprisonment, one year; all other
actions three years. Usual exceptions in favor of persons under disability.
Acknowledgment to revive action on debt must be in writing. Part
payment will take debt out of statute.
M a rried W o m en . (See Husband and Wife.)
M ortgages. Mortgages are almost entirely supplanted by deeds of
trust, requiring no court proceedings to foreclose. Joining the wife is
necessary to bar dower.
N o ta rie s. Notaries are appointed by the President of the United
States for a term of five years ; number unlimited. Their powers are such
as are usually given to notaries throughout the United States.
P a rtn e rs h ip s . Limited partnerships for the transaction of any mer
cantile, mechanical, or manufacturing business within the District may be
formed by any two or more persons, but the number of special pàrtîiers
is limited to six. The special partners are not liable for the debts of the
partnership beyond the fund contributed by them to the capital. A cer
tificate setting forth the firm name; general nature of the business to be
conducted; names of all the general and special partners interested
therein, distinguishing which are général and which are special, and their
respective places of residence; the amount of capital contributed by each
special partner to the common stock; and the period at which the part
nership is to commence and terminate must be filed with the clerk of the
supreme court after having been acknowledged in the manner prescribed
for deeds.
P ro te s t. May be made by a notary public under his hand and seal;
or by any respectable resident of the place where the bill is dishonored,
in the presence of two or more credible witnesses. Where a foreign bill,
appearing on its face to be such, is dishonored by non-acceptance, it must
be duly protested for same; and where such a bill which has not pre
viously been dishonored by non-acceptance, is dishonored by non-pay
ment, it must be duly protested for same. If it is not protested the drawer
and indorsers are discharged. Where h bill does not so appear to be a
foreign bill, protest thereof in case of dishonor is unnecessary. The pro
test must be annexed to the bill or contain a copy thereof and must state
the (1) time and place of presentment; (2) the fact that presentment was
made and the manner thereof ; (3) the cause or reason for protesting;
(4) the demand made and the answer given, if any, or the fact that the
drawer or acceptor could not be found.
R ecords. The exemplification of the record under the hand of the
keeper of the same, and the seal of the office or court where such record
may be made, is good and sufficient evidence to prove any record made or
entered in any of the States or Territories of the United States; and the
certificate of the party purporting to be the keeper of such record,
accompanied by such seal, is prim a facie evidence of that fact. A copy
of the record of any deed or other instrument in writing, not of a tes
tamentary character, where the laws of the State, Territory, or country
B A N K IN G A N D C O M M E R C IA L L A W S —F L O R ID A .
1200
where the same may be recorded require such record, and which has been
recorded agreeably to such laws, and the copy of any will which said laws
require to be admitted to probate and record, by judicial decree, and of
the decree of the court admitting the same to probate and record, under
tho hand of the clerk or other keeper of such record and the seal of the
court or office in which such record has been made, is primn facie evidence
to prove the existence and contents of such deed, will, or other instrument
in writing, and that it was executed as it purports to have been.
S u its. The plaintiff may join in his declaration in debt, in separate
counts, different claims for liquidated amounts due him. whether founded
on judgment, specialty, or simple contract, and also claims for unliqui
dated damages for breach of contract, whether grow ing out of specialties
or simple contract. He may also join in his declaration, in separate
counts, different claims for damages for torts, whether committed with
force or not. He can also join, in the same declaration, counts sounding
in contract with counts sounding in tort, when they relate to the same
transaction. Court costs are $10, and $1 additional for each defendant
sued, Marshal’s fee for service of writ. For additional particulars, see
Courts. Costs of judgment before justice of the peace are about $1.60,
and in cases of attachment before j udgment about $6.85.
T ax e s. One and one-half per centum upon assessed value of prop
erty, real and personal. Penalty of 1 per cent per month for default
in payment. Taxes are payable in May of each year. New assessments
are made every three years, for real estate (unless improvements are put on)
and every year for personal property by a permanent Board of Assessors.
T ra n sfe r o f Corporation Stock. Stock in corporations may be
transferred by indorsement in blank unless by express restriction. Forms
of such transfers are always printed on back of Btock. Transfers and
sales by executors and administrators may be made after an order of
court has been obtained.
T ru s t C o m p an ies. Trust companies can be organized under the
general provisions of the code on that subject. No trust company can
be incorporated with less capital stock than $1,000,000. May do a storage
business with a capitalization of not less than $1,200,000. Foreign com
panies desiring to operate in the District must first comply with lhe pro
visions for the organization of trust companies under the laws of th‘s
District.
W ills . All wills and testaments must be in writing and signed by the
testator, or by some other person in his presence and by his express direc
tions, and shall be attested and subscribed in the presence of the said tes
tator by at least two credible witnesses, or else they shall be utterly
void and of no effect, and moreover, no devise or bequest,_or any clause
thereof, shall be revokable otherwise than by some other will or codicil in
writing or other writing declaring the same, or by burning, canceling,
tearing, or obliterating the same by the testator nimselt or in his pres
ence and by his direction and consent; but all devises and bequests re
main and continue in force until the same shall be burned, canceled,
torn, or obliterated hy the testator or by his direction in the manner
aforesaid, or unless the same be altered or revoked by some other will,
testament, or codicil in writing of the testator signed m the presence of
at least two witnesses attesting t he same, any former law or usage to the
contrary notwithstanding. No will, testament, or codicil is effectual for
any purpose whatever unless the person making the same be, if a male,
of the full age of twenty-one years, and if a female, of the full age of
eighteen years, and be at the time of executing or acknowledging it, of
sound and disposing mind and capable of executing a valid deed or con
tract. Any will executed after January 17,1887, and before January l,
1902, devising real estate, from which it shall appear that it was the in
tention of the testator to devise property acquired after the execution
thereof, shall be deemed, taken and held to operate as a valid devise of
all such property; and any will hereafter executed, which shall hy words
of general import devise all of the estate or all of the real estaie of the
testator shall be deemed, taken and held to operate as a_ valid devise of
any real estate acquired, by said testator after the execution thereof, un
less an intention shall appear to the contrary. Where a devisee or legatee
dies before the testator, leaving issue, such issue stands in the place of
the deceased devisee or legatee unless a contrary intention appear from
the will.
SYNOPSIS OF THE LAWS OF FLORIDA
RELATING TO
B A N K IN G A N D C O M M E R C IA L U S A G E S .
Prepared and Revised by Messrs. Blount & Blount, Attorneys at Law,
Pensacola.
Accounts. Accounts for the purpose of limiting actions are divided
into open accounts and store accounts. Store accounts cover any article
Sold by merchants and include both internal retail trade, and wholesale
trade between resident and foreign merchants; open accounts include all
Other sales of goods, wares, an<fmerchandise. Open accounts are barred
in two years and store accounts in four.
Acknow ledgm ents must in every instance be under official seal. If
made in the State of Florida, may be made before any judge, justice of
the peace, clerk or deputy clerk of a court of record, or notary public; if
made out of the State, and within the United States, before any judge,
clerk of court of record, or notary public, or justice of the peace, or a
commissioner of deeds for Florida; if made out of the United States,
before any commissioner of deeds appointed by the governor of the
State to: reside in such country, or any notary public of such foreign
country, or before any minister charge d’affaires, consul-general, consul,
vice-consul, commercial agent, oi> vice-commercial agent of the United
States appointed to reside in such country. Conveyances of dower and
powers of attorney for the execution of deeds to real estate must be
executed in like manner as conveyances of real estate. A wife’s ac
knowledgment must be taken separate and apart from her husband’s.
Officers must certify that the grantors are known to him. The following
is the usual form adopted, viz:
State of Florida,
1.
County of..................
f
Before the subscriber personally appeared.................................... and
...................................... known to me to be the individuals described, who
acknowledged that they executed the, foregoing conveyance for the uses
and purposes therein expressed; and the said....
.......... wife of the
said . ........................... acknowledged and declared that she executed the
same freely ,and voluntarily, and without fear, apprehension, compulsion,
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
or constraint of, or from, her said husband, and for the purpose of
renouncing and relinquishing all her right, of whatsoever kind, in and to
said property.
Given under my hand and seal official this ............ day of............19__
A c tio n s. Suits shall be begun only in the county (or, if less than $100
in justice district) where the defendant resides, or where the cause of
action accrued, or where the property in litigation is. If brought in
any connty where defendant does not reside, the plaintiff, or some person
in his behalf, shall file with the precipe or bill m chancery, an affidavit
that the suit is brought in good faith and with no intention to annoy the
defendant. This latter provision does not apply to suits against non
residents. Where there are joint defendants, suit may be brought in any
court (or justice district) where any one of the defendants reside. Cor
porations (domestic) can only be sued in a county where they keep an
office. Foreign corporations may be sued in any county where they have
an agent.
A d m in istra tio n o f E sta te s. Upon the death of a person intestate
or having made a will but appointing no executor, the probate court
appoints an administrator; preferring first the next of kin; but if none
such apply, then, upon notice given by publication, any creditor or
suitable person. No minor can he appointed. If no one applies for
letters of administration within sixty days after death, the probate court
may order the sheriff to act. The administrator appointed by the court
must give bond in amount to be fixed by the probate judge, respect being
had to the value of the estate. The sheriff when acting as administrator
is liable upon his official bond. Claims against ah estate are barred after
two years from date of notice given by administrator to present same.
Debts against the estate are payable in the following order: 1. Necessary
funeral expenses. 2. Debts due for board and lodging during last sick
ness. 3. Physicians, nurse, and druggist during last sickness. 4. Judg
ments recovered during lifetime of deceased, and all debts due the State.
5. All other debts, without distinction of rank. Debts due more than
five years prior to death are barred, saving to married women, minors,
and persons non compos mentis, imprisoned, or out of State, three years
after removal of disabilities. Land is assets in the hands of the admin
istrator or executor to pay debts; but he must first show exhaustion of
personal property and obtain leave of the court. The compensation of
the administrator is determined by the court and, in addition to compen
sation for his ordinary duties, not to exceed 6 per cent of money received
for sales made of personal and real property. Administrators must
make annual settlements before the first day of June each year or forfeit
commissions.
A ffidavits may be made before any judge, clerk of the circuit and
supreme courts, justice of the peace, or notary public.
A lie n s . No distinction between and citizens, except that they are
not allowed to vote.
A p p e a ls. Appellate proceedings for the common law side are by
writ of error, which must be sued out within six months from the date of
the judgment. Writs of error operate as a supersedeas as a matter of
course, if sued out within thirty days after the session of the court at
which the judgment was rendered, provided bond is given, if plaintiff
is appellant, sufficient to cover costs in lower and appellate courts, and
if defendant is appellant, sufficient to cover the amount of the judgment
and costs of both courts. Unless sued out within the time prescribed,
writs of error only operate as a supersedeas by special order of the court
and upon giving the bond above mentioned. Tne record must he filed
in appellate court on or before the return day of the writ,‘under penalty
of dismissal. Questions of fact can only be taken up by bill of excep
tions, which must be presented within the term of the court unless by
special order the time is extended. Recording the writ of error in the
minute book by the clerk within ten days of its issuance or receipt by
clerk gives appellate court jurisdiction of person of appellee. Appeals in
chancery may be taken within two years, and the law governing writs of
error as far as it relates to filing of transcripts of records and proceedings
thereon and filing assignment of errors, the duty of appellate court m
giving judgment, in causing execution of its decrees and quashing writs
of error, are applicable to apneals in chan eery. Notice of appeal in chancery
must be fileu with cierk and recorded in minutes. This gives appellate
court jurisdiction.
A rb itra tio n . Parties to the controversy may make a rule of court of
any arbitration to which they may desire to submit by filing a statement
of agreement of the matters they desire to arbitrate in writing with the
court having jurisdiction, which statement shall include the names of
the arbitrators and the umpire. An award upon such arbitration can
only be set aside for fraud, gross negligence, or misbehavior of one or
more of the arbitrators or umpire, or evident mistake acknowledged by
the arbitrators or umpire, who made and signed the award.
A rre s t. No arrest for non payment of money unless it be for non
payment o ra fine lawfully imposed.
A ssig n m ents and In so lv e n cy . Assignments by insolvents are
provided for by law. Preferences are not allowed. All property, except
that which is exempt, must be surrendered to the assignee. Assignee
gives bond and winds up estate. The assignment does not release debtor
from debts not satisfied hy it.
A ttachm en t process may issue upon affidavit made, setting forth
that amount is actually due; that plaintiff has reason to believe defend
ant will fraudulently part with his property before judgment can be
recovered, or is actually removing his property, or is about to remove
it out of the State, or reside beyond the limits thereof, or is actually
removing out of the State, or absconds or conceals himself, or is secreting
property or fraudulently disposing of same, or actually removing, or is
about to remove, beyond the judicial circuit in which he, she, or they
reside. Attachment may also issue for a debt not due, but which will
become due within nine months, upon affidavit stating that the debt is
actually existing, and that the defendant is actually removing his property
beyond the limits of the State, or is fraudulently disposing of his
property for the purpose of avoiding the payment of his just debts or de
mands, or is fraudulently securing bis property for such purpose. Proof
must, also, be exhibited to the officer by affidavit other than that of the
plaintiff, of the existence of the special ground. The making of the
affidavit causes all debts to mature for the purposes of the suit. Plain
tiff must give bond, with two securities, in at least double the debt or
sum demanded. Service of notice of the suit may be either personal or
by publication where attachment is levied and property is not retaken
by defendant. No arrestallowed in civil actions. Writs of garnishment
may be issued at commencement of suit or at any time afterward, pro
vided the plaintiff, his agent or attorney, will make affidavit that he
does not believe the defendant will have in his possession, within the
State and county, visible property on which a levy could be made,
sufficient to satisfy such execution as he believes he shall be able to ob
tain, and that affiant expects to obtain a judgment for (a specified amount).
B a n k s. There may be established, by five or more persons, in any
incorporated town or cjty having 3,000 or more inhabitants, a banking
B A N K IN G A N D C O M M E R C IA L L A W S — F L O R ID A .
association or institution, with corporate powers or privileges, with a
capital Of not less than $50,000. In towns of not more than 8,0(X) inhab
itants the capital may, with the comptroller's approval, be not less than
815,000. Savings banks may have not less than $20,000 capital. Banks
are formed as other corporations are, and can not begin business until
authorized by the comptroller. The comptroller of the State may inspect
and supervise the business of the bank, and inspect and examine its
books, papers, documents, minutes, and everything pertaining to the acts
of the bank. Banks are required to make a semi-annual return to the
State comptroller of resources and liabilities, and advertise in January of
each year amount of stock, property, and contractual indebtedness.
Before organization 50 per cent of the capital stock must be paid in
cash; 10 per cent each month thereafter. Stockholders are individually
liable to the extent of their stock at the par value thereof, in addition
to the amount invested in said shares. Directors must be citizens of the
United States, and own ten shares of stock of $100 per share. The comp
troller, with the aid of the courts, winds up the affairs of insolvent banks.
B ills o f L a d in g , Bills of lading are evidence against the carrier ol
the direction by which freights are to be received, carried, and delivered—
collector or holder of commercial paper, attached to bill of lading not a
warrantor of the quantity or quality of the goods represented thereby
except by express contract in writing, and the officers, agents, and
employes of the carrier are required to comply with the terms of the bill
of lading under penalty of criminal prosecution.
C h a tte l M ortgages a n d D eeds o f T ru s t. All conveyances intend
ed to secure the payment of money are mortgages. Chattel-mortgages
must be recorded or the property delivered to mortgagee to make them
effectual against bona fide creditors and purchasers for value. Injunction
will be granted against the removal of mortgaged personalty from the
State; can only be foreclosed by hill in chancery unless under $100, and
upon personal property, when a common law action may be brought in
justice of the peace court, and mortgage filed with precipe. The form
and effect of trust deeds have not been disturbed bv statute. It is a crim
inal offense to mortgage personal property more than once without the
consent of first lienor.
C o lla te ra l S e c u rity . It is a misdemeanor to sell, pledge, loan, or
in any way dispose of collateral security without the consent of pledgor.
A written agreement may be made at the time of making the pledge for
the sale of the collateral in such manner and upon such terms as the
parties may desire.
C o n trac ts. In order to bind an administrator personally, or one for
the debt or default of another, or one upon an agreement made in con
sideration of marriage; or upon contracts for the sale lands, tenements,
or hereditaments or any uncertain interest therein, or for any lease thereof
for a period longer than one year; or upon an agreement not to be
performed within one year, there must be an agreement, note, or memoran
dum thereof in writing signed by the party to be charged, or some one
lawfully authorized by him. Contracts for the sale of personal property
must be in writing, or the property must be delivered or earnest money
paid. Newspapers must either he subscribed for or ordered in writing.
C onveyances. (See Acknowledgments.) All conveyances of real
estate, or any interest therein for a term of years of more than two years,
must be by deed in writing, signed, sealed and delivered in the presence
of at least two subscribing witnesses; and in order to be effectual against
subsequent grantees or incumberances, must be recorded. The wife’s
separate estate can be conveyed only by the joint deed of herself and
husband, and confirmed by her acknowledgment, taken separate and
apart from her husband. Words of limitation unnecessary. Husband
may convey direct to wife.
C orp o ratio n s may be organized for any lawful business under a
general law. Stockholder liable only for amount unpaid upon subscrip
tion. Charter fee of $2 for every $1,000 of capital stock, payable to the
State, but no fee is less than $5 and none over $250.
Costs. Non-resident plaintiff required to give $100 bond to secure
costs. The defendant may have suit dismissed if bond not given.
C ourts. Circuit courts hold two terms a year in each county, and
have original jurisdiction in all equity cases, also in all cases at law
not cognizable by inferior courts. County courts have jurisdiction of
»mounts not exceeding $500. County judges, at all times open for pro
bate business, have full probate powers, nave also civil jurisdiction to
extent of $100. Justice’s jurisdiction, $100.
C re d ito rs’ B ills may be brought before claim is reduced to judg
ment, but suit at law must be first brought and judgment must be ob
tained before decree can be rendered.
Days o f G ra ce are abolished.
D ep o sitio n s may be taken upon commission when witness resides
out of the county, or is bound for sea, or is about to go out of the State to
remain until after the trial of the cause, or is very aged or infirm; or when
oath is made that a material part of the case or defense depends upon the
testimony of such witness. The time for the suing out of the commission,
the names of the witnesses, and the name of one commissioner must be
riven to opposite side a reasonable time before commission is issued.
Printed instructions for the guidance of commissioners usually accom
pany commission. Fees of not less than $5.00 a witness are to be taxed
as costs by the clerk and paid by losing party.
D escent a n d D is trib u tio n o f P r o p e r ty . Property descends: 1.
To the children and husband in equal shares. 2. If there be no children
then all to the husband or wife. 3. If there be no children, husband or
wife, then to the father. 4. If no father then to the mother, brothers
and sisters and their descendants. 5. If there be no brother or sister,
then the estate shall be divided into moieties, one of which shall go to the
oaternal, and one to the maternal branches in the following course: 1.
To grandfather. 2. To grandmother, uncles and aunts. 3. To great
grandfathers. 4. To great-grandmother, brothers and. sisters of great
grandfathers, etc., passing first to nearest lineal male and then to lineal
Female ancestors and their descendants. The estate of an infant decedent,
if derived from father’s side, shall pass to father, brothers and sisters,
and paternal relatives, and if derived from mother’s side, shall pass
to mother, brothers and sisters, and maternal relatives. Half-bloods
inherit only one-half. Adopted children are treated as children of blood.
Bastards inherit and transmit through mother’s side, as if legitimate.
Aliens have same right as citizens. There are no entailed estates nor right
of survivorship.
D ivorce. Only absolute divorces are granted, and upon the following
grounds: Insanity—when permanent, adultery, natural impotence, pro
hibited degrees of kinship, extreme cruelty, habitual indulgence in violent
temper, habitual intemperance, willful and continued desertion for one
year. Divorce obtained in another State or country; that either party has
another husband or wife living. Alimony or suit money will be granted
upon wife’s application and will be allowed upon same ground* as would
justify an absolute divorce. Party seeking divorce must have been a
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1201
resident of State for two years, except when adultery is charged any
citizen of the State may file a bill without regard to length of residence.
D ow er. The widow is entitled to one-third of the real estate for life,
and one-third of the personalty in fee simple. May within one year elect
to take a child’s part in lieu of dower.
E v id en ce. Witnesses not disqualified by reason of interest. In civil
cases, husband and wife may testify for or against each other. In suits
by or against lunatics or personal representatives, heirs-at-law, next of
km, assignee,-legatee, devisee, or survivor of a person deceased, no evi
dence of a transaction or communication be tween such lunatic or deceased
person and the opposing party or those under whom he claims, can be
given by the opposing party, unless such evidence is first offered in behalf
of such lunatic representatives, legatees, devisees, etc.
E x e c u tio n s. Executions can be issued immediately upon the entry
of the judgment and within three years thereafter, and are a lien upon
real estate from date of entry, and upon personal property from the time
the sheriff receives them. They can be renewed at any time within
twenty years from entry of judgment. Both real and personal property
are subject to sale under execution. Executions are returnable when
satisfied, sheriff reporting progress at each term. Sale day first Monday
m each month. No stay law. No redemption of property sold under
execution.
E x e m p tio n s to every head of a family residing in the State home
stead of 160 acres of land, and improvements, if in the country: one-half
acre of ground, if in an incorporated city or town, together with $1,000
worth ol personal property. The exemptions in a city or town shall not
extend to more improvements or buildings than the residence and busi
ness house of the owner. No property is exempt from sale for taxes or
assessments, or for obligations contracted for its purchase, or the erec
tion or repair of improvements thereon, or for house, field, or other labor
performed thereon. The wages of every laborer who is the head of a
family residing in the State, are exempt from garnishment.
F o re ig n C o rporations. Commercial corporations can do business
in this State without restriction. If no officer in State upon whom service
of process can be made, such service may be made upon any agent
transacting business for it in the State.
F o re ig n Ju d g m e n ts . Judgments obtained in the several courts of
the State, may be recorded in any county and have same force and effect
as if originally obtained therein. Judgments obtained in other States or
countries, merely evidence, and have to be sued upon to be made effective
as judgments.
F ra u d . (See Limitations of Actions.) Obtaining money or property
under false pretense or by falsely personating another, are punishable
criminally.
G a rn ish m e n t. (See Attachment.)
G u a ra n ty C om panies. Guaranty Companies are permitted to
become surety upon bonds for all purposes after complying with certain
statutory requirements.
H o lid ay s. Whenever reference is made, in contracts to be performed
in Florida, to legal holidays, such day shall be understood to be the days
mentioned under title Bills and Notes, and Good Friday.
H u sb an d a n d W ife. The husband has full control of wife’s property
and is not chargeable by the wife with the rents and profits. Must be
joined with wife in sale* of her property. Homestead can only be
alienated by their joint execution. Husband not liable for wife’s antenup
tial debts. Has no interest in her separate earnings. Has action for
negligence causing her death; wife’s property not generally liable for
husband’s debts. Wife may sue with respect to separate estate without
husband joining. Infant wife may join husband in sale of her real
estate.
In ju n ctio n s. Injunctions are granted without bond upon affidavit of
inability to give bond, and upon proof satisfactory to the judge that such
affidavit is true, and that the statements of the bill are true. Injunctions
are granted to stay proceedings at law; to restrain the sale of property
under execution or decree obtained against one other than the owner of
the property; to restrain the destrnction of timber by cutting, boxing, or
otherwise; to restrain a levy upon exempt property; to prevent the claim
ing of exemptions upon property not legally exempt; and to prevent the
removal from the State of mortgaged personal property.
Insolvency. Statutes suspended by national bankruptcy law.
In su ra n c e C om panies. Foreign and domestic, are placed, by statute,
under control of insurance commissioners, composed of State treasurer,
State comptroller, and attorney-general. They must annually file a state
ment with, and obtain from the State treasurer, a certificate before being
authorized to do business. Certificate may be revoked if company
refuses to pay judgments which have been legally obtained against it.
In te re s t. Eight per cent is allowed on judgments and contracts
where interest is payable but no rate is specified. Contract for more
than 10 per cent is usurious, and all interest forfeited.
J u d g m e n ts of a court of record are a lien for twenty years upon
real estate ol debtor within the county where rendered, and may be
extended to other counties by recording certified transcript of judg
ment in any county where a lien is sought. Judgments of justice of the
peace may be made a lien upon real estate by recording in the office of
clerk of circuit court.
L iens. In order to secure a lien by lis pendens, a statement must be
filed with the clerk of the circuit court, and recorded by him in a book
kept for that purpose, setting forth the names of the parties, and the
nature of the relief sought, and the description of the property upon which
it is desiredto obtain a lien. Statuatory liens are given to laborers and
material-men. Property for which materials are furnished upon which
labor has been done, is liable to persons not in privity with owner to the
extent of the unpaid balance of debt due to contractor. Owner per
sonally liable in like amount. Statutory liens upon real estate, in order
to be available as against subsequent purchasers or lienors, must be re
corded within three months, and suit must be brought within twelve
months after the furnishing of the material, or the performance of the
labor. Liens upon personal property exist only while possession is re
tained by lienor.
L im ita tio n s o f A c tio n s. Civil actions can only be commenced
within the following periods after the cause of action shall have accrued,
to wit: Actions for the recovery of real property if the adverse holding
is under color of title—actions on judgments of courts of the United
States, or of any State or Territory other than Florida itself, in seven (7)
years. Actions for recovery of real estate where the adverse holding is
merely a squatter’s claim—actions on Florida judgments—actions on con
tracts or obligations in writing under seal, twenty (20) years. On con
tracts in writing not under seal, five (5) years. Actions for any article
charged in a store account, and on all actions not herein specifically men-
1202
BANKING AND COMMERCIAL LAWS —GEORGIA.
tioned, four (4) years.' Trespass to realty, taking, detaining or injury to
chattels, for relief on the ground of fraud, upon contract not founded
upon instrument of writing, except open account for goods, wares and
merchandise, three (3) years. Actions for libel, slander, assault and bat
tery, false imprisonment and open account for goods, waxes and mer
chandise, two (2) years. Actions against railroadT companies for killing
cattle, and any action by the State for a statutory penalty or forfeiture, one
(i) yeax.
| ,
M arried W om en retain their property, real or personal, owned at
marriage or acquired thereafter bygift, devise, descent, or purchase, and
it is not liable for husband’s debts except by her written consent executed
according to law regulating conveyances of married women. Hus
band must join in all sales, transfers, and conveyances of the wife s
property, except when he has been adjudged insane for more than a year.
Wife may sue concerning her real estate without joining her husband with
her in the suit. Widow takes as dower a life estate in one-third part of
the real estate of which her husband was seized and possessed at any
time during her coverture, and an absolute one-third of all personalty;
or may at her option take as an heir equally with the children of the
husband, and if there are no children she will inherit all the property,
real and personal.
M ortgages of real estate must he executed and proved or
acknowledged in the same manner as deeds, and, to be effectual
against creditors or bona fide purchasers, must he recorded. Are fore
closed by hill in equity in the circuit court. Chattel mortgages must
be recorded, unless property is delivered to mortgagee and remains
in his possession; becomes subject to debts of mortgagee if leitm his
possession more th.&ii two years without the mortgage being recorded*
N otaries. Both men and women over twenty-one years may be
appointed notaries public. They must renew commissions every four
years. May administer oaths, take acknowledgments and perform mar
riage ceremony. $600 bond is required to be given. Certificate must
show date of expiration of commission
N otes and B ills o f E xchange. Form and interpretation defined
by statute. No requirement that it shall be made payable at a bank or
any fixed place. 5 per cent damages are allowed on foreign com
mercial paper protested in this State. Bills of exchange, bank checks,
and promissory notes which are presentable for payment or acceptance
on Sunday, New Year’s Day, Christmas Day, 3d of June, 4th of July,
22d of February, 19th of January, 26th of April, first Monday m Septem
ber, any general election day, and Saturday (except demand paper, which
may be presented before 12 o’clock Saturday unless the whole day is a
holiday), or any day appointed by the President of the United States or
by the Governor of the State as a day of thanksgiving or fasting or
prayer or other religious observance. Shrove Tuesday or Mardi Gras in
every city in which there is a carnival association organized for the pur
pose of celebrating it, shall be deemed presentable for payment or accept
ance on the secular or business day next succeeding such holiday.
P artn ersh ip , lim it e d , and Sp ecial. None.
P ow ers o f A tto rn ey . Any contract or conveyance may be made
bv power of attorney. A conveyance of a married woman’s real estate
bv power of attorney in order to be valid the power of attorney must be
acknowledged by her separate and apart from her husband, and the
acknowledgment must state that she executes it freely and voluntarily,
without compulsion, fear, apprehension, or constraint of or from her
husband. The husband must join either m the deed or powers of attorney.
Powers of attorney for the conveyance of real estate must be recorded.
P rob ate Law. ( S e e A d m i n i s t r a t i o n o f E s t a t e s . ) The county
judge has original jurisdiction of all matters relating to the administra
tion of estates of decedents.
P ro te a t. ( S e e N o t e s a n d B i l l s o f E x c h a n g e . )
Records. Records of deed and mortgages are kept in tbe office of the
clerks of the several circuit courts, and the original must be recorded m
the county within which the property lies. Wills are required to be
recorded with the several county judges and may be probated m any
county in which the deceased left property, if he dies out of the State.
If death takes place within the State, then in the county in which he has
had residence, house, or other place of abode at the time of his death,
and if he had none such, then in the county wherein he died.
R ed em p tion . None, excepting,tax sales.
R ep lev in lies for goods or chattels wrongfully taken, except when
taken for taxes,or under execution,or at suit of defendant when the property
was originally replevied from defendant and has heen delivered to plaintiff,
or when plaintiff is not entitled to possession. Affidavit must be filed,
describing property sought to be recovered, and stating that it was
not taken for any tax, fine levied by virtue of any law of the State,
nor seized under execution or attachment against the goods and. chattels
of the plaintiff; liable to execution and bond in double the value of the
property with two sureties given before the writ is issued. Defendant
may release the property within three days by forthcoming bond.
S ervice o f P rocess. Out of circuit court, made by the sheriff or
his deputy. Out of county judge’s or justice of peace courts, may be
made bv sheriff or constable. Service in civil actions may be made either
upon the person of the defendant, or by leaving a copy at his residence
with some person over fifteen years of age. ( S e e F o r e i g n C o r p o r a t i o n s . )
Su its. Actions at law are commenced by filing a precipe with the
clerk Personal service is required except in suits by attachment and
garnishment. Writs are returnable on the next rule day, provided ten
days intervene; if not, then on the rule day in the next succeeding
month. If no appearance ol defendant, default is entered forthwith.
Default may be entered for want of plea or other pleading on rule day,
next after appearance day.
T axes. Taxes are due and payable on the first Monday of November,
and if not paid by first day of April property may be sold. Owner has two
years within which to redeem. Taxes are a lien from the date of the
assessment, and have the force and effect of a judgment upon which exe
cution may issue.
T estim ony. (S e e D e p o s i t i o n s . )
T ransfer o f Stock. Stock is transferable in the manner prescribed
in the by-laws. No stock can be transferred until, after all previous assess
ments thereon have been fully paid. The transferee succeeds to all the
rights and liabilities of the pripr holder.
W arehouse R eceip ts. The warehouseman may give a receipt for
goods deposited with him, describing such goods, and such receipt is nego
tiable, and transfers title to the holder.
W ills. Any person over twenty-one years old and of sound mind
may make a will. This includes married women. Wills of real estate
must be signed by testator or some person in his presence and by his
express direction, and must have two witnesses who must subscribe in
testator’s presence. Wills of personal property must be in writing and
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
signed by the testator or some one in his presence, and by his express
direction. Nuncupative wills are good as to personal property. Revoca
tion must be in writing, attested by two witnesses. Wills must be
probated before admittance in evidence. Foreign wills, when duly pro
bated according to laws of the State, where made and duly recorded in
this State, are as effective as wills executed In this State. Foreign wills
are construed according to law of State where they are executed.
SYNOPSIS OF THE
LAWS OF GEORGIA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Ellis, Wimbish & Ellis, Attorneys at Law,
Atlanta.
(S e e
C a rd in
A tto rn e y s' L is t .)
A ccounts. Accounts bear interest from the date they become due
at 7 per cent per annum, and may be proved by the affidavit of plaintiffs,
but when sued and denied, testimony'to establish them must be pro
duced orally or by answers to written interrogatories, or by depositions
taken upon notice; but the latter method will not do for witnesses
examined outside of the county where suit is pending.
A ckn ow led gm en ts. ( S e e D e e d s . )
A otions. All distinction between suits at law and in equity is abol
ished. All suits must be brought by petition, to which process is
annexed by the clerk bearing test in the name of the court where
suit is brought. Petitions must be filed twenty days before the term of
the court, to which they are returnable, commences. Equitable relief
can be had in superior courts of law. All suits stand for trial at the
second' term, except in courts of special jurisdiction, which are
organized in some counties, and where by special statute trials may be
had at the first term, such as the city court of Atlanta. The general
rule is varied, however, in cases of suits or distress for rent. In all
suits on unconditional contracts in writing judgment will be rendered
by the court without a jury, unless the defendant tenders issue hy filing
a defense under oath at the first term. In suits on open account where
there is personal service, and no defense filed, verdicts may be rendered
without proof. Suits in justice courts are brought by summons issued
fifteen days before the meeting of the court at each monthly session.
A d m in istration o f E states. Letters of administration issue in
the line of preference, first to the husband or wife, second to the next of
kin, relations by consanguinity are preferred to those by affinity. If
there are several next of kin in the same degree, preference is given to
that one selected in writing by those most interested in the estate. If no
preference is expressed the oi dinary exercises his discretion. If no appli
cation is made by next of kin a creditor may be appointed, and if no appli
cation is made the ordinary will vest the administration in a county
administrator, an officer authorized hy statute for that purpose. Adminis
trators must give bond in double the value of the estate. Application
for administration must be published once a week for four weeks, and
administrators must advertise their appointments and give notice to
debtors and creditors. They are exempt from suit for twelve months, to
give them time to collect in the assets. They are required to make
annual returns, to-wit, in July of each vear. Out of the estate of each
deceased person, the first charge, after funeral expenses, is a year’s sup
port for the family, to be laid off by commissioners according to the
condition and standing of the family. Debts are to be paid in the follow
ing order: 1. Funeral expenses, including physician’s bills, and other
expenses of the last sickness. 2. The costs of administration and the
twelve months’ support. 3. Taxes and debts due the State and the
United States. 4. Debts due by the deceased as administrator, guardian,
or trustee. 5. Judgments, mortgages, and other liens created by de
ceased in his lifetime. 6. Debts due for rent. 7. All liquidated demands,
including foreign judgments, bonds, and other obligations in writing. 8.
Open accounts. Executors and administrators are authorized to com
promise doubtful claims, or to submit them to arbitration. Foreign
administrators may act in this State on giving bond, in a sum equal to
double the value of the estate, to the ordinary where they qualify. The
bondsmen must be residents of this State. A citizen of any other State
may act as executor of the will of a deceased citizen of this State when
he has the same interest and will give the same bond as in the case of
foreign administrators. Administrators of other States may sue in this
State by filing in the office of the clerk of the court, to which suit is
brought, a properly authenticated copy of their letters of administration.
Affidavit*. Pleas and defenses in the courts of this State which are
required to be under oath, may be made before any official of the State
or county where the oath is made, who is authorized by the laws of such
State or county to administer oaths. P r i m a f a c i e the official attestation
of the officer is evidence that he was authorized to act. Any non
resident complainant or defendant seeking equitable relief, when called
on to verify proceedings, should be sworn' before a commissioner of
this State, or a judge of a court of record where the oath is made, with
the attestation of the clerk of such court that the signature of the judge
is genuine, and that the court over which he presides is a court of record.
A lien s. The subjects of governments at peace with the United
States and this State are entitled to the rights of citizens of other
States, resident here, in so far as they accord to them the privilege of
purchasing, holding, and conveying real estate.
A p p eals. ( S e e C o u r t s . )
A rb itration . Under the law of Georgia disputes and controversies
relating to rights, or property, may be submitted to arbitration. Three
arbitrators shall be selected, and their award must be made the judg
ment of the superior court to be binding on the parties. Submission to
arbitration must be in writing and contain an accurate statement of
matters in controversy, and shall be signed by the parties or their agents,
and delivered to one of the arbitrators. Arbitrators are selected one by
each of the contesting parties, and the two thus chosen shall choose a
third, and the three thus chosen shall constitute a board of arbitration.
The board shall be swom and have the power of a court in the pro
duction of witnesses, and hearing testimony. When awards are returned
to the superior court they may be attacked by suggestion under oath that
they were the result of accident, or mistake, or fraud, and on such sugges
tion the court shall cause the issue to be submitted and tried bv a jury.
BANKING AND COMMERCIAL LAWS—GEORGIA.
A rrest. The constitution of Georgia declares that there shall be no
imprisonment for debt. But in an action to*recover personal property,
where affidavit is made by the plaintiff that he has reason to apprehend
that such property will be eloigned or moved away, or will not be forth
coming to answer the judgment or decree, the defendant will be arrested
by the officer to whom process is directed, and will be committed to jail
unless he shall give bond and good security, or deliver up the property,
or show to the satisfaction of the court that it is without his power to
produce it. Imprisonment as for contempt may be inflicted in the
administration of equity powers, but the defendant or party adjudged in
contempt may demand a jury trial on matters of fact. Attorneys,
sheriffs, and other officers of court, may be imprisoned on attachment for
failure to pay over money under order of the court.
A ssignm ents. Assignments for the benefit of creditors are per
mitted and an insolvent debtor may prefer one creditor to another, and
for that purpose may execute conveyances by deed, or may create liens by
mortgage, or sell out in payment of the debt, but a corporation which
makes an assignment is denied the right to make a preference. Assign
ments must be executed in writing ana with all the formalities of a deed,
and must be recorded as deeds are. They must include all real and personal
property and give a description thereof, and must also include all notes,
bills and books of account. They must be verified by the affidavit of the
party making such assignment. Within fifteen days after the making of
an assignment, a list of the property verified by affidavit must be filed
therewith. No property in this State shall pass by assignment of foreign
corporations unless such assignment shall comply with the requirements
of Georgia laws. Assignees must give bond upon request of three credit
ors. Preferred debts are not to be paid until sixty days after filing the
deed of assignment. Assignments can only be set aside by direct applica
tion for that purpose and the assignee and assignor are necessary parties.
On attack for fraud it shall not be necessary to prove fraud in the assignee.
No creditor is required to reduce his claim to judgment before seeking
equitable relief against assignee or assignor, or both. Creditors must be
notified within thirty days of making an assignment, and when there is
an attack made on the'assignment, creditors shall also be notified.
Accidental or innocent mistakes may be cured by amendment. Fraud
in the debtor will make the assignment void though no fraud be
found in the assignee. Assignments, or transfers, by a debtor, in
solvent at the time, of real or personal property, either in trust or in be
half of creditors, where any benefit is reserved to the assignor, or any
person for him, will be held fraudulent as to creditors, and as to them
null and void. All conveyances or transfer of real estate, whether in
writing or otherwise, and all obligations, or contracts of all descriptions
had or mads with intention to delay or defraud creditors, and such in
tention known to the party taking, shall be void as to creditors.
Voluntary conveyances made by an insolvent debtor are void. ( S e e
“ S a le s
A ttach m en ts. A summary process of attachment will lie in the
following cases: 1. Where the debtor resides out of the State., 2.
Where he is actually removing, or about to remove, without the limits of
the county. 8. When he absconds. 4. When he resists a legal arrest.
5. Where he is attempting to remove his property beyond the limits of
this State. 6. Where he has disposed of, or threatens to conceal, his
property, liable for the payment of his debts, or shall make a fraudulent
lien thereon to avoid paying his debts. Attachment will lie to recover
the purchase money of an article sold when the debtor is still in the pos
session of the property. Attachments may issue upon affidavit by the
plaintiff, his agent or attorney, who must swear that one of the state of
facts exist which authorize an attachment, and also as to the amount of
the claim. Bond and security, in double the amount sworn to, must
accompany the affidavit, and the officers require personal security. The
condition of attachment bonds is to pay the defendant all damages he
may sustain in consequence of suing out the attachment. Judges of
courts of records, justices of the peace, and notaries public, who are
ex-officio justices of the peace, can issue attachments. Nonresident
corporations are liable to attachment, and one non-resident may attach
the property of another non-resident in this State. Attachments, being
issued, may be levied on the property of the defendant or they may be
served by issuing process of garnishment. Property attached may be
replevied, and garnishments may be dissolved, by giving bond with
security, in the first instance to produce the property, in the second
instance to pay the debt in the event that the fund reaehed by garnish
ment shall be held subject thereto. The liens of attachment as between
themselves shall take rank according to priority of levy, and the lien on
such attachments will be superior to ordinary judgments rendered, in
suits filed after the attachment, but final judgments on attachments, and
ordinary judgments rendered at the same term, will be of equal dimity.
Attachments may be dismissed if party seeking the process fails to
strengthen a bond which may be required by the court on a preliminary
hearing. By statute it is declared that where attachments are served by
process of garnishment the situs of the debt is at residence of garnishee,
provided that writ of attachment shall not be used to subject in this State
wages earned out of this State by non-residents.
B anks. Any number of persons, not less than three, may form a cor
poration for the purpose of carrying on the business of banking, by filing
m the office of the secretary of the State a declaration in writing signed
by each of them, stating their names and residence, the name and style
oi the proposed corporation, the location and principal place of business
thereof, the amount of capital stock, and the number of shares into which
it is divided, the purpose and fiature of the business of the proposed cor
poration, with any other matters they may deem it desirable to state.
Such declaration must be accompanied by the affidavit of the subscribers,
verified by the ordinary of the county in which it is proposed to do busi
ness, that $15,000 ot the capital subscribed has been actually paid by
the subscribers, and that the same is in fact held, and is to be used solely
for the business and purposes of the corporation. When the declaration
is filed the secretary of State, upon application, shall certify and deliver
to such subscriber a copy of such declaration and affidavit, and the sub
scriber shall publish it in the official organ of the county in which it is
proposed to do business once a week for four weeks. When said declar
ation and affidavit shall have been published any subscriber may apply
to the ordinary to certify the fact of such publication, and upon said
certificate being filed in the office of the secretary of State he shall issue
to the subscribers, their associates and successors, a certificate of incor
poration under the seal oi the State. Such corporation, when organized,
nas power to have continual succession for thirty years, with right
of renewal; to sue and be sued; to have and use a common seal;
to appoint officers and agents; to make by-laws; to hold, purchase,
dispose of, and convey such real and personal property as may be
necessary for its uses and business; to discount bills, notes, or other
evidences of debt; to receive and pay out deposits, with or without
interest; to receive special deposits; to deal in foreign exchange; to lend
money upon personal security, or pledges of bonds, stocks, negotiable
security; to take and receive securities by mortgage or otherwise on prop
erty, real or personal. The business of the corporation shall be under
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1203
the management and control of a board of directors, to consist of not less
than three nor more than fifteen of the members of the corporation, who
must be owners and holders of one or more shares. The directors must
be elected by the stockholders, at such time and place, and for such term
as may be appointed by the by-laws. The capital stock shall be paid
in as called for by the directors. No bank shall be chartered without
a capital subscribed in good faith of at least $25,000, of which not less
than 20 per cent, and in no case less than $15,000 must be paid in before
filing the declaration with the secretary of State. The corporation shall
b'e responsible to its creditors to the extent of its capital and its assets,
and each stockholder shall be individually liable for all debts of the
corporation to the extent of his unpaid shares of stock, and shall be
further and additionally liable, equally and ratably (and not one for
another as sureties) to depositors of said corporation, for all moneys
deposited therein in an amount equal to the face value of their respective
shares. All corporations doing a banking business in this State shall
make to the State bank examiner, under oatb, statements showing the
resources of the bank or corporation, at the close of business on any day
specified by the bank examiner. No bank shall loan to its officers any
money without good collateral, or other ample security, and
when such loan exceeds 10 per cent of the capital stock it
shall not be made until approved in writing- by a majority of
the board of directors. No bank or corporation doing banking
business shall reduce its cash in hand, including amount due by banks
and bankers, and the value of all stocks and bonds actually owned and
held, below 25 per cent of demand deposits. No bank or corporation
doing a banking business shall loan to any one person, unless such loan
is amply secured by good collateral security, more than 10 per cent of its
capital stock and surplus. Whenever the capital of a bank is impaired
the shrinkage shall be charged on thé books of the bank to account
of profit and loss. In case of impaired capital the bank examiner shall
require such bank to make good its capital so impaired or reduced by
transfer from its surplus, or undivided profits, to the capital stock
of a sum to make good such impairment,’ and if there is no surplus
or undivided profits then by assessment upon the stockholders. Banks
may charge same rate of interest as individuals, and the rules of bank
discount, that is to say, taking interest in advance within the lawful rates,
have been held not usurious. The term “ bank” includes the parent
bank, its branches and agencies, its officers and agents, in construing
the violation of an obligation, or the imposing of a penalty, for the acts
of whom the bank, or branches as the case may be, is bound. No dividend
shall be declared by any bank except from the net profits, nor shall the
capital stock be applied to the purchase of its own shares. If the assets
of a bank are insufficient to pay its liabilities, a receiver when appointed
shall bring suit against the stockholders in his own name for their unpaid
subscriptions. All conveyances, assignments, transfers of stock, or other
contracts by a bank in contemplation of insolvency, or after insolvency
except for the benefit of all creditors and stockholders, shall be fraudulent
and void, unless made to an innocent purchaser lor value without notice
or knowledge of the condition of the bank, and the officers making
or consenting to such conveyances or contracts may be prosecuted
criminally. In the absence of a contract, expressed or implied, to the
contrary, the bank taking paper for collection is liable for the defaults
of its agents and correspondents to whom the paper has been entrusted
for collection. If any insolvent bank or banker, with notice of such
insolvency, shall receive money or general deposit, and fail to pay the
depositor within three days after demand, such banker or officer in charge
of the bank receiving the deposit shall be punished as prescribed in the
penal code. Suits may be brought against a bank for the acts of its
agents in any county where said bank may now have, or may hereafter
establish an agency. Most of the banks in Georgia (oiher than National
banks) are State depositaries, designated as such by special acts of the
legislature. The Stare has a special lien for all public money deposited.
B y A c t o f IQ 0
5. When any bank is indebted to any other party and
shall deposit with such party any commercial paper and collateral for
its debt, and such collateral paper shall be afterwards sent back to the
bank, to be collected and remitted, such sender shall have a lien on the
proceeds of such paper; such lien to rank with other liens according to
date, and to attach from date of collection.
S a v in g s B a n k s .
These are subject to the same rights, privileges, and
immunities as other banks, and are liable to the same pains and penalties.
Such institutions when they receive deposits, not subject to check, and
pay interest thereon, may lend money at the legal rates of interest, and
may add principal and interest together for a term of years, and divide
the amount into monthly payments, and such transactions are held not
to violate the usury law.
B ills o f Lading and Prom issory Notes. A bona fide assignee ol
a bill of lading of goods for a valuable consideration, without notice that
the same were not paid for, and the purchaser insolvent, will be protected
in his title against the seller's right of stoppage in transitu. Bills of
exchange and promissory notes made for the purpose of negotiation, or
intended to be negotiated at any chartered bank, and which are not paid
at maturity, must be protested in order to bind the endorser. Notice of
non-payment and of protest, for non-payment, or non-acceptance, must be
given to the endorser within a reasonable time, either personally, or by
post. It will not be necessary to protest in order to bind the endorser,
except in the following cases: 1. Where the paper is made payable on
its face, at a bank, or banker’s office. 2. Where it is discounted at a
bank, or a banker’s office. 3. Where it is left at a bank or banker’s office
for collection. Accommodation endorsers, sureties, and endorsers,
may be sued in the same county and in • the same action with
the maker, drawer, or acceptor. The first day of January, twentysecond day of February, twenty-sixth day of April, fourth day
of July, and twenty-fifth day of December, or any day appointed by the
governor of this State, or the President of the United States, 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 for
protesting and giving notice of dishonor of any bill of exchange, draft,
note, check, or order. Whenever such holiday shall fall upon Sunday,
the Monday next following shall be deemed a public holiday and papers
due on such Sunday shall be payable on the secular or business day next
succeeding. Whenever either of the days shall fall on Saturday, the
papers due on that day, or on the Sunday following, shall be payable on
the business day next following. Bills of exchange must be accepted in
writing to bind acceptor. In this State, a contract to pay attorneys’fees, can
not be collected unless the debtor, when served ten days before suit is filed
with a written notice of intention to sue, the amount due and term of court
to which suit will be brought, shall fail to pay such debt before return
day. A waiver of homestead in a promissory note is a bar to such a claim,
as against the collection of such note. And such waivers are almost uni
versally required in notes taken in this State. Promissory notes and
contracts containing reservation of title to personal property, must be
executed before a notary public, justice of the peace or clerk of a court of
record, and must be recorded to hold such property as against third
parties or innocent purchasers. ( S e e N o t e s a n d B i l l s o f E x c h a n g e .)
1904
BANKING AND COMMERCIAL LAWS—GEORGIA.
C h attel M ortgages and D eed s o f Trust. Chattel mortgages
must he in writing, and the execution thereof attested by a notary public
justice of the peace, or clerk of a court of record, and to be a lien as
against the rights of any person without notice they must be recorded-in the
office of the clerk of the superior court, in the county where the mort
gagor resides, and if the property is located in a county other than that
in which the mortgagor resides, the mortgage should be recorded in that
county also. No particular form is required for a chattel mortgage.
Deeds of trust are authorized, and when they cover only personal property
they should be executed with the same formality as chattel mortgages.
But when they cover real estate they should be executed with the same
formality as deeds to real estate. ( S e e D e e d s . ) Chattel mortgages may
include and cover stocks of goods changing to specifics, and may be exe
cuted so as to cover future purchases by the mortgagor. ( S e e M o r t g a g e s . )
C ollaterals. Collaterals are exempt from process oi garnishment in
the hands of the creditor. The holder of a note as collateral security for a
debt stands upon the same footing as the purchaser. Holders of collateral
securities may maintain suit thereon for their own benefit. The receiver
in a pledge or pawn note is held to be such a bona fide holder as will pro
tect him, under the same circumstances, as a purchaser, from the equities
between the parties,, but not from the true owner if fraudulently trans
ferred. Property left in pledge or pawn may be sold at public sale to the
highest bidder, upon thirty days’ notice. A different method may be
adopted by contract.
C ontracts. Ail parties in this State may make contracts, but gener
ally the contracts of married women, infants, insane persons, and drunk
ards, are void. The general rules in respect to these classes prevail.
Gaming contracts are void, and evidences of such a debt'are void: in the
hands of any person. Contracts for dealing in “ futures,” have been held
by the supreme court of this State to be gaming contracts, and void.
There is no particular form prescribed for contracts, and they may be
made in writing, or by par.ol, except where required by the statute of
frauds to be in writing.
Conveyances. ( S e e D e e d s a n d C h a t t e l M o r t g a g e s . )
C orporations. Power to create corporations in this State is vested in
the general assembly and the superior courts. Said courts may grant
charters to all corporations except banking, insurance, canal, navigation,
express, and telegraph companies aDd railroads. The general assembly
may grant charters for the corporations above enumerated, but can not
grant charters for other purposes, they being exclusively delegated, by the
constitution, to the superior courts as stated. The legislature, pursuant to
a constitutional provision, have passed uniform laws authorizing charters
for railroads and banks to be granted by the secretary of State, upon filing
petitions therefor, setting forth the objects and purposes of the corpora
tion, its place of doing business, and the capital to be employed. A
charter for a private corporation is obtained by petition to the superior
court, setting forth the object of the corporation, the particular business
it proposes to engage in, the corporate name, the amount of capital to
be employed, the place of doing business, and the time for which incor
poration is desired, not exceeding twenty years —a renewal for a like
period is provided for. The petition thus filed must be published once
a Week for thirty days, in a newspaper of general circulation, in the
county in which the court sits. The petition, and the order of court grant
ing the same, constitute the charter. In such corporations, the liability of
the stockholder is measured by the amount of stock which he holds, and
for any unpaid subscription due by him; in other words, there is no per
sonal liability. In the charters of many banks now organized, the rule of
personal liability varies, and in some banks stockholders are liable as part
ners: in others liability exists as under the general rule, viz.: to the extent
of twice the amount of stock held, and in some banks, liability exists only
to the extent of the stock and unpaid subscriptions thereon. The payment
of 10 per cent of the capital stock is necessary before commencing busi
ness. Charter privileges expire, if no organization is had thereunder for
the space of two years. General powers of corporations are conferred on
all corporations organized in this State. Charters may be forfeited by
willful violation of any of the conditions on which they are granted, or by
a misuser or a nonuser of their franchises. All corporations organized
under the laws of this State, or doing business therein, are required to
register with the secretary of State and pay one dollar or be liable to a
penalty of fifty dollars. This is in the nature of an annual return or
report and must show name, when and by what authority incorporated,
amount of capital stock, business, and principal office.
Costs. Costs are regulated as to amounts by fee-bills prescribed for the
several officers entitled thereto. They are generally payable at the end of
litigation, but a deposit of $10 is required m courts of record from non
resident plaintiffs before the filing of suits and a deposit of $6 in all divorce
cases. Costs are taxed against the plaintiff in the event of dismissal or
non-suit, and against the defendant upon judgment-or settlement.
Courts. The judicial system of this State consists of justice courts,
courts of ordinary, superior courts, and such other courts of special organ
ization and jurisdiction as the legislature may provide, a court of appeals,
and a supreme court. In the principal cities of this State, viz.: Athens,
Augusta, Atlanta, Columbus, Macon, Home, and Savannah, there are city
courts and in some other towns these courts exist. In coun ties where there
are no city courts, as a general rule, county courts exist. The terms, juris
diction, etc., of these several courts, are as follows; J u s t i c e C o u r t s hold
monthly sessions and have civil jurisdiction up to $100. In criminal matters
they are only committing courts. Suits are brought fifteen days before the
beginning of each term, and stand for trial at the first term. Appeals lie in
justice courts in cases where the amount involved is $50 or less to a jury
in the same court, and if the amount of the claim is more than $50,
either party may, as a matter of right, appeal to the superior court.
C o u r t s o f o r d i n a r y hold their sessions monthly, and have jurisdiction
over wills, and the administration of estates, of the conduct of adminis
trators, executors, and guardians. Appeals lie from this court to the
superior court. ( S e e A d m i n i s t r a t i o n o f E s t a t e s . ) C o u n t y c o u r t s have
monthly and quarterly sessions. Their jurisdiction is limited to contro
versies not exceeding $300. Certiorari lies from these courts to the supe
rior court. C i t y c o u r t s hold four sessions per annum, but the city courtof
Atlanta has sixterms, beginning with the Januaryterm. Thejurisdiction
of city courts is unlimited, except in matters of divorce, matters involving
titles to land, and administration of equitable relief under the equity pow
ers of courts. ( S e e S u p e r i o r C o u r t s . ) Review of decisions made by city
courts can only be had in the supreme court, and the method of review in
these courts is the same as is provided for review of proceedings in the
superior courts. S u p e r i o r c o u r t s —The State is divided into judicial circuits
and superior courts are the highest courts of original jurisdiction. They
have jurisdiction of all suits and controversies, and have exclusive jurisdic
tion in equity powers, divorce cases, and suits involving titles to lands, and
on the criminal side, exclusive j urisdiction of all cases involving life, or
imprisonment in the penitentiary. Superior courts have two terms each
year. In all of these courts, except city courts, justice courts, and courts
bf ordinary, cases stand for trial at the second term. Decisions of the
superior courts are reviewed by bills of exception to supreme court. The
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
court of appeals has jurisdiction of the trial and correction of errors in
law and equity from the superior courts in all cases in which such juris
diction is not conferred on the supreme court, and from the city courts of
Atlanta, Savannah, and like city courts similarly organized, but constitu
tional questions shall be certified to the supreme court. The supreme
court shall have no original jurisdiction, but shall be a court alone for
the trial and correction of errors in law and equity from the superior
courts in all civil cases, whether legal or equitable, originating therein or
carried thereto from the court of ordinary and in all cases of conviction
of a capital felony and for the determination of questions, certified from
the court of appeals.
C reditors’ B ills. Creditors’ petitions (or bills) may be filed at the
instance of any creditor, the privilege being extended to all to appear and
become parties in a reasonable time. While the funds raised under a pro
ceeding in the nature of a creditors’ bill remain in the custody of the court,
creditors having claims thereon may be made parties and assert their rights
thereto. In case any corporation not municipal, or any trader or firm of
traders, shall fail to pay at maturity, any one or more matured debts, pay
ment of which has been properly demanded of such debtor and by him
refused and shall be insolvent, it shall be in the power of a court of
equity ,under a creditors’ petition (or bill), to which one or more creditors
representing one-third in amount of the unsecured debt of such insolvent
shall be necessary parties, to proceed to collect the assets of all and every
kind and for that purpose may grant injunctions, appoint receivers and
otherwise grant all equitable relief. Any creditor may become a party to
such proceedings at any time before the final distribution of the assets.
Days o f Grace have been abolished and all promissory notes, drafts,
bills or other evidences of debt dated on or after October 1st, 1903, shall
become due and payable on the date named in the contract.
D eed s. Deeds to real estate in Georgia must be m writing, and
should be executed in the presence of two witnesses, one of whom shall be
an officer authorized for that purpose. They should be recorded in the
office of the clerk of the superior court of the county where the land lies,
and all deeds, mortgages, and other liens, should be recorded immediately
to be available against third parties and innocent purchasers. To authorize
the record of a deed to realty, it must be attested by or acknowledged be
fore, if executed out of this State, a commissioner of deeds for the State of
Georgia, notary public, clerk of a court of record, or a consul, or viceconsul of the United States (the certificates of these officers under their
seals being evidence of the fact). When the deed is executed out of this
State before a notary public, the attestation should be under his hand and
official seal; In case of acknowledgment it is better, as a matter of
precaution, always to have two witnesses, besides the officer who takes
the acknowledgment. If executed in this State, it must be attested by a
judge of a court of record of this State, or a justice of the peace, or notary
public, or clerk of the Superior court, in the county in which the three
last mentioned officers respectively hold their appointment, or if subse
quent to its execution the deed is acknowledged in the presence of either
of the named officers, that fact, certified on the deed by such officer, shall
entitle it to be recorded. [Act of 1893.] Deeds to secure loans are in
more common use than mortgages because they have been held to pass
the absolute title and protect against year’s support and dower, the equity
of redemption remaining in the maker, can not be levied upon until the
debt to secure which the deed has been made has been paid off. Under
the law of Georgia these deeds can not be foreclosed as mortgages, the
notes they are given to secure must be sued to judgment, the land must be
re-conveyed to the grantor, and then levied on, but the lien of the judg
ment relates back to the date of the conveyance. In the Federal courts,
however, foreclosure can be made in equity as in the case of ordinary
mortgages. Usury will, however, void such a conveyance.
D ep osition s. Testimony is taken in this State by written interroga
tories where the witness is a female, or where the witness does not re
side in the county where the suit is pending, or by reason of disability is
unable to attend court. In counties within this State, having a pop
ulation of over 20,000, depositions may be taken upon five days’ notice
to the other party of the time and place at which the witness is to be exam
ined. This latter process cannot be used for taking testimony outside of the
State. In taking answers to interrogatories, which must be authorized by
a commission issued for such purpose by the court here, two commis
sioners must act. Commissioners must be disinterested and not related to
either party, or connected with the case; attorneys of the parties are incom
petent. None of the parties to the case, nor their agents or attorneys, can
be present when the commission is executed. The witness can only write
his answer in the presence of the commissioners. It is usual, and the bet
ter practice, for one of the commissioners to write the answers of the wit
ness as they are given. Depositions may be written with the typewriter,
and commissioners may adjourn their sittings from day to day. The
following instructions for taking testimony are important: Instructions
for taking answers to interrogatories: 1. Insert the commissioners’ names
in the commission; any two respectable citizens will do. 2 . State the case
as you find it. Then comes the caption, thus:
(Here insert the county and State where
State of.........................I
County of......................f s s ' the commission is executed.)
By virtue of a commission from th e .......— court of ......... .. county,
we have caused the person in said commission named to come before us,
who being duly sworn true answers to make to certain interrogatories
thereto annexed, deposeth and answereth as follows: (Here insert
answers of the witnesses to each interrogatory in order.) 3. Let the wit
ness sign the answers; then say: “ Answered, sworn to, and sub
scribed Defore us, th is ........ day of
............... . 18...” Then sign your
own names, adding the words “ Commissioner (L. S.) ” after each name.
4. Seal all up together, using two wafers, each commissioner writing his
name with “ Commissioner” across a wafer or seal. 5. State the case on
the package, and address it to the clerk of the court issuing the commis
sion. 6. If it is to go by mail, get ttie postmaster to receipt on the pack
age, “ Received from one of the commissioners (giving his naine) the
within interrogatories, to be forwarded by due course of mail,” naming
his post-office Testimony thus taken must be sent by mail, or by some
person specially authorized by the commissioner to carry it to the court.
D escen t and D istribution o f P roperty. The husband is the
sole heir to his intestate wife, unless she leave children, and in that event
the husband and children shall inherit per capita, but the descendants of
children shall take per stirpe. If a man die without children, or the
descendants of children, leaving a wife, the wife is his sole heir. If there
are children, or those representing deceased children, the wife shall take
a child’s part, unless the shares exceed five in number, in which case the
wife shall have one-fifth part of the estate. If the wife elects to take her
dower, she has no further interest in the estate. Children stand in the
first degree to the intestate, and inherit equally. Posthumous children
stand upon the same footing with other children. Lineal descendants of
children stand in the place of their deceased parents, and take per stirpe,
and not per capita. Brothers and sisters stand in the second degree and
inherit if there be no widow or children, or representatives of children.
The half-blood on the paternal side inherit equally with the whole blood.
BANKING AND COMMERCIAL LAWS—GEORGIA.
The father, if living, inherits equally with brothers and sisters, and stands
in the same degree. If there he no father, and the mother is alive, she shall
inherit in the same manner as the father would. Real estate descends
direct to the heirs, and personal estate to the administrator. But real
estate is subject to administration for the purpose of paying debts, and
if necessary for distribution.
Divorces. Total or partial divorces may be granted in this State.
Suits can only be brought in the superior courts, and must be commenced
by petition. Such suits stand for trial at the second term, and there
must be two verdicts by separate juries, rendered at different terms, to
authorize a total divorce. Divorce cases shall be brought and tried in the
county where the defendant resides, if a resident of Georgia, and if the
defendant is a non-resident, suit must be brought and tried in the county
where the plaintiff resides. If the defendant is a non-resident, service
may be perfected by publication in a newspaper in which the sheriff's
advertisements are published, twice a month for two months. The jury
rendering a final verdict will fix the status' of the parties under the direc
tion of the court. Total divorces may be granted on the following
grounds: 1. For marriage by persons within prohibited degrees of con
sanguinity or affinity. 2. For mental incapacity at time of marriage. 3.
Impotency at time of marriage. 4. Force, menaces, duress, and fraud in
obtaining the marriage. 5. Pregnancy of the wife at time of marriage,
unknown to the husband. 6. Adultery in either party after mar
riage. 7. Willful and continued desertion for three gears by either party.
8. Conviction of either party for an offense involving moral turpitude,
under which he or she is sentenced to a term in the penitentiary for a
term of two years or longer. 9. Cruel treatment or habitual intoxication
by either party. In cases under this ninth division a jury may grant a
total or partial divorce, in their discretion. A residence of twelve months
in this State is necessary to entitle a party to maintain a suit for divorce!
Dower. In this State the wife is entitled to an estate for life in all
lands of which the husband dies se'zed or possessed at the time of his
death, or to which the husband obtained title in right of his wife. There
is no necessity for renunciation of dower in this State, and a married
woman, on that question, need not join with her husband in conveying
land, except in cases where, before 1866, he obtained real estate belonging
to his wife, by virtue of the marital relation. Dower may be barred by a
provision made prior to marriage and accepted by the wife, by deed or
will expressed in lieu of dower and accepted by the wife, or by election of
the widow to take a child’s part in lieu of dower, by failure to apply for
dower, within seven years after the husband’s death, by joining in a deed
with the husband to lands, the title of which came through her.
Evidence. The general common law rules of evidence prevail. The
acts of Congress as to exemplification are copied into the statutes, full
faith is given to acts and records of other States, and the existence and
territorial extent of States, their forms of government, and symbols of
nationality, the laws of nations, and general customs of merchants, the
admiralty courts of the world and their seals, the political constitution
and history of our own country, the seals of the several departments of the
government of the United States and of the several States, are recognized
without the introduction of proof; so also are the public laws of the
United States and of the several States where published by authority.
Transcripts from the books of domestic corporations may be used in
evidence.
Executlons-must follow the judgments or decrees from which they
issue. They are good for seven years, and may be renewed for any like
period by an entry of nulla bona. Executions obtained in the county of
the defendant’s residence, if entered within ten days upon the general
execution docket of such county, bind all property of the defendant within
the State from date of judgment. If entered after ten days the lien dates
from such entry. If execution is obtained in a county other than the
defendant’s residence it must be entered upon the general execution docket
of the county of defendant’s residence within thirty days to bind all prop
erty within the State from date of judgment. If entered after thirty days,
the lien dates from said entry.
E xem ptions and H om esteads. Under the constitution and laws
of Georgia, each head of a family, or guardian, or trustee of a family of
minor children, or of aged or infirm person, or a person having care and
support of dependent females of any age, who is not the head of a family,
shall have exemption of realty, or personalty,,or both, to the aggregate of
of $1,600. The homestead, to be available, must be set aside by the ordi
nary of the county in which the debtor resides, upon written application,
or petition therefor, and upon notice to creditors. This exemption of home
stead, together with improvements made thereon after the setting aside of
the same as a homestead, is exempt from levy and sale, except for taxes,
for the purchase money of the same, for labor done thereon, for mate
rial furnished therefor, or for removal of encumbrances thereon. The
debtor shall have power to waive, or renounce, in writing, his right to
the benefit of exemption above stated, except as to wearing apparel and
not exceeding $300 worth of household and kitchen furniture, and
provisions. The homestead or exemption may be sold by the debtor and
his wife, if any, with the sanction of the judge of the superior court of the
county where the debtor resides, or the land is situated. The proceeds to
be re-invested upon the same uses. A general waiver, in writing, of the
homestead, or exemption, is good.
Foreign Corporations. All corporations, except those chartered and
organized under the laws of this State, are held to be foreign corporations.
Such corporations are recognized by comity only: they are subject to
attachment, hut have all the rights of replevy and defense. They cannot
exercise any corporate powers or privileges which by the constitution and
laws of Georgia are denied to domestic corporations or the exercise of
which would be contrary to the public policy of this State. There is other
wise no restriction upon foreign corporations except in the case of insur
ance companies and building and loan associations, which are required to
make deposits. All corporations are subject to license fees for doing
business and all are liable for taxes on property owned or held in the
State. { S e e C o r p o r a t i o n s . )
Fraud. Contracts, awards, marriages, judgments, sales, and wills
are void when they are brought about and procured by fraud. Promissory
notes when procured by fraud are void in the hands of the holder, who so
procures them. The statute of frauds, as of force in Georgia, requires the
following obligations to be in writing, signed by the party, or his author
ized agent, to be binding: 1. A promise by an executor, administrator,
guardian, or trustee, to answer in damages out of his own estate. 3. A
promise to answer for the debt, default, or miscarriage of another. 3. An
Agreement made upon consideration of marriage, except marriage articles
as otherwise provided. 4. Any contract for the sale of lands, or any inter
est in or concerning them. 5. Any agreement that is not to be performed
in a year. 6. A promise to revive a debt barred by statute of limitations.
7. Any contract for the sale of goods, wares, and merchandise, in exist
ence or not in esse, to the amount of $50 or more, except the buyer shall
accept part of the goods sold and actually deceive the same or give some
thing in earnest to bind the bargain or in part payment. 8. An accept
ance of a bill of exchange.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
205
G arnishm ent. This process may be invoked in any case. After an
attachment has issued, or after a suit has been filed, or judgment ob
tained, the plaintiff, his agent, or attorney, may make affidavit that he has
reason to apprehend the loss of his debt, and upon giving bond in double '
the sum claimed to be due, conditioned to answer any damages the defend
ant may sustain in case he shall fail to recover, or in case tne funds were
not subject to garnishment, the process will issue. The bond having been
given any number of summons may issue. Garnishment may be dissolved
by giving bond, and a third party may claim a fund held up under gar
nishment and may release the fund by giving bond. Wages of day labor
ers, journeymen, and mechanics are exempt from process of garnishment.
G uaranty Companies. Guaranty companies making contracts of
fidelity insurance whereby, for a stipulated premium, they insure against
defalcation, default, neglect, or dishonesty of a trustee, officer of the law,
officers of court, agents or other employes, or such other persons as may
be required to give bond, and who guarantee the performance of such bonds
and become sureties thereon are permitted to do business and are accepted
as sureties when they have a paid up capital of $350,000, and shall have
deposited with the treasurer of this State bonds of the United States or of
this State to the amount of $25,000, such bonds to be held as'a guaranty
of performance of obligations incurred within this State.
H olidays. (S e e B i l l s o f L a d i n g a n d P r o m i s s o r y N o t e s . )
Husband and W ife. { B e e D i v o r c e s , M a r r i e d W o m e n , E x e m p t i o n ,
D o w e r , a n d A d m in is tr a t io n o f E s ta t e s .)
In junctions. This exercise of the equity powers of the superior
courts of this State is controlled and regulated according to the rules and
practice of the courts of equity in England, and under a system built up
by the decisions of the Supreme Court.
In solven t Traders, P ersons and Corporations.—Any insolvent
traders, persons or corporations, engaged in business, who are insolvent,
and who have failed or refused to pay unsecured claims on demand, may,
on the petition of one or more creditors holding claims in amount equal
to one-third of all unsecured claims, have a receiver appointed, and the
assets administered under a creditors’ bill.
In surance Com panies. Charters for insurance companies must
be issued by the secretary ol State. Any number of persons, not less
than five may form a company and apply for a charter. Upon issue of
the charter a fee of $100 must be paid to the State treasurer. The cap
ital stock must be at least $100,000, and that amount must be paid m
before commencing business The company must have a board of
directors not less than five nor more than fifteen in number. Stock
shall be deemed personalty. Charter privileges if not exercised in two
years shall cease. Charters run for fifty years. Contracts must be in
the form of written policies; no dividends shall be paid, unless the earnings
are sufficient to pay the same after deducting expenses and losses and
providing for a reserve. Mutual or co-operative companies may be
incorporated in like manner, except that they shall not be required
to set out the proposed capital stock. Life and fire insurance policies
which contain reference to applications, or to by-laws, constitutions or
rules, musr, attach to policies true copies, or in default such shall not be
admitted as evidence.
In terest. The legal rate of interest in Georgia is 7 per cent, but 8
is legal when contracted for in writing. Parties charging usury forfeit
the excess if usury is set up. And usury will render a deed void, and will
in a contract or mortgage render a waiver of homestead, or contract to
pay attorneys’ fees. void.
Ju d gm en ts create liens from their rendition upon the real or per
sonal property of the defendant; all judgments at the same term rank
equally, and property sold by a debtor after judgment is obtained against
him is only discharged from the lien of such judgment, if real estate, after
four years’ possession by the vendee, and in cases of personal property,
after two years’. Judgments, whether in the United States court, or in any
State court, obtained m any other county than that in which the defendant
resides have no lien on the property of the defendant in any other
county, unless the execution thereon is recorded within thirty days, in
the county of the defendant’s residence. { S e e A c t i o n s . )
Ju risd iction . { S e e T i t l e C o u r t s . )
License. No license is required of commercial travelers. Itinerant
traders must pay license fees.
Elens. Under the laws of Georgia mechanics, material-men, machin
ists, employes of steamboats, millwrighls, builders of gold mine machines,
stone-cutters, and marble works laborers have special liens on property
improved or worked on. Landlords have a general lien which takes
effect from the levy of distress and a special lien on crops for rent of
land on which they are raised. Common law liens of innkeepers, factors,
pawnees, carriers, attorneys and others are recognized. Vendor’s lien on
land has been abolished. Attorneys have a special lien on papers in
their hands and on property recovered in suits brought by them or suc
cessfully defended by them.
,<
L im itation s. Suits on open accounts are barred after four years, on
promissory notes and bills after six years, on instruments under seal after
twenty years, on suits for personal ipjury after two years. Seven years’
adverse possession of real estate under color of title, and twenty years’ ad
verse possession without color of title, will bar thé claims of all persons
not laboring under disability. Infants have seven years to assert their
rights, after becoming twenty-one years of age.
M arried W om en. The wife may contract and sue and be sued in
her own name in respect to her separate estate as a f e m m e s o l e , except that
she can not bind her separate estate by suretyship for her husband, and
any promise to pay her husband’s debt is void. She cannot sell to her
husband or trustee for any purpose, except by order of the superior court.
A wife or her heirs may sue and recover from any person money or prop
erty used by her husband to pay his debt where the creditor takes with
notice. All the property of the wife at the time of marriage, and all she
may acquire by gift, inheritance, or purchase, shall vest in and belong to
her, and shall not be liable for the debt, default, or contract of her hus
band. The wife with her children, if any, is entitled to twelve months’
support out of the estate of her deceased husband. The husband is bound
to support and maintain the wife, and his consent is presumed to her
agency in the purchase of necessaries. The wife’s separate property is
not liable for debts contracted by her as agent of her husband in the ordi
nary support of herself and children, but by special contract in her own
capacity, and not as agent for her husband, she could bind her separate
estate, for that purpose. A married woman can dispose of her property
by will.
M ortgages. Mortgages pass no title, and are only security for debts.
They may embrace real or personal property in the mortgagor’s posses' sion, or to which he has a right of possession. They may cover a stock of
goods in bulk, but changing in specifics, and by the act of December, 1899,
may cover after acquired property. No particular form is necessary
to constitute a mortgage, whether on real or personal property, but it
must be clear that the Instrument indicates a lien, describes the property
1206
BANKING AND COMMERCIAL LAWS—IDAHO.
upon which it is to operate, and specifies the debt it secures. Mortgages
on land are not good against dower, and a wife cannot waive her dower
as against this lien. Mortgages must he executed and attested in the
same manner as deeds, except that in mortgages on personal property,
only the official witness is necessary. Mortgages with powers of sale are
valid in Georgia. Chattel mortgages are foreclosed by affidavit, and exe
cution will issue at once, by the clerk of the superior courts. An affidavit
to foreclose a mortgage must have the original mortgage, or a copy
thereof, annexed thereto, and the affidavit must state the amount of
principal, and interest due, and that the mortgagor resides in the county
where' foreclosed, if residing in this State, or if not, then in the county
where he resided at the date of the mortgage. Where the debt does not
exceed $100 affidavit may be made and execution may be issued by a
justice of the peace. Mortgages upon realty are foreclosed in superior
courts of the county where the land lies upon a rule nisi directing the
principal, interest, and cost, to be paid into the court on, or before, the
first day of the next term. This rule is published once a month for four
months, or served on the mortgagee, or his agent, or attorney, three
months previous to said first day of the next term. If no valid defense
is set up the rule is then made absolute and judgment rendered. The
property must be sold by the sheriff at public sale after advertisement
once a week, for four weeks. Homestead and exemption may be waived
in the mortgage, otherwise a homestead may be taken out of the proceeds
of such a sale. Personal property may be sold, and title retained in the
seller, until the purchase price is paid. But to be valid as against third
parties the contract must be in writing, executed, and attested and re
corded in the same manner as chattel mortgages. All mortgages on per
sonal property or real estate must be recorded in the office of the clerk of
the superior court to be good against third parties, and bona fide pur
chasers without notice. No time is named, for recording mortgages or
deeds, but they should be recorded at once to be good, except as between
the parties.
N otaries. Commercial notaries are appointed for four years by the
superior courts. They must have seals and are authorized to attest
deeds and mortgages, and make protest of commercial paper.
N otes and B ills o f E x c h a n g e . ( S e e B i l l s o f L a d i n g a n d P r o m i s
s o r y N o t e s .)
Promissory notes are negotiable by endorsement of payee,
or holder, notes payable to bearer are transferable by delivery only.
Bonds, specialties, contracts, bills of lading, and warehouse receipts, are
negotiable by endorsement or written assignment in the same manner
as bills of exchange and promissory notes. Endorsements may be limited
by express restrictions. Acceptances of bills must be in writing. Trans
ferers of negotiable instruments warrant that they are the lawful holders,
have the right to sell, and that the instrument is genuine. Bona fide
purchasers of negotiable paper taking the same for value before due, and
without notice, are protected against any defense, except: 1. Non est
factum. 2 . Gambling, or immoral or illegal consideration. 3. Fraud
In its procurement by the holder. Maturity gives notice of dishonor.
No days of grace are allowed on sight papers, all others are entitled
thereto.
P artn ersh ip . The common-law rules governing partnership prevail.
Each partner is individually liable for ail the firm’s debts. Special or
limited partnerships are permitted, and npon proper notice and publi
cation the special partner is only liable to the extent of his contribution
to . the firm capital. His name must not appear in the partnership,
except that he may be advertised as a special partner. There is no
distinction between special and limited partnerships. Special partner
ships may be formed for any lawful business except banking and in
surance.
P rob ate l a w . ( S e e A d m i n i s t r a t i o n o f E s t a t e s , D e e d s a n d M o r t g a g e s . )
P ro tests. ( S e e B i l l s o f L a d i n g a n d P r o m i s s o r y N o t e s . )
R ecords. ( S e e D e e d s a n d M o r t g a g e s . )
R edem ption. There is no redemption in this State under judicial
sales except in case of sale of property under tax execution wheie parties
may redeem in twelve months.
_R ep lev y . All property seized under attachment, distress, or other
similar process, may be replevied. Property seized under process and
claimed by the third party maybe delivered over upon bond and security
for its forthcoming to answer final judgment of decree.
R evision. ( S e e C o u r t s . )
Sales. Sales may be made to pay debts, but any sale of stocks of
goods in bulk is deemed fraudulent unless the seller delivers to the
buyer a list of all'creditors and the amount due each. It shall then be
the duty of the buyer to notify tbe creditors of his purchase. This notice
must be mailed five days before completion of the purchase.
S ervice. Service of process issuing from courts of record must be
made by a sheriff or his deputy five days before thé meeting of the court
to which it is returnable. ( S e t ,C o u r t s . )
Suits. ( S e e A c t i o n s . )
T a x e s. Taxes are a lien upon all the property of the debtor, real or
personal, and its lien is preferred as stated in section herein relating to
distribution of the estates. Sales of property for taxes are conducted in
the same manner as other judicial sales. One year in which to redeem is
allowed.
T estim ony. ( S e e E v i d e n c e a n d D e p o s i t i o n s . )
Transfer o f Stock in Corporations. Stock in corporations can
be transferred by written assignments of the certificates. Whenever a
stockholder is individually liable under the charter, and shall transfer his
stock, he shall be exempt from such liability unless such.corporation
shall fail within six months after such transfer. The stockholder in
whose name the capital stock stands upon the books of the corporation
at the date of its failure shall be primarily liable to respond on his indi
vidual liability, but on proof that any shareholders at the date of the fail
ure are insolvent, recourse may be had against the person from wnom such
insolvent shareholder received his stock if he purchased within six
months of the date of the failure. Foreign executors, administrators or
guardians may transfer stock in a Georgia corporation by filing a certified
copy of his appointment and qualification, and by advertisement once a
week for four weeks of his intention to transfer; each advertisement to
be published in that newspaper in which sheriff’s sales are published.
T rust C om panies. Trust companies may be Chartered by the sec
retary of State. At least $25,000 must be paid in. Notice of intention to
organize must be published. They are authorized to make contracts, to
sue and be sued, to act as fiscal agents, to receive and disburse money, to
receive deposits of trust money and other property and to loan money on
real or personal security; to buy, sell, and lease real estate; to act as
trustee for bonds; to accept and execute trusts for married women, to act
under appointment of courts as guardian, trustee or receiver; and to
accept and execute other powers and duties conferred upon them.
Usury. ' ( S e e D e e d s , M o r t g a g e s , a n d I n t e r e s t . )
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
W arehouse R eceip ts. Bonded warehouses are authorized and
they are required to issue receipts for goods stored, which receipts are
negotiable.
W ills. All persons of full age and sound and disposing memory,
Including married women, may make wills, and dispose of their estates.
Wills must be executed in the presence of three witnesses, all of whom
shall be present, must be called by the testator as witnesses, and must
sign, and shall certify that they signed, in the presence of the testator, and
in the presence of each other. Wills must be In writing, except nuncupa
tive wills. Wills of citizens of other States, where executed according to
the laws of the State, and probated in solemn form in such State, which
dispose of real or personal property in Georgia, may be admitted to pro
bate in this State, when an authenticated copy of the will is presented,
accompanied by a certificate of the governor of such State, under the seal
of the State, that the official of the court where such probate was made,
had original jurisdiction of the subject-matter. Wills are probated in the
court of ordinary in the county where the testator resides at the date of
his death. All wills executed out of this State by citizens of this State
to dispose of property in Georgia must be executed according to our law.
SYNOPSIS OF THE LAWS OF IDAHO
R E L A T IN G
TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Richards & Haga, Attorneys at Law,
Boise City. ( S e e C a r d i n A t t o r n e y s ' L i s t . )
A ccou n ts. No proof of account required in the first instance in
order to commence suit. On trial the claim must be sustained by the
testimony of competent witnesses given orally, or by deposition taken
under statutory regulation. Upon default verified account will support
judgment.
A ck n o w led g m en ts. All conveyances and other instrument«
required to be acknowledged in this State must be acknowledged, if
within the State, before a judge or clerk of a court of record, a county
recorder, a notary public, or a justice of the peace. If without the State,
but within the United States, they must be acknowledged before any such
officer, or a commissioner of deeds for this State, or before any officer
authorized by the laws of this State or Territory to take such acknowl
edgment. If without the United States, they must be acknowledged
before a minister or charge ¿’affairs of the United States, resident and
accredited in the country where the acknowledgment, is taken, before a
consul or vice-consul, a judge of a court of record, a duly appointed com
missioner, or a notary public. The certificate of acknowledgment, if
made before a justice of the peace, when used in any county other than
that in which he resi¿es, must be accompanied by a certificate, under the
hand and seal of the recorder of the county in which the justice resides,
setting forth that such justice, at the time of taking such acknowledg
ment, was authorized to take the same, and that- the recorder Is
acquainted with his handwriting, and believes that the signature is gen
uine. Proof of the execution of an instrument may be made though it
has not been acknowledged. Married woman’s acknowledgment, for the
conveyance of the family homestead and community property used as a
residence, must be taken upon an examination without the hearing of
her husband. ( S e e C o n v e y a n c e s . )
A ction s. There is but one form of civil action in this State. An
action is commenced within the meaning of the statute when the complaint
is filed with the clerk. Every action must be prosecuted in the name of
the real party in interest.
A d m in istration o f D e ce d e n t’s K state. Wills must be proved
and letters testamentary or of administration granted: In county where
decedent was resident at the time of his death; in county in which
decedent may have died, leaving estate therein, he not being a resident
of State; in county in which any part of estate may be, decedent having
died out of State and not resident thereof at the time of his death; in
county in which any part of estate may be, decedent not being resident
of State and not leaving estate in county in which he died; in all other
cases, in county where application for letters is first made. Letters to
administration upon estate of an intestate are granted in following order:
To surviving husband, or wife, or some other competent person whom
he or she may appoint; children; father or mother; brothers; sisters,
grand children; next of kin entitled to share in distribution of estate;
any kin; public administrator; creditors; any person legally compe
tent. Before letters of administration are granted, administrator must
execute a bond to State, with two or more sufficient sureties, approved
by probate judge, in double value of personal property and annual rents
and profits of real estate, conditioned for faithful discharge of his duties.
An inventory and appraisal of estate shall be made and filed by executor,
or administrator, after valued by appraisers appointed by court. Execu
tors and administrators, immediately after appointment, must publish
notice for claims in newspapers designated by court. Time expressed
in notice must be ten months from its first publication, when estate
exceeds $1,500; four months when it does not. Claims arising upon a
contract, whether same be due, not due, or contingent, must be pre
sented in time limited in notice, and claim not so presented is barred
forever, provided, that when it appears to satisfaction of court claimant
had not notice, it may be represented at any time before decree of distri
bution entered. All claims must be sworn to and must be allowed or
rejected by executor or administrator. When claim is rejected, either
by executor, administrator, or probate judge, suit must be brought
within three months after date of its rejection, or within two months
after it becomes due, otherwise claim forever barred. Executor or
administrator may refer doubtful claims to some disinterested person
approved by probate judge. At third term of court after his appoint
ment, and thereafter at any time when required by court, executor or
administrator shall account. Debts of intestate must be paid in following
order: 1. Funeral expenses. 2. Expenses of last sickness. 3. Debts
having preference by laws of United States. 4. Judgments rendered
against decedent in his lifetime, and mortgages in order of their date.
Property of estate succeeds as follows, in absence of will and after debts
are paid: 1. If decedent leaves surviving husband or wife, and one
child or its issue, in equal shares to wife or husband and child, or its
issue. If husband or wife and more than one child living, or one child
living and lawful issue of one or more, one-third to husband or wife
and remainder in equal shares to children. Issue of children take their
share. If no husband or wife survive, whole estate goes to issue. 2. If
there be no issue, estate goes one-hall to husband or wife and one-half to
father or mother, survivor taking share of other. If there be no father or
mother, one-half then goes to brother or sister and to their children, if
either be dead, by right of representation. If there be no issue, husband,
BANKING AND COMMERCIAL LAW'S—IDAHO».
or wife, estate goes to father and mother equally or to survivor. 3. If
there he no issue, husband, wife, father, or mother, then estate goes to
brothers and sisters equally or to their issue. 4. If there be husband or
•wife, but no issue, father, mother, brother, or sister, whole estate goes
to husband or wife. 5. If there be neither issue, husband,’wife, father,
mother, brother, or sister, estate goes to next of kin.
Affidavits are used only to verify pleadings, to prove service of sum
mons, notice, or other paper, to obtain provisional remedy.
A liens (except such as have declared their intention to become citizens)
and corporations (except railroad and mining), whose members are not
exclusively citizens or persons who have declared their intention to be
come such, shall not acquire any land, other than mineral lands, or such
as may be necessary for the working of mines or the products thereof.
They may take liens on real estate, and acquire title thereto by enforc
ing the same. They take by succession as citizens; non-resident aliens
must appear and claim succession within five years. All lands, except
mining lands acquired by inheritance or enforcement of lien, must be
sold within five years or they escheat to the State.
A rbitration. Persons capable ‘of contracting may submit to arbitra
tion any controversy which might be the subject of a civil action between
them, except a question of title to real property.
Arrests. The defendant may be arrested in a case for the recovery of
money or damages on a cause of action arising upon a contract, express or
implied, when the defendant is about to depart from the State with in
tent to defraud his creditors; also for money or property embezzled or
fraudulently misplaced by a public officer or any person in a fiduciary
capacity or when the defendant has been guilty of fraud in contracting
the debt, or in concealing or disposing of persona* property, for the taking
or conversion of which the action is brought; or when the defendant has or
is about to remove or dispose of his property with intent to defraud his
creditors.
A ssignm ents and In solven cy. An insolvent debtor may be dis
charged of his debts by executing an assignment of all his property, real
and personal, which, with a sworn inventory of property and schedule of
creditors, must be filed in the district court. At a creditors’ meeting,
held after thirty days’ notice given, one or more assignees, not exceeding
three, are appointed, and claims proved. Court will set aside property
exempt, and issue order for direct payment of money, where no mort
age or pledge had been given, or where such security, if given, has
een rendered negatory by act of defendant. Plaintiff must furnish
bond, with two sufficient sureties.
A ttach m en ts. The plaintiff at the time of issuing the summons, or
at any time afterwards, may have the property of the defendant attached
as security for the satisfaction of any judgment that may be recorded,
unless the defendant give security to pay such judgmenc, in the follow
ing cases: 1. In an action upon a judgment, or upon contract, express
or implied, for the direct payment of money, where the contract is not
secured by any mortgage or lien upon real or personal property, or any
pledge of personal property. 2. In an action npon a judgment, or upon
contract, express or implied, against a defendant not 'residing in this State.
Debt must be due to support attachment. Garnishment process may issue
in aid of attachment or execution and the garnishee must make answer
under oath. Defendant in a civil action for recovery of money or dam
ages, under a contract, express or implied, may be arrested, when about
to depart from the Territory with intent to defraud, or when the debt or
obligation was fraudulently contracted. Before issuing the writ the
clerk must require a written undertaking, on the part of the plaintiff,
in a sum not less than two hundred dollars, ana not exceeding the
amount claimed by the plaintiff, with sufficient sureties, to the effect
that if the defendant recover judgment, or it the attachment be wrong
fully issued, the plaintiff will pay all costs that may be awarded to the
defendant, and all damages which he may sustain by reason of the attach
ment, not exceeding the sum specified in the undertaking; and two days
after issuing such writ, and delivering it to the proper officer, the clerk
must post at the front door of the court house and cause to be published
in some newspaper published in the county, if there he one, a notice
setting out the title of the cause and the fact that an attachment has been
issued against the property of the defendant. Such notice shall be kept
posted at least ten days, and shall be published, if a weekly paper, in three
issues thereof, and if any other than a weekly paper in at least six issues.
Any creditor of the defendant, who within sixty days after the first post
ing and publication of such notice, shall commence and prosecute to final
judgment his action for his claim against the defendant shall share pro
rata with the attaching creditor in the proceeds of the defendant’s prop
erty where there is not sufficient to pay all judgments in full against him.
B anks and B an k in g. Idaho has a full and complete law upon the
formation and regulation of banks and the formation of banking corpo
rations. No banking corporation can have less than five directors. All
hanks, other than national banks, are under the supervision of the bank
commissioner. . The banker has a general lien, dependent upon posses
sion, upon all property in his hands belonging to a customer for the bal
ance due him from such customer in the course of the business.
B ills o f E xch an ge. Days of grace not allowed. ( S e e N o t e s a n d
B ills .)
B ills o f h ad in g. No statutory provisions governing the same.
Chattel M ortgage. ( S e e M o r t g a g e s . )
Collaterals. No statutory regulation.
Contracts. All persons are capable of contracting except minors,
persons of unsound mind, and persons deprived of civil rights. A writ
ten instrument is presumptive evidence of a consideration. All con
tracts may be oral, except such as are specially required by statute to be
in writing. All distinctions between sealed and unsealed instruments
are abolished. Where a contract is partly written and partly printed, the
written part controls the printed part.
Conveyances. Real estate is conveyed by instrument in writing,
subscribed by the party or his authorized agent in writing. The homestead
of a married person, or community property, occupied as.a residence, can^
he conveyed only by both husband and wife joining in the execution, and
acknowledgment by the wife upon an examination separate and apart
from her husband. During the continuance of the marriage the wife has
the management, control, and absolute power of disposition of her separate
property, and may bargain, sell, and convey her real and personal property,
and may enter into any contract with reference to the same, in the same
manner and to the same extent and with like effect as a married man may
in relation to his real and personal property. An instrument purporting to
grant real property to take effect upon condition precedent, does not pass
the estate upon the performance of the condition. Such instrument is
merely an executory contract. ( S e e A c k n o w l e d g m e n t s . )
Corporations. Private corporations may be formed by five (5) or more
persons, at least one of whom must be a bona fide resident of this State.
Such corporation is formed by executing articles of incorporation, con
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1207
taining: 1. The name of the corporation. 2. The purpose for which it is
formea. 3. The p’ace where its principa1business is to be transacted. 4.
The term for which it is to exist (not exceeding fifty years). 5. The num
ber of its directors or trustees, not exceeding fifteen, who must be stock
holders of the corporation. 6. The amonnt of the capital stock and the
number of shares into which it is divided. 7. The amount actually sub
scribed. and by whom. The articles may provide for the election of onethird of its directors annually. Railroad, wagon road, telegraph and
telephone corporations must also state in their articles: 1. The kind of
road, telegraph or telephone line intended to be constructed. 2. The
place from and to which it is intended to be run, and all the intermediate
branches. 3. The estimated length of the road or line. 4. They may
provide in their articles the number of directors which shall constitute a
quorum for the transaction of business, the decision of the majority of
such quorum to be a valid act. 5. Whether meetings of the board shall
be held within or without the State. 6. Whether stockholders shall be
individually liable for debts of corporation. Railroad corporations
must have subscribed, before filing articles, $1,000 per mile; wagon road
corporations, $300 per mile; telegraph corporations, $100 per mile, and
the articles must be verified by affidavit of president, secretary, or treas
urer named in articles, that such stock has been subscribed. All articles
of incorporation must be filed in the office of the county recorder, In
which the principal place of business is located, and a copy thereof cer
tified by the recorder, filed with the Secretary of State.
Corporations, F oreign. Foreign corporations desiring to do busi
ness in this State, may have all the rights and privileges of like
domestic corporations, by filing with the secretary of State, and in the
office of the clerk of the district court in the county where the principal
place of business of such corporation is to be conducted, a copy of their
articles of incorporation, and the designation of some person, residmg in
the county in which such principal place of business is to be located upon
whom process issued by authority of or under any law of this State may
be served.
Costs. When the plaintiff in an action is a non-resident, security for
the costs may be required by the defendant.
Courts. T e r m s a n d J u r i s d i c t i o n . The judge of the district court of
each of the judicial districts of the State must annually fix the time for
holding the district court in the several counties of his district by an
order filed and entered by the clerk in each county of his district and said
order must be published two consecutive weeks in anewspaper published
in his district; and he may hold such special terms as he deems proper
and necessary, by an order published in the newspaper in the county
where he is to hold, such special term, two consecutive weeks, and have
original j urisdiction in all civil cases involving over $100. Probate courts
are held in each county once a month, and have concurrent jurisdiction
up to $500, including actions to enforce liens and mortgages upon real
and personal property, and concurrent jurisdiction with Justice’s courts
in all cases. Justice’s jurisdiction, $300.
JOays of Grace abolished hy the statute.
D eed s. ( S e e C o n v e y a n c e s . )
D epositions may be taken before any judge, justice of the peace,
notary public, or United States commissioner, or any other person agreed
upon by the parties, upon notice served upon the opposite party, stating
the court, action, time, and place, and before whom the same will be
taken, or they may be taken upon commission issued by the judge with
interrogatories attached.
D escen t and D istribution. Estate of intestate passes in the fol
lowing order, subject to the debts of the decedent: 1. If surviving hus
band or wife, and only one surviving child, in equal shares to each; if
more than one surviving child, then one-third to surviving husband or
wife, and the remainder in equal shares to the children, or the issue of such
as may be dead; if no surviving husband or wife, then in equal shares to
the children, or the issue of such as may have died. 2. If no issue sur
vive, one-half to the surviving husband or wife, and the other half to the
decedent’s father and mother, in equal shares, but if either be dead, then
the whole of said half goes to the survivor of the other; if no father or
mother survive, then one-half goes to the brothers and sisters, or to the
issue of such as may be dead, in equal shares; if no husband, nor wife, nor
issue survive the decedent, then the whole goes to the father and mother,
if both survive, in equal shares, but if one be dead, the whole estate goes
to the other. 3. If neither husband, wife, issue, father, nor mother sur
vive, in equal shares to his brothers and sisters, or the issue of anjr that
may be dead. 4. The whole estate goes to the surviving husband or wife, if
no issue, father, mother, brother, or sister survive. 5. If neither husband,
wife, issue, father, mother, brother, sister, nor issue of brother or sister
survive, in equal shares to the next kin in equal degree; but in case of col
lateral kindred claiming through different ancestors, those who claim
through the nearest ancestor are preferred. _6. If more than one child,
and one child dies while a minor and unmarried, his share goes in equal
parts to the other children, or the issue of such as are dead. 7. If deeddent was a widower or widow, and leave no kindred, that portion of his
estate which was common property at the death of his deceased spouse
goes to the father of such deceased spouse, if living, or if such father be
dead, to the mother; but if neither the father nor mother of such deceased
spouse be living, then to the brothers and sisters, or the issue of such as
are dead, in equal parts. 8. If no husband, wife, or kindred, the estate
escheats to the State for the benefit of the school fund. (Rev. Stats., Sec.
5702.) Illegitimate child may be acknowledged by father in writing, signed
by him in presence of competent witness, and then takes by descent. Illegiti
mate child takes from mother, and mother from illegitimate child. Kin
dred of half blood take equally with those of the full blood in same degree.
Advancements are a part of distributive share. Husband and wife take
one from the other, only as to the separate estate of either, by inheritance.
The husband succeeds to all the common property in case of death of the
wife. If the husband dies, the wife succeeds to one-half of the common
property, and the other half is subject to his testamentary disposition; but
if intestate, then it goes to his descendants in equal degree equally.^ Analien takes by inheritance, but must appear and claim his share within
five years from death of decedent. All property owned by husband or
wife, at date of marriage, or that comes to either by gift, descent, or be
quest afterward, is the separate property of the one who so owned or re
ceived same; all other property is common property. (Rev. Stats., Secs.
5700 to 5715 inclusive.!
D ivorce. Marriage may be annulled for any of the following causes
pointing at time of marriage: 1. Person when married was not of the age of
lesal consent, and such marriage was contracted without the consent of
his or her parents, or of the person having charge of him or her, unless
after attaining the age of consent such party for any time freely lives
and co-habits with the other as husband and wife. 2. That the former
husband or wife of either party was living, and the marriage with such
former husband or wife was then in force. 3. That either party was of
unsound mind, unless such party, after coming to reason, freely co-habits
with the other as husband or wife. 4. That the consent of either party
was obtained by fraud, unless such party afterward, with full knowledge
1208
BANKING ANÏ> COMMERCIAL LAWS—IDAHO
of the facts constituting the fraud, freely co-habits with the other as hus
band or wile. 5. That the consent of either party was obtained by force,
unless such party afterward freely co-habited with the other as husband or
wife. 6. That either party was, at the time of the marriage, physically in
capable of entering into the marriage state, and such incapacity continues
and appears to be incurable. A judgment of nullity of marriage is con
clusive only as against the parties to the action, and those claiming under
them. Divorces may be granted for any of the following causes: 1.
Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. Willful neg
lect. _5. Habitual intemperance. 6. Conviction of felony. 7. Perma
nent insanity. Persons applying for divorce must have been a resident of
this State for six months immediately preceding the commencement of
such action.
D ow er does not exist.
E vidence. No person is disqualified as a witness in any case by reason
of his conviction of a crime. Any party to a suit can compel the adverse
party to testify as a witness on the trial, within the jurisdiction of the
court. .
E m p loyers and E m p loyes. All persons employing mechanics or
laborers in working mines, erecting or repairing buildings, constructing
canals, railroads, etc., must make, record, and publish a statement, under
oath, setting forth the following: The name of the owner of the prem
ises where work is being done or upon which it is intended to begin
work; the name of the person or company engaged in or who contem
plates engaging in work upon such premises; the conditions under which
such person or corporation is prosecuting the work as agent, owner, etc.;
the principal office of the owner and the agent in this State; the time and
place where payment of laborers and mechanics will be made. A copy
of this statement must be posted at the place where work is prosecuted.
E xecu tion s issue at any time within five years after judgment. The
only stay is by appeal, with secured bond. One year allowed for redemp
tion.
E x em p tio n s. Homestead, not exceeding $5,000, if duly acknowledged
and recorded; office furniture and library, $200; necessary household and
kitchen furniture not exceeding in value $300, and provisions for family
for six months; certain tarm animals, etc., with food for six months;
and water right for 160 inches, when actually used in irrigation; also crops
growing or grown on fifty acres of land, leased, owned or possessed by
the person cultivating the same; tools or implements of mechanic neces
sary for his trade of the value of $500; all instruments of surgeons,
etc.; also all professional libraries: miner’s dwelling of value of $500, and
his pipes, cars, etc., of the value of $200; pack animals and equipments,
not exceeding $250: team, wagon, etc., of drayman; the personal earnings
of a debtor within thirty days preceding levy, where earnings are neces
sary for use of family, residing in this State; the shares held by parties of
the Building & Loan Association to the value of $1,000; provided, such
person has no homestead; all benefits arising out of life insurance, rep
resented by an annual premium of $250; all property of fire companies.
All the above .property may be sold under foreclosure of mortgage, which
includes same.
F oreign Jud gm en ts. ( S e e J u d g m e n t s . )
Fraud, Statutory. No estate or interest in real property, other than
for leases for a term of not exceeding one year, nor any trust or power
over or concerning it, or in any manner relating thereto, can be created,
granted, assigned, surrendered, or declared, otherwise than by operation of
law. or a conveyance or other instrument in writing, subscribed by the
party creating, granting, assigning, surrendering or declaring the same, or
by his lawful agent thereunto authorized by writing. The preceding sec
tion must not be construed to affect the power of a testator in the disposi
tion of his real property by a last will and testament, nor to prevent any
trust from arising or being extinguished by implication or operation of
law, nor to abridge the. power of any court to compel the specific perform
ance of an agreement, in case of part performance thereof. In the following
cases the agreement is invalid, unless the same or some note or memorandum
thereof be in writing and subscribed by the party charged, or his agent.
Evidence, therefore, of the agreement can not be received without the
writing or secondary evidence of its contents: 1. An agreement that by
its terms is not to be performed within a year from the making thereof. 2.
A special promise to answer for the debt, default, or miscarriage of another,
except in the cases provided for in the next section. 3. An agreement
made upon consideration of marriage, other than a mutual promise to
marry. 4. An agreement for the sale of goods, chattels or things in
action, at a price not less than $200. unless the buyer accept and receive
part of such goods and chattels, or the evidences or some of them, of such
goods in action, or pay at the time some part of the purchase money; but
when a sale is made by auction, an entry by the auctioneer in his sale
book, at the time of the sale, of the kind of property sold, the terms of
sale, the price and the names of the purchaser and person on whose
account the sale is made, is a sufficient memorandum. 5. An agreement
for the leasing for a longer period than one year, or for the sale of real
property, or of an interest'therein, and such agreement, if made by an
agent of the party sought to be charged, is invalid, unless the authority of
the agent be in writing, subscribed by the party sought to be charged. A
promise to answer for the obligation of another, in any of the following
cases is deemed an original obligation of the promisor, and need not be in
writing: 1. Where the promise is made by one who has received prop
erty of another upon an undertaking to apply it pursuant to such promise;
or by one who has received a discharge from an obligation in whole or in
parts in consideration of such promise. 2. Where the creditor parts with
value, or enters into an obligation, in consideration of the obligations in
perfect to which the promise is made, in terms or under circumstances
such as to render the party making the promise the principal debtor, and
the person in whose behalf it is made his surety. 3. Where the promise,
being for an antecedent obligation of another, is made upon the considera
tion that the party receiving it cancels the antecedent obligation, accepting
the new promise as a substitute therefor; or upon the consideration that
the party receiving it releases the property of another from a levy, or his
person from imprisonment under an execution on a judgment obtained
upon the antecedent obligation; or upon a consideration beneficial to the
promisor, whether moving from either party to the antecedent obligation,
or from another person. 4. Where the factor undertakes, for a commis
sion, to sell merchandise and guarantee the sale. 5. Where the holder of
an instrument for the payment of money, upon which a third person is
or may become liable to him, transfers it in payment of a precedent debt of
his own. or for a new consideration and in connection with such transfer,
enters into a promise respecting such instrument.
G arnishm ent. Any personal property or credits in the hands of
another, belonging to the defendant, is subject to garnishment, as are
debts owing to him from another if due. (R. S. Secs. 4309, 4310.)
G uaranty C om panies. Trust companies, guaranty title, abstract,
and safety deposit companies, may incorporate under the laws of this
State, with power to furnish abstracts of title to real estate, guarantee the
title, receive and hold on deposit and in trust and as security, real and per
sonal estate, to act as trustees, assignees, receivers, guardians, executors,
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
administrators; to take, accept, and execute trusts, receive deposits of
money and other personal property; invest their funds in real and personal
securities by loan or otherwise, to act as the fiscal or transfer agent of any
State, or any body politic or corporation, to purchase and sell real estate
and to take charge of same; to become security for the payment of all
damages for lands taken in the building of any railway, or the opening of
streets, or any other purpose where land is taken under authority of
law, and to become security upon any writ of error or appeal. Before
exercising the above powers, such corporation shall have a paid-up capital
of not less than $25,000.
H oliday s. Legal holidays constitute every Sunday, 1st day of Jan
uary, 22d of February, the Fridav following the 1st day of May, 4th of
July, 25th of December, every day on which a general election is held,
every day appointed by the President, or by the Governor for public
fast, thanksgiving, or holiday. The time in which any act provided by
law to be done, is computed by excluding the first day and including the
last, unless the last day is a holiday, and then it is always excluded.
Any act, appointed by law, or contract, to be performed upon a partic
ular day, which day falls upon a holiday, such act may be performed
upon the next business day.
H usband and W ife. All the property of the wife owned by her before
marriage, and that acquired afterwards by gift, bequest, or descent, or that
which she shall acquire with the proceeds of her separate property, shall
remain her sole and separate property, to the same extent and with the same
effect as the property of a husband similarly acquired. The wife has the
management, control, and absolute power of disposition of her separate
property, to the same extent and with like effect as a married man may have
in relation to his real and personal property. The separate property of the
wife is not liable for the' debts of her husband, but is liable for her own
debts contracted before or after marriage. There is no estate by courtesy
or in dower. Marriage settlements are provided for, and when properly exe
cuted and recorded may vary the statute governing the relations of husband
and wife concerning property rights. Minors may execute valid marriage
settlements.
In jun ctions. Injunctions may be granted at the time of issuing the
summons upon the complaint, and at any time afterward before judgment
by affidavits. An injunction can not be allowed after the defendant haB
answered, except upon notice or an order to show cause.
In solven cy. Insolvent debtor may file his petition in the district
court of the county in which he has resided for the next preceding six
months, praying to be discharged from his liabilities. The petition must
show the residence of the insolvent, his inability to pay his debts, his
willingness to surrender all of his property to his creditors; and there
must De annexed thereto a schedule and. inventory showing all of the
liabilities, the amounts thereof, the names and residences, if known, of
the creditors, and the items and value of the property owned by him; and
the petition must be verified by the oath of the insolvent, who must also
state, under oath, that he has no other property, credits, or effects, in the
hands of another for him, in trust or otherwise; that he has not directly
or indirectly sold or disposed of, or concealed any portion of his effects;
that he has not, in contemplation of insolvency, or otherwise, com
pounded with his creditors or any of them, whereby to secure any of
same, or to receive any benefit or expect any profit or benefit from any of
his said creditors: or to defraud or deceive any creditor to whom he is in
debted; and that he has in no instance created or acknowledged a debt for
a greater sum than he honestly owes. Upon receipt of the petition, pre
pared and verified as aforesaid, the judge of the court makes an order
declaring the petitioner insolvent and directing the sheriff of the county
to take charge of his estate (except such thereof as is by law exempt from
execution), including his books of account, papers, deeds, vouchers, etc.,
and keep same till appointment of an assignee, and forbidding the pay
ment to the petitioner of any debts by his debtors, and directing that all
actions and proceedings against him be stayed; which order must be pub
lished in a newspaper in the county, until a meeting of the creditors is
had. and copies sent to each of the creditors. The discharge only affects
residents in this State, and such non-resident creditors as appear and pre
sent their claims. The assignee is elected bv the creditors. Debts
against insolvent must be proved same as against a decedent’s estate.
Fraud on the part of petitioner, if shown, prevents discharge. (Rev.
Stats. Secs. 5875 to 5932. j
Insurance. Any number of persons residing in this State who own
personal or real property of not less than $100,000 >in value which they
desire to have insured, may associate themselves together for the purpose
of mutual co-operative insurance against loss by fire, lightning, tornadoes,
cyclones, wind-storms, and the fidelity of persons, and form an incorporated
company for such purposes, and issue policies.
In ter est. Where there. is no express contract in writing fixing a
definite rate of interest, the rate is 7 per cent per annum. Parties may
agree in writing for interest at the rate of 12 per cent per annum. Judg
ments bear interest at the rate of 7 per cent per annum.
J udgm ents are liens on all real estate of debtor within the county,
from time of docketing, and may be extended to other counties by filing
transcript in recorder’s office. Lien continues two years. Justice's court
judgments become liens when certified and recorded. May be revived by
issuing execution within limitation.
Ju risd ictio n . The district courts in this State are courts of general
jurisdiction.
Incense. Persons engaged in banking, loaning money, etc., are re
quired to pay license.
lie n s , M echanics’. Every person performing labor upon or furnish
ing materials used in the construction or repair of any mining claim,
building, or other improvement, has a lien thereon. A sub-contractor by
giving notice to the owner that he intends to claim same, and the amount
due him from the contractor, has a lien not to exceed the amount due
from the owner to the contractor at the time of giving the notice. Farm
laborers have lien upon the crop and products thereof, upon which they
bestow labor. All liens must be set forth by a statement in writing,
showing the amount due, the facts connected with the matter, that there
§are no credits due on the claim, or offsets against the same; which state’ment must be verified by the claimant, ana recorded in the office of the
county recorder, if on claim of original contractor, within ninety days, if
on claim of other persons, within sixty days from the time of the comple
tion of the structure the completion of the labor, or the furnishing of the
materials. Lien must be enforced by suit within six montns, unless
credit is given; expires at all events in two years.
L im itation to Suits. Contracts not in writing, four years; instru
ments in writing, five years; judgments and decrees, six years. Revivor:
Only by instrument in writing; part payment does not.
M arried W om en. All property, real or personal, acquired before
marriage and acquired after marriage, by gift, bequest, devise, or descent,
wife’s separate property; all other property acquired after marriage,
common property; wife must record inventory of separate property. No
estate as tenant by courtesy allowed the husband, nor dower to the wife.
BANKING AND COMMERCIAL LAWS—ILLINOIS.
Half the common property goes to the surviving husband or wife; if no
descendants, half of common property subject to will of deceased, or, in
case no will, goes to heirs of deceased. Acknowledgments of a married
woman must be taken separate and apart from her husband and the
officer must certify to such separate examination, and that she was made
acquainted with the contents of the instrument, and thereupon that she
acknowledged to the officer that she executed the same and that she does
not wish ta retract the same. And no estate in real property of a married
woman passes by any grant or conveyance purporting to be executed or
acknowledged by her unless the grant is acknowledged as above.
Mines and M ining. (Principal regulations under United States’
Statutes.) Quartz locations may be 1,500 feet long and 800 feet on
each side of the middle of lode. Monuments must be established at
all exterior angles of claim. Claim should be tied to some natural or per
manent mon ament. Copy of location notice must be posted at discovery
within three days after discovery. Notice of location must be recorded
within ninety days after location; within sixty days ten-foot shaft must
be sunk or its equivalent. Location notice must contain name of locator,
name of claim, date of discovery, dimensions, distance from some perma
nent, natural, or artificial object; name of mining district, county,and State.
Placer locations made in same manner as quartz locations, except that
within fifteen days after making location, locator must excavate not less
than 100cubic feet for purpose of prospecting c aim, and must record
notice of location within thirty days after making location.
M ortgages. A real estat e mortgage must be acknowledged and certi
fied, and recorded in like manner as conveyances and deeds of real prop
erty, and is foreclosed by action in the district court. C h a t t e l M o r t g a g e s
must be acknowledged as real estate mortgages, and sworn to by the
mortgagor that the same is made in good faith without any design to
hinder, delay, or defraud creditors. May be filed or recorded. Survives
as long as the debt. Mortgages are discharged by a satisfaction duly exe
cuted and recorded, or by entry on margin of this record, witnessed by
recorder.
N otaries, when requested, to demand acceptance and payment of
foreign, domestic, and inland bills of exchange or promissory notes and
protest the same for non-acceptance and non-payment; exercise such other
powers and duties as by the law of nations and commercial usage, or by the
laws of any other Territory, State, government, or country may be performed
by notaries. Attach acknowledgments or proof of powers of attorney,
mortgages, deeds, grants, transfers, and other instruments of writing exe
cuted by any person. Give certificate of such proof or acknowledgment;
to take depositions, affidavits, and administer oaths and affirmations in all
matters incident to duties of the office. To keep a record'of all official
acts; when requested, and upon payment of his fees therefor, to make and
give a certified copy of any record in his office; to provide and keep an
official seal, on which must be engraved his name, the words “ Notary
Public,” and the name of the county for which he is commissioned. To
authenticate with his official seal all official acts.
Notes and B ills. Notes and Pills are governed by the rules of the
Uniform Negotiable Instrument Law, as recommended by the American
Bar Association. (Sess. Laws 1903, p. 380.)
P artnership, L im ited and Special. A special partnership may
be formed by one or more persons as general partners, and one or more
persons as special partners, by signing a certificate stating: 1. Name
under which the partnership is to be conducted. 2 . General nature of the
business intended to be transacted. 3. Names of all the partners and their
residence, which are general and which are special. 4. Amount of capital
each special partner has contributed. 5. Periods at which such partnership
will begin and end. Certificate must be acknowledged by all partners and
recorded in the office of the recorder of the countyIn which the principal
place of business is situated, and if partnership has places of business sit
uate in different counties, a certified copy of such certificate by the officer
in whose office it is recorded, must be recorded in every county in which it
has a place of business. An affidavit of each partner, stating the sums
specified in the certificate of partnership as having been contributed by
each of the special partners, then actually and in good faith paid, must be
filed in the same office with the original certificate. Such certificate must
be published in a newspaper printed in the county where original certifi
cate was filed, and if no newspaper is printed in such county, then in a
newspaper in this State published nearest there. Such publication must
be made once a week for four successive weeks, beginning within one
month from the time of filing the certificate. In case such publication is
not so made, the partnership must be deemed general. Every renewal
or continuance of a special partnership must be certified, recorded, verified,
and published in the same manner as upon its original formation. Gen
eral partners only have authority to transact business. Special partners
may at all times investigate the partnership affairs, and advise his partners
and agents as to management. Special partners may loan money to the
partnership and take security therefor, and as to such loans have the same
rights as other creditors. In case of insolvency of the partnership, all
other claims which he may have against it must be postponed until other
creditors are paid. General partners may sue and be sued alone. Special
partner may not withdraw any part of the capital invested during contin
uance of partnership, but may receive such lawful interest and such pro
portionate profits as may be agreed upon, if not paid out of the capital
invested, and is not bound to refund same to meet' subsequent losses
If special partner withdraws capital he becomes a general partner. Gen
eral partners are liable to same extent as in general partnership. Special
partner is not liable for debts of partnership beyond amount contributed.
Power o f A ttorn ey. Powers of attorney for grants of real estate
and to execute a mortgage must be in writing,, subscribed, acknowledged
or proved, certified and recorded as other instruments affecting real prop
erty. Powers of attorney which have been recorded must be revoked by
revocation in writing, acknowledged, proved, certified, and recorded the
same as original power.
Probate Law. Probate courts have jurisdiction to open and receive
proof of wills and admit them to proof; to grant letters testamentary and
guardianship and revoke same; appoint appraisers of estates, compel exec
utors, etc., to render accounts; order sale of property of estates and minors;
order payment of debts due from estates, order and regulate distribution .
or property or estates; compel attendance of witnesses and production of all
instruments pertaining to estates and property of minors, and make such
°™ers as may be necessary to exercise all powers conferred. Proceedings
or this court are construed the same as courts of general jurisdiction and
une torce given to its records.
Protest. ( S e e N o t a r i e s . )
Records. All deeds, mortgages, real and chattel, and instruments afrecting the title to lands must be recorded. Inventory ot the separate per
sonal estate of a married woman when recorded, becomes p r i m a f a c i e evi
dence that the property therein enumerated is her separate property,
¡•o ^ e u t empowering a married woman to act as a sole trader must be
recorded in the county recorder’s office. In case of levy of attachment
upon real estate, a copy of the writ, with a copy of the notice of levy atrached thereto, must be filed in the office of the county recorder.
7?
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1209
R edem ption. The defendant or any one interested in the property,
whether as owner or lien holder, may redeem after sale under decretal or
execution sale, within one year from date of sale. In case of tax sales, the
owner may redeem in three (3) years. Any subsequent hen holder may
redeem the property upon which he has a hen, at any time after the prior
lien becomes due.
.
R ep lev in . Action of, must be brought within three years from time
it accrues. Plamtiff may sue for the possession without claiming im
mediate possession, or he may claim immediate possession at time of
commencing suit or afterward. Affidavit showing that plaintiff is the
owner, the detention, the unlawfulness of the detention, etc., and bond
with sureties required to obtain immediate possession. Defendant may
execute undertaking, with approved sureties, for the retention of thepropthai xt
be forthcoming, subject to the order of the court m
which me action is pending, and thereupon retain the possession of the
property involved.
Seals. The distinctions between sealed and unsealed instruments are
abolished.
Secu rity for Costs. Security for costs may be required.
Service. If made by a private party, service must be proved by affi
davit of the party serving, stating the time, and place, and manner of serv
ice. If by; an officer, proof is made by his official certificate. Writs of
summons in district court must be made ten days, if made in the county in
which the action is pending, or twenty days if made in the judicial district,
but outside of the county in which the action is brought, and forty davs if
outside the judicial district.
J
Suits. Civil practice is under a code similar to that of California
(which see).
Su pp lem en tary P roceeding. When execution has been returned
unsatisfied, judgment creditor is entitled to an order from the judge of the
court, requiring judgment debtor to appear and answer, upon oath, con
cerning his property.
Taxes. The locus of property for taxation relates to the second Monday
of Jatuary, if within the State, and if not to the day of assessment, and
is a lien from and after that date. The period of redemption is three
T estim ony. ( S e e E v i d e n c e . )
T ransfer o f Corporation Stock. Shares of stock are personal
property and may be transferred by indorsement by the signature of the
proprietor, his attorney, or legal representative, and delivery of such
certificate; but such transfer is not valid except between parties thereto,
until same is entered upon the books of corporation, so as to show name
of parties by and to whom transferred, the number and designation of
shares, and the date of entry-. Corporations may, by by-laws, provide that
no transfer of stock shall be made upon its books until all indebtedness to
the corporation of the person in whose name the stock stands is paid.
Trust Com panies. ( S e e G u a r a n t y C o m p a n i e s . )
W arehouse R eceipts. No statutory regulations.
W ill«. Every person over the age of eighteen years, and of sound
mind, may make a will. Every will, other than a nuncupative will, must
be in writing, and every will other than an olographic and a nuncupative
will, must be executed by the testator subscribing thereto or some person
by his direction, which must be done in the presence of two attesting wit
nesses, each of whom must sign his name and state that the testator
requested him to witness the testator’s signature, and the testator must
also declare in the presence of the witnesses that such is his last will and
testament.
SYNOPSIS OP THE LAWS OP ILLINOIS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. Chatty Bros., J arvis & Sample,
Attorneys at Law, Chicago. ( S e e C a r d i n A t t o r n e y s ' L i s t . )
A ccou nt. An action of account may be brought by one joint tenant,
tenant in common or co-parcener, against the others; by an executor or
administrator against co-executor or co-administrator with will annexed:
by a residuary legatee against executors and administrators; by and
against executors and administrators in all cases in which the same might
have been maintained by and against their testator or intestate; by a co
partner against other co-partners, to adjust co-partnership accounts, and
on book account.
A cknow ledgm ents or proof of real estate instruments may be
before one of the following courts or officers: 1. Within this State,
master, notary, justice. United States commissioner, county clerk; or
court of record, judge, justice, clerk, or deputy of such court. A justice
of the peace must add certificate of the county clerk if land is outside
his county. 3. Outside this State, a justice, notary, master, United States
commissioner, commissioner of deeds, mayor, county clerk: or judge,
justice, clerk, or deputy of any United States court; or any judge, justice,
clerk, deputy, prothonotary, surrogate, or registrar of supreme, circuit,
superior, district, county, common pleas, probate, orphans, or surrogate’s
court of any State, territory, or dependency. In any dependency may be
also before a commissioned militaiy officer; justice or master must attach
certificate of court clerk. 3. Outside the United States any court of any
republic, dominion, state, kingdom, empire, colony, territory, or dependency
having seal, or judge, justice, or clerk thereof, mayor or chief officer of
city or town having seal 5 notary, commissioner of deeds, ambassador
minister, secretary of legation, United States consul, vice or deputy consul,
commercial or consular agent with official seal, or before any officer
authorized to take like acknowledgments or administer oaths to prove
deeds. If court or officer have no seal he shall add certificate of
ambassador, minister, secretary of legation, consul, vice or deputy consul,
commercial or consular agent residing there showing such court or officer
was duly created or selected and acting as such at the time. •
A ctions. In addition to actions which survive by the common law,
the following also survive: Actions of replevin; action to recover for
injury to the person (except slander and libel); to recover damages for
injury to real or personal property; for the detention or conversion of
personalty; and action agamst officers for misfeasance, malfeasance, or
nonfeasance, and all actions for fraud or deceit. An action will lie to
recover for property destroyed or injured in consequence of any mob
or riot of twelve or more persons against a city or county. The com
mon law forms of action and pleadings are used, but are in some respects
modified by statute. Non-resident plaintiffs, must give bonds for costs.
Process must be served ten days before the commencement of return
1210
BANKING AND COMMERCIAL LAWS—ILLINOIS.
liable for his indebtedness. No assignment of wages or salary shall be
term. In justices’ courts summons is returnable in not less than five,
valid unless in writing and acknowledged in person before a justice
nor more than fifteen days, and must be served at least three days before
and entered on docket and within three days a copy be served upon the
the time of trial.
party owing the salary or wages; and if by a married person assign
A d m in istration o f E sta te s is had in the county courts, except in
ment must be signed and acknowledged by both husband and wife.
some larger counties where probate courts are established. Six weeks
Assignment
void if to secure debt tainted with usury. Assignment of
notice must be given for proof of claims. Claims not presented within
wages to be earned in whole or in part more than six months in the
one year from date of letters shall be harried unless creditors find other
future
is
void.
Enforcement of unlawful assignment may be enjoined
estate not inventoried or accounted for within that time. Infants, persons
by assignor or employer.
of unsound mind, persons without the Upited States in the employ of
A tta ch m en t. The writ may issue out ol courts of record on claims
the United States or of this state have one year to exhibit claim after
exceeding $20, when the debtor is non-resident; conceals himself, or
disability removed. Administrator, executor, guardian, conservator or
stands in defiance, so that process can not be served on him; or has
trustee who fails to pay over is guilty of larceny.
departed from this State with the intention of removing his effects
By statute (1905) administration of intestate estate is granted, 1st, to
therefrom, or if about to do so; or has, within two years, fraudulently
surviving husband or wife, 2d, to child, 3d, to father, 4th, to mother,
conveyed, assigned, concealed, or disposed of his property, or a part
5th, to brothers, 6th, to sisters, 7th, to grandchildren, 8th, to next of kin,
thereof, so as to hinder or delay creditors; or is about fraudulently to
9th. to public administrator or any creditor. A relative entitled to
conceal, assign, or otherwise dispose of his property or effects, so as to
administer may nominate a competent person to be appointed in his or
hinder or delay creditors; or the debt was fraudulently contracted by
her stead. Preference and right to nominate must be exercised within
statements in writing. Before writ can issue, plaiqtiff, his agent, or
sixty days, otherwise public administrator shall act. When several are
attorney,
must make affidavit to one or more of these facts, and give
equally entitled to administer, the court may select preferring relatives
bond, in double the amount of claim. Writs may issue out of justice’s
of whole to those of half blood. Where intestate is non-resident and
courts,
on
the same grounds, on claims not exceeding $200. Garnish
where there is no resident widow, husband, or next of kin entitled to
ment process may issue in cases of attachment, or on return of execution
share, the public administrator shall act. In cases of contest and liabil
unsatisfied, but the wages of any person who is the head of a family
ity to waste, loss or embezzlement, the public administrator shall ad
and resides with the same, to the amount of $8 per week, are exempt.
minister until such contest is determined. When heirs all reside in
(S e e G a r n is h m e n t .)
this state and the estate is solvent and without minor heirs, and the
parties in interest desire to settle estate without administration, this law
B an k s. There is nothing special in the statutes about National banks,
(1905) shall not apply. No non-resident shall act as administrator or
except that shares of stock in such as may be located in this State are
0xecutor.
listed and taxed as shares in State banks and as other personal properly,
T ru sts
in
P ro b a te .
Any probate court, and the county court in
even though the owner be non-resident. Each bank is required to keep
counties where there is no probate court, has original jurisdiction to
a list of names and residences of its stockholders.
supervise and control all testamentary trusts created by original wills
Banking associations may be formed to do general banking except
probated in such court, and may appoint and remove trustees, issue
issuing bills as money; may make loans on. personal and reai estate
letters of trusteeship, fix bonds, settle accounts, having full chancery
security and accept and execute trusts. Capital required is graded:
powers: also power to order sale of real estate to pay legacies or other
Cities of 5,000 or less, $25,000; up to 10,000. $50,000; up to 50,000, $100,charges made thereon by testator and to make distribution if found
000, and 50,000 or more, $200,000. The state auditor issues certificate
necessary or expedient.
of organization, which must be recorded in proper county. Any impair
ment of capital must be made good on notice from him.
A ffidavits may be taken or oaths administered by any judge, master
June 4, 1897, the statute was amended, as follows: “ The total liabili
in chancery, clerk of court, justice, police magistrate, or notary public.
ties to any association, of any person, or of any company or firm, for
Any oath authorized or required to be made out of the State, may be
money borrowed, including in the liabilities of a company or firm the
administered by any officer authorized by the law of the State where it
liabilities of the several members thereof, shall at no time exceed oneis administered, and if such officer have a seal, his certificate under his
tenth part of the amount of capital of such association actually paid in.
official seal shall be received as p r i m a f a d e evidence oi his authority to
But the discount of bills of exchange drawn in good faith against actually
administer oaths.
PYiating
values, and the discount of commercial or business papers
A lien s. By statute of July 1, 1897, all aliens may acquire and hold,
actually owned by the person negotiating the same, shall not be con
and convey, or devise, or otherwise alienate real property, subject to
sidered as money borrowed. Every such loan made m violation of the
certain provisions and restrictions. If said alien be twenty-one years of
provisions hereof, shall be due and payable according to its terms, and
age or upwards at the time of acquiring title to lands in this State, he
the remedy for the recovery of any money loaned in violation to the pro
may hold title thereto for six years; but if he be under twenty-one years
visions
hereof, or for the enforcement of any agreement, collateral or
at the time of acquiring said title, he may hold title for six years from
otherwise, made in connection with any such loan, shall not be held to he
and after the time he becomes twenty-one years of age, and if at the
impaired,
affected, or prohibited by reason of such violation, but such
end of the time above limited such lands shall not have been conveyed to
remedy shall exist notwithstanding the same. But every director of any
bona fide purchasers for value, or such alien shall not have become a
such
association
who shall violate, or participate in, or assent to such
citizen of the United States, the State’s attorney shall compel a sale of
violation, or who shall permit any of the officers, agents, or servants of
said lands, such sale, however, to be made subject to all incumbrances of
the
association
to
violate the provisions hereof, shall be held liable in his
judgment, mortgage or otherwise existing against said land. The money
personal and individual capacity for all damages which the association,
and securities for the unpaid balance, if any, oi the purchase price bid for
its
shareholders,
or
any other person shall have sustained in consequence
said land shall, after deducting costs, be delivered to the State treasurer,
of such violation.” A banker, officer, or person doing banking who re
who shall hold the same as the property of the State of Illinois.
ceives deposits knowing concern to be insolvent shall, if deposit be lost,
A p peals, Appeals may be taken from justice courts to the circuit,
be fined double the sum lost and may be imprisoned one to two years.
superior, or county courts. Appeal bond must be double amount of judg
C ollateral s. There is no special provision relating to them.
ment. Appeals irom probate court to circuit court may be taken upon
Conveyances. A person may convey title to lands, although not
bond, such as probate court may approve. Such appeals are tried d e n o v o
in possession, and although the same be in adverse possession. No estate
in circuit, superior, or county courts. Appellate courts exercise appel
in joint tenancy, except to executors and trustees, is created by deed
late jurisdiction only. If the sum amounts to $1,000 the case may be
unless it be expressly so declared, otherwise it will be a tenancy in com
taken from the appellate to the supreme court on appeal or writ of error.
mon. The words “ conveys and warrants ” are sufficient to convey title in
Any case however, may be taken from the appellate to the supreme
fee simple and to warrant that the grantor was lawfully seized with full
court if the appellate court shall certify that questions of law are of
right to convey; that the land was free from incumbrance, and that
sufficient importance to justify doing so.
grantee have quiet and peaceable possession, and that grantor shall defend
A rb itration . The parties to any suit pending in any court of record
title The words “ conveys and quit claims ” are sufficient to convey all
may agree to arbitrate, whereupon an order to that effect will be entered
the grantor’s interest. The words “ mortgage and warrant” are sufficient
submitting the matter to three arbitrators, each party choosing one, and
to mortgage the fee with full covenants of general warranty. The home
a third if they can agree; if not, the court will name the third. The arbi
stead right is not waived except apt words be used. A married woman
trators are sworn to properly hear and decide the cause, may have wit
above eighteen joining with husband in any deed, mortgage, power of
nesses subpoenaed, issue attachments, administer oaths, and punish for
attorney or other writing, shall be bound in respect to her title the same
contempt. The award shall be in writing, signed by them or a majority,
as if she were single. No covenant or warranty is broken by the existence
and a copy given to each party. Either party may, within one year, by
of a highway upon the land conveyed. ( S e e A c k n o w l e d g m e n t s . )
giving four days’ notice, have final judgment thereon. The right to sub
Corporations are formed under the general statue for lawful pur
mit controversies to arbitration, as at common law, is not affected.
poses except banking, insurance, real estate, brokerage, railroads, and
A rrest. One about commencing suit upon any specialty, bill, note,
money-lending;
separate acts provide for these. At least one-half of
judgment, obligation, or contract may, on affidavit stating facts showing
capital stock must be reported paid in, and also what disposition has
that debt was fraudulently incurred or that debtor has fraudulently con
been
made
of
that
not paid in, before charter issues. Stockholders vote
cealed or disposed of property, have c a p i a s issued for his arrest. In
in person or by proxy, each share one vote; shares not less than $10 or
actions for damages merely, affidavit shall state that judgment will be
more than $100; cumulative voting allowed; final certificate or charter
in danger of loss unless debtor be held to bail. Plaintiff must give bond
to be recorded in company’s own county; may hold only necessary real
in double the amount sued for, and debtor must give bond as fixed by
estate- directors not less than three nor more than 11; make by-laws and
court or go to jail. Ho may t)6 dischargod. if
affidavit 1)6 insufficient
control business; no stock liability except for unpaid par value; directors
or untrue Debtor may schedule out if malice is not the gist of the action.
and officers who assent to indebtedness exceeding amount of capital
If it is, he may remain in jail, the creditor paying his board, at $4.50
stock are liable for the excess; stockholder may examine books; certif
per week, and the debt is satisfied by imprisonment, at the rate of $1.50
icates assignable in blank and pass by delivery; stock is personalty and
per day.
................. ...
.
may
be attached or taken in execution unless certificate has been sold or
A ssign m en ts. The county court has jurisdiction in cases of volun
pledged Every corporation except building and loan, railroad, banKtary assignment for the benefit of creditors, which assignments must
ine
and insurance shall in each February report to secretary of state
be duly acknowledged, filed in the office of the clerk of the county court,
location of office, names and residences of officers, when terms expire
and recorded in the county where the assignor resides, or where the
and
nature
of active business. Failure to do so is p r i m a f a c i e i evidence
business has been carried on, and in the county or counties where land
of being out of business and secretary shall record cancellation oi
embraced in the assignment is situate. Assignee must file bond and
charter, and shall file annually with recorder of each county, list and
inventory, and send notice by mail to creditors to present claims under
particulars of such reports, and all cancellations; may be re3ns5at®a
oath within three months from publication of notice. Claims not so
within one year by paying $20, and making proper reports to date,
presented do not participate in dividends until after the payment in ■charters already forfeited of corporations not for pecuniary profit, in
full of all claims properly allowed. Assignee is required to make equal
cluding religious corporations, may be restored if proper application is
dividends among creditors at first term oi court after th.6 three months
made before March 1,1906.
,
notice, and to render a final account withip one year. If any creditor
A F o re ig n
C o l o r a t i o n other than insurance, building and loan, anu
«hall fail to receive his distributive share for a period of six months after
surety company, wishing to operate in this State shall make sworn
final order of distribution, the assignee shall, upon order of court, pay to
application to secretary of state, naming its proposed business, amount
the county treasurer the total of such undistributed amounts. The creditor
of capital stock and whether it is to operate in any other State or country,
who shall not have received his share may, at any time within six months
the proportion of its business to be done in this State, what assets and
from the time of such payment, receive the same from the treasurer.
value thereof will be used in this State, the amount paid in upon its
Should such creditor not procure the same from the treasurer within said
capital stock and if any stock is not paid in, what disposition is to ne
six months the debtor may receive of the treasurer whatever sum shall
made thereof; names and residences oi president, secretary and treas
then remain in his hands unpaid to creditors. Preferences are void.
urer, location of office, name of attorney m fact who can be served witn
Wages of laborer or servant earned within three months must be paid m
summons, and if required by secretary of state, names and residences or
full. Proceedings may be dismissed out of court, by consent of debtor
all stockholders. Shall file copy of charter or certificate. Applicants
and a majority of creditors, in number and amount, but debtor remains
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
BANKING AND COMMERCIAL LAWS—ILLINOIS.
may be interrogated by secretary of state as to character of business,
capital stock, proportion of business to be done in this State, and the
proportion and location of its business in other States or countries, and
must be answered on oath. It can do no business which may not be
done by domestic corporations nor shall it exceed provisions of its own
charter; must make reports from time to time as required of domestic
corporations; hold only necessary real estate; cannot encumber its prop
erty in this state to injury of resident creditors; no mortgage made by
it shall take effect as against citizen creditors until all liability to citi
zens shall be fully paid, which were owing at the time of recording
mortgage. Upon the proportion of its stock represented by its property
and business in this State it shall pay same fees as domesiic corporations,
secretary of state may at any time interrogate president, secretary,
director or manager as to business being transacted, location, names
and residence« of directors and officers, amount paid in and what has
been done as to stock not paid in, and failure to answer on oath within
ten days, authority to do business may be revoked; delinquent may be
fined $1000 to $10,000 and cannot collect any claim by suit.
Courts. T e r m s a n d J u r i s d i c t i o n . Circuit courts have original juris
diction in all cases in law and equity, and hold two or more terms in
each year, in each county.
County courts have probate jurisdiction
(except in counties where probate courts are established), and have also
a limited civil ($1,000) and criminal jurisdiction. Provision is made for
city courts of special civil and criminal jurisdiction. Justices of the
peace have jurisdiction limited to $200. Appellate courts and a supreme
court exercise appellate jurisdiction. Cook county has a special supe
rior court of jurisdiction concurrent with that of circuit courts, and has
also a special criminal court, each with monthly terms. [ N o t e . ' ] A com
prehensive statute of 67 sections was passed (1905) creating a municipal
court for Chicago, with twenty-eight judges, intended to take the place
of the present justice courts, but with much additional jurisdiction. As
the first election of judges does not take place until November, 1906 and
the law cannot go into practical operation earlier than the win er of that
year, it seems unnecessary to digest the law at present.
Days o f Grace are abolished by statute in force July 1, 1895.
D epositions. The testimony oi any witness residing within this
State more than 100 miles from the court, or not residing in this State,
may be taken by the party desiring to use the same, under a commis
sion, upon written interrogatories. The deposition of a non-resident
witness may be taken on oral interrogatories, upon giving ten days’
notice, and one day for every 100 miles traveled from the court to place of
tatong same. When the notice has been served for taking the deposition
of a non-resident witness on written interrogatories, the adverse party
may,upon giving three days’ notice, have a deposition issued to take the
deposition upon oral interrogatories. Commission may issue to any
judge, master in chancery, notary or justice, or to any competent or
disinterested person as commissioner. Where deposition is taken on
written interrogatories, neither party, his attorney, nor other person
interested, is allowed to be present, nor to dictate or write any deposition.
When a party, having given notice to take depositions upon oral inter
rogatories, shall fail to take the same, and the opposite party shall attend
either in person or by attorney, he shall be entitled to $2 per day for each
day of such attendance, and to 6 cents for every mile necessarily traveled
in going and returning.
D escent. Real and personal property of intestates, after payment of
debts, shall descend as follows: 1. To children and their descendants;
2. If no child, nor descendant of. child, and no widow, or surviving hus
band, then to parents, brothers, and sisters; 3. If there is a widow or sur
viving husband and no child, or descendants of child, then one-half of the
realty and all the personalty to the widow or surviving husband, and the
other half as in other cases where there is no child or descendant of such;
4. Where there is a widow or surviving husband, and also a child or
descendant of such, the widow or surviving husband shall have one-third
of all personalty; 5. If there is no child or descendant of such and no
parent, brother, or sister, or descendant of such, and no widow or surviv
ing husband, estate shall descend to next of kin, by the civil law; no
representations among collaterals excepting with the descendants ofbrothers and sisters, and no distinction between kindred of whole and half
blood; 6. If there be widow or surviving husband and no kindred, estate
descends to widow or surviving-husband; 7. If no kindred and no widow
or husband surviving, the estate shall escheat to the county where estate
or the greater portion thereof is situated. An illegitimate child is heir to
its mother and any maternal ancestor and any person from whom its
mother could inherit, and the lawful issue of an illegitimate takes its
estate. An illegitimate person’s estate shall descend to the widow or
surviving husband and children as the estate of other persons in like cases.
On the death of an illegitimate intestate, leaving no child or descendant
of such, the estate shall descend to widow or surviving husband. If no
widow or husband and no child or descendant, such estate shall vest in
the mother, and her children and their descendants; one-half to the
mother. If no heir as above, the estate shall vest in the next of kin to
the mother as by the civil law. If no heirs or kindred, the estate^ shall
escheat to the State. An illegitimate child becomes legitimate if the
parents inter-marry.
Divorces may be granted for impotency; former wife or husband
living; adultery; desertion or habitual drunkenness two years; attempt on
the lire of the other by poison or other means showing malice; extreme and
repeated cruelty, conviction of felony, or other infamous crime. Residence
in State one whole year next before filing petition required, unless the
offense was committed in this State or whilst one or both resided herein.
Suit must be brought in county where complainant resides and process
may be directed to any county in the State. If deiault be made the testi
mony shall be in open court without a jury. No confession of the
defendant shall be evidence unless it was made without fraud or .collu
sion. The court may, pending the cause, prohibit husband from interfer
ing with personal liberty of wife and may make such order concerning the
custody and care of minor children as may be for their benefit. Husband
may be ordered to pay alimony, pending the suit. Permanent alimonymay be decreed to support the wife, which may be altered or modified
from time to time. In case the wife obtain a divorce she may have her
maiden name restored.
Dower. The estate of curtesy is abolished and the surviving husband
or wife is endowed of a third part of lands owned by deceased at any time
during marriage. Equitable estates and lands contracted for in lifetime,
the titie of which may be completed after death, are subject to dower. No
dower as against mortgage for purchase money, nor mortgage made before
marriage, except as to the surplus remaining after payment of incumbrance.
If will makes provision in lieu of dower, the dower will be barred in other
lands unless the survivor shall renounce the benefit of such devise within
one year after letters in probate are issued. No judgment or decree, nor
laches, default, covin, forfeiture or crime of either, nor conveyance without
the consent of the other shall bar dower.
E vid en ce. Parties to actions and interested persons may testify.
Persons convicted of crime may testify, but the conviction may be shown
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1211
to affect credibility. A party shall not testify on his own behalf when the
adverse party is trustee, conservator, executor, administrator, heir, legatee,
devisee, guardian or trustee, except as to facts occurring after death of
deceased person, or after ward, legatee or devisee shall have attained
majority, or where agent of deceased person shall testify to conversations
or transactions between the parties, or where other witness shall testify to
conversation or admission occurring before death in the absence of deceased
persons, or where deposition of deceased person, taken in lifetime, shall be
read in evidence. Where claim or defence is made on a book account, a
party interested may testify that his account book was a book of original
entries, that the entries were made by himself, are true and just, or were
made by a deceased, disinterested or nonresident person in the usual course
of business, and thereupon such account book shall be admitted in
evidence. Husband or wife may not testify for or against each other as to
any transaction or conversation occurring during marriage, except in
cases where the wife would, if unmarried, be plaintiff or defendant, or
where the cause of action grows out of a personal wrong or injury done by
one to the other, or out of the neglect of the husband to support the wife,
or where the litigation be concerning her separate property, or in suits
for divorce, or as to amount and value of property in actions against
insurance companies and carriers, or in matters where the transaction
was had or conducted by the husband as her agent.
E xecu tion may issue immediately after rendition of judgment,
and to any county. Executions are liens on personal property from date
of delivery of writ to officer. They do not issue on justices’ judgments
until twenty days, unless oath be made that debt is in danger of being
lost; thereafter execution may issue at any time within seven years.
Real estate is sold on execution, without appraisement, to the highest
bidder; and, if the debtor so elect, his real estate must be exhausted.
No stay law. Defendant may redeem within twelve months alter the
sale. If he fail to redeem, any decree or judgment creditor may redeem
during next three months.
E xem p tion s. To every householder having family, a homestead,
value $1,000 is exempt; and such exemption continues to the survivor,
after the death of the husband or wife, so long as he or she occupies
it, and to the children until the youngest is twenty-one. In addition, is
allowed to every person necessary wearing apparel, Bibles, school books,
family pictures, and $100 worth of other property selected by debtor.
If debtor is the head of a family, and resides with the same, he is
allowed $300 worth in addition, to be selected by him. Selection can
not be made from money or wages due. Money due from sale of
exempt personal property shall be exempt. Of wages there is $15.00 per
week exempt from garnishment to any one who is the head of a family
residing with the same. The party bringing suit shall first make demand
in writing for the excess of wages above the exemption. No property
exemption is allowed when the debt is for the wages of laborer or servant.
Wages are preferred in case debtor is closed by legal proceedings.
Wages earned outside of State exempt, where cause of action arose out
of State, unless debtor is personally served with process in the State.
Fraud. It is criminal fraud to attempt to obtain insurance money
wrongfully; to issue, sell, transfer or pledge any false, fraudulent or simu
lated stock certificate or evidence of shares of any corporation, or -for any
officer to sign any such certificate; to sell any land after having once sold
or agreed in writing to sell the same to another; to convey any real or per
sonal property with intent to defraud and deceive others or to hinder dr
delay creditors; to willfully certify any false acknowledgment with intent
to defraud; to issue any false warehouse receipt or to wrongfully remove or
dispose of any property for which a warehouse receipt has been issued; for
the mortgagor to dispose in any manner of any property covered by chattel
mortgage. Any negotiable instrument procured by fraud or circumvention
to be executed is void even in hands of innocent holder.
Frauds and Perjuries. No executor or administrator is liable
upon any promise to pay any debt or damage out of his own estate, and
no person is liable upon any agreement to answer for the debt, default, or
miscarriage of another, or any agreement upon consideration of marriage
or any agreement that is not to be performed in one year, unless the
agreement is in writing signed by him or by some one authorized. No
contract for the sale of lands or any interest therein for a longer term than
one year is binding, unless in writing signed by the party or some one
authorized by him, in writing, to sign for him. Any gift, conveyance, or
transfer of, or charge upon any real or personal estate made with intent to
delay or defraud creditors or other persons, and any evidence of debt
given, suit commenced, decree or j udgment entered, with like intent, shall
be void as against such creditors, purchasers, and other persons. All
declarations of trust in lands shall be in writing, except resulting trusts or
trusts created by implication or operation of law.
G arnishm ent. Process may issue upon judgment, and in attach
ment, to hold whatever a third party may owe, or have belonging to
debtor. Garnishee can not be held as the maker or endorser of negotiable
paper unless same is past due and in debtor’s hands at time of service or
judgment. Executors and administrators are subject to garnishment,
i)iit no judgment can be taken against- them until alter order of distribu
tion in probate. One baying a claim against a resident debtor sball not
transfer or send it beyond this State to collect by garnishment out of
debtor’s wages to deprive him of his exemption, when the garnishee can
be served in this State. Non-resident debtors are protected from tike^
proceedings in our courts. Wages or salary of any officer or employé of
anv county, city, town, village, school district, or any department of
either thereof, is liable to garnishment. Officer served must answer and
deposit amount shown due.
Husband and W ife. If sued together she may defend for her own
right and if either neglect to defend, the other may defend for both. If he
desert his family, she may prosecute or defend in his name, and he has the
same right if she desert. Neither is liable for debts of the other before or
after marriage, nor shall the earnings or property of either, nor the income
thereof be so liable. Neither shall be entitled tp recover compensation
for labor or services rendered for the other. If either unlawfully retains
control of the other’s property, before or after marriage, the owner
may ™«iTUain action therefor the same as if unmarried. If either abandons
the other and leaves the State for one year without providing for support
of the family, or is imprisoned in the penitentiary, the court, where the
remaining one resides, may authorize him or her to manage, control,, sell,
and encumber the property of the other for the support of the family and
to pay the other’s debts, or to pay debts for the family’s support. Eithër
may constitute the other an attorney in fact to dispose of property.
Expenses of family and children’s education are chargeable upon property
of both or either, and they may be sued separately or jointly. If she be
deserted or live separate from him without her fault she may sue in equity
for separate maintenance. It is a misdemeanor for him to abandon his
wife and neglect to provide for her, or abandon his child or children under
twelve years of age and willfully neglect or refuse to provide for them;
punishment by fine not less than $100 and not more than $500, or im
prisonment not less than one or more than twelve months, or both.
1212
BANKING AND COMMERCIAL LAWS—INDIANA.
In te r e st. Legal rate, 5 per cent, but agreement in writing may be
“ The rights of the lawful holders of promissory notes, payable in
made for 7 per Cent or less. Forfeiture of all interest is penalty for
money, and the liability of all parties to or upon said notes, shall be the
usury. Legal rate is collectible on moneys due on all instruments in
same as that of like parties to inland bills of exchange, according to the
writing; on money lent or advanced for use of another; on money due
custom of merchants. Every assignor of every other note, bill, or other
on settlement of account from day of ascertaining balance ; on money
instrument in writing mentioned in Section 3 (above quoted) of this act
received to use of another and retained without owner’s knowledge ; on
shall be liable to the action of the assignee or lawful owner thereof
money withheld by unreasonable and vexatious delay, and on judgments.
if such assignee or lawful holder shall have used due diligence by the
In computations of time, interest, and discounts upon negotiable instru
institution and prosecution of a suit against the maker thereof, for the
ments, a month is construed to mean a calendar month, and a year to
recovery of the money or property due thereon, or damages in lien
consist of twelve calendar months; and for any number of days less
thereof. But if the institution of such a suit would have been unavailing
than a month a day is considered a thirtieth part of a month.
or the maker had absconded, or resided without, or had left the State
J u d gm en ts of courts of record are a lien on real estate situated in
when such instrument became due, such assignee or holder may recover
against the assignor as if due diligence by suit had been used.”
the county, for seven years, and may be made a lien on real estate in
The legal title can be assigned only by indorsement thereon. Suit
any other county, by filing a transcript thereof in that county. When
must be brought in name of holder of legal title. On bills or notes
execution is not issued within one year, it thereafter is no lien; but
payable in money, suit may be brought against any or all who are
execution may issue within any time within seven years, and shall
severally liable. If only one or more, but not all, are served, judgment
become a lien from its delivery to the proper officer. Judgments
may be entered in form against all, but so far only as that it may be
rendered 'at the same term or on the same day in vacation are of con
enforced
against joint property of all, and separate property of those
current lien. Judgment of court of record maybe revived by s c i r e f a c i a s
served. Failure or partial failure, or total want of consideration, may be
at any time within twenty years. A judgment of a justice of the peace
set up in defense to any such instrument not in the hands of a b o n a f t d t
may be made a lien on real estate in any county by filing a transcript
assignee before maturity. “ Fraud or circumvention,” in obtaining the
thereof in the circuit court. The term “real estate” when used in this
making thereof, renders it uncollectible even by innocent holder. In
statute includes all rights in lands, including estates for life, and for
computations of time a month is a calendar month, but for less time
years, and leasehold estates when the unexpired term exceeds five years.
a day is the thirtieth part of a month.
L iens. Mechanics, material men, architects, or superintendents have
P ow er o f A ttorn ey. Almost any act which a party may perform
a lien for work and materials furnished in building, altering, repairing, or
may be performed by an attorney in fact. A non-resident corporation may
ornamenting any building. A sub-contractor has lien. Hotels and board
authorize by power of attorney, any business done here which it could do
ing houses have a lien upon “ baggage and other valuables” of guests
if resident, and such authority need not be under seal. A scroll by the
or boarders for “ accommodations, Doard, and lodgings, and such extras
agent will be treated as the corporate seal of the company. This does not
as are furnished at their request.” Stable keepers and persons have a
apply
to railroad corporations. If land is to be conveyed by an attorney
lien upon horses, carriages, and harness for proper charges for keeping.
in
fact the power of attorney should be under seal.
Agisters and persons keeping or pasturing domestic animals have a lien
P rob ate Law. ( S e e A d m i n i s t r a t i o n o f E s t a t e s . )
for proper charges.
P rotest. ( S e e M o t e s a n d B i l l s o f E x c h a n g e . )
L im itation o f Suits. Action for slander or libel, one year.
Damages for injury to person, false imprisonment, malicious prosecu
R e p le v in . Goods or chattels wrongfully taken or detained may be
tion, statutory penalty, abduction, seduction, criminal conversation, two
replevied by owner or person entitled to possession. In justice court
years. Unwritten contracts, express or implied, awards of arbitration,
value of property must not exceed $200. Affidavit may be made by the
injury to real or personal property to recover personal property, or
plaintiff or agent, and must state that property has not been taken for any
damages for detention, or conversion thereof, and all civil actions not
tax, assessment, or fine, nor under any execution or attachment against
otherwise provided for, including actions on foreign judgments, five
property of plaintiff, nor on writ of replevin against him. Replevin bond
years. Bonds, notes, bills, written leases, and contracts, or other
must be double the value of property to be replevied. Property replevied
evidences of indebtedness in writing, ten years. If any payment or new
is delivered by officer to plaintiff or his agent. Plaintiff may declare in
promise shall be in writing on any bond, bill, note, lease or contract
replevin for property found and in trover for that not found. As to
within or after said period ten years, then limitation extended ten
property not found, he shall be entitled- to judgment for its value with
years longer. If cause of action arises out of this State, and by the laws
interest. Plaintiff is entitled to damages for wrongful detention of
of that State action can not be maintained, no action can be maintained
property. If suit dismissed without trial, suit may be brought on the
here. Judgment of court of record in this State, and actions for the
bond, in which suit merits may be tried.
recovery of lands are barred after twenty years, and the latter in
Sales In G ross—Fraud. If a merchant sell his entire stock, or any
seven years in some cases. If one fraudulently conceals a cause of action
portion thereof in bulk and out of the usual course of trade, it will be
against himself, he may be sued within five years after discovery of the
presumed fraudulent and void as to his creditors, unless he and the pur
fraud. If action is stayed by injunction, such time shall be deducted
chaser, at least five days before the sale, make full inventory showing
from the running of the statute.
quantity and cost prices, and unless purchaser make explicit inquiries
L im ited P artn ersh ip . May consist of one or more general partners
of the seller as to the names and residences of all seller's creditors and
and one or more special. Special shall contribute specific amount of
amount due to each, and unless purchaser notify each creditor personally
capital or property at cash value, and be not liable for debts beyond that
or by registered mail of such cost price and of his proposed purchase
amount. General partners must transact the business. Certificate must
price. The seller shall, five days before such sale, fully answer in
be signed by all, stating name of firm, nature of business, names of
writing all such inquiries.
partners, amount of special capital contributed, and when firm begins
T axes for the year are payable after December 1st, and the delinquent
and ends; certificate to be acknowledged and recorded in all counties
list is delivered to county collector about March 10th, following. Delin
where firm does business. If certificate is false, all become general
quent
taxes bear interest at 1 per cent per month after May 1st following.
partners. Terms must be published in newspaper six weeks. Can not be
At tax sales, the entire tract is sold to the person “ offering to pay the
dissolved except by operation of law, before end of term unless notice of
amount due on each tract or lot for the least percentage thereon as
dissolution is recorded and published. Special partners named must
penalty. ” No bid for penalty shall exceed 25 per cent of amount of taxes.
not appear in firm name, and suits by or against firm shall be only in
R e d e m p t io n .
To redeem, there must be paid, if within six months, the
name of general partner or partners. Special partner shall not withdraw
amount
of tax and penalty; during second six months, the tax and twice
money, but may receive lawful interest or actual profits accrued if it do
the
penalty;
during
third six months, the tax and three times the penally,
not reduce his original amount. He may examine business and advise
and during fourth six months, the tax and four times the penalty. Must
as to management. Such firm can not, in contemplation of insolvency,
also
pay
all
taxes
and
assessments accruing after sale, and 7 per cent
confess judgment or otherwise prefer any creditor.
thereon. If not redeemed within two years, purchaser is entitled to tax
M arried W om en. A married woman may sue, be sued, possess
deed which is sometimes good.
her own earnings, contract, incur liabilities, purchase, sell and hold,
W ills. Last wills may be made by males of twenty-one and females of
personalty, and own real estate to same extent, as if unmarried.
eighteen. Must be signed personally or by direction of testator in his
Husband not liable for her debts or torts, unless where he would be
presence,
and attested by at least two witnesses. At probate, two must
jointly liable if not married. She can not enter partnership without
testify that they saw it signed, or that it was acknowledged by the testator
husband’s consent unless he has abandoned her, or be incapable of
and
that
he
was of sound mind and memory. If witness has removed to
consenting. No transfer of chattels from one to other is valid as
parts unknown, be insane, or has died, his hand-writing may be proven.
against third parties, unless in writing, acknowledged and recorded.
Probating
a
will is not conclusive, and bill in chancery may be filed within
Both are liable for family expenses.
one year to set it aside. Foreign wills admitted to probate in county
M ortgages on real estate are executed same as deeds. Husband
where testator may have owned lands. Wills made in one state, or copies
and wife must join to bar dower or homestead except to secure purchase
duly proven from the record may be recorded here. A nuncupative will
money. Mortgages and trust deeds with power of sale must be foreclosed
is good if reduced to writing within twenty days after making thereof,
in chancery. No sale allowed under such power. They are exempt from
and ten days after testator’s death.. It requires two witnesses who heard
defense to the same extent as thè notes secured by them and in hands
testator pronounce the words, and two others must testify that will was
of innocent persons. C h a t t e l M o r t g a g e s shall be acknowledged before a
written within said ten days. No letters on such will granted until after
justice or the county judge of county where mortgagor resides, or
sixty days from testator’s death.
before the clerk or deputy of any municipal court; if mortgagor is
non-resident, then before any officer authorized to acknowledge deeds;
in counties of more than 200,000, if the mortgagor is resident of state, he
shall acknowledge before a justice of his town or precinct, or if there be
none, then before clerk or deputy of municipal court, or, if no such clerk
or deputy, then before county judge. If mortgagor is resident of tfiis
SYNOPSIS OF THE LAWS OF INDIANA
state the official shall docket names of parties and description of
RELATING TO
property.
N egotiab le In stru m en ts. Days of grace are abolished. January 1,
BANKING
AND
COMMERCIAL USAGES.
February 12 and 22, May 30, July 4, first Monday in September ([Labor Day),
December 25, Thanksgiving, and Saturday afternoons in cities of
Prepared and Revised by Messrs. Chambers, Pickens, Moores, & David
200,000 or over, are legal holidays, and treated as Sundays in presenting
son, Attorneys at Law, Indianapolis. ( S e e C a r d i n A t t o r n e y s ' L i s t . )
for payment or acceptance, maturity, protest, and notice. When
A ccounts. Where an itemized bill of particulars, duly sworn to by or
either day is Sunday then Monday is the holiday. Paper maturing
on behalf of the plaintiff, is filed with the complaint in an a'ction on ac
Sunday or holiday, or if two such days come together, matures the
count, the correctness of the account will be taken to be admitted, if
following day. If a bill drawn or indorsed in this State, and payable
defendant
fail to appear, and judgment rendered without further evidence.
outside the United States?is dishonored and duly protested, the drawer
A ck n ow led gm en ts. All conveyances of real estate, except leases
or indorser is liable for interest, and 10 per cent damages; if payable
for less than three years, must be in writing, and acknowledged and
(in money) outside the State and within United States, then for interest,
and if suit be brought 5 per cent damages.
recorded within forty-five days from their execution. Within the State
acknowledgments maybe taken before a judge or clerk of a court of
“ Section 3. All promissory notes, bonds, due bills, and other instru
ments in writing, made or to be made, by any person, body politiG
record, justice of the peace, auditor, recorder, notary public, or mayor
of a city, and in other States and Territories before the like officers, or a
or corporate, whereby such person promises, or agrees to pay any sum
commissioner of deeds for Indiana. In any foreign country, before a
of money or articles of personal property, or acknowledges any sum
,minister, charge d’affaires or consul of the United States. If such
of money or article of personal property to be due to any other person,
acknowledgment or proof is in some other than the English language,
shall be taken to be due and payable, and the sum of money or article
of personal property therein mentioned, shall by virtue thereof, be due
or is not attested by such official seal, it must be accompanied by the
certificate of an officer of the United States to the effect that it is duly
and payable as therein expressed.” Such instrument is assignable by
executed according to the laws of such foreign country, and that the
endorsement thereon, under the hand of the payee, as bills of exchange are.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
BANKING AND COMMERCIAL LAWS—INDIANA.
officer has legal authority to certify to the proof or acknowledgment and
the meaning of his certificate, if made m a foreign language. Wife
must join in deeds to husband's lands in order to carry her inchoate onethird interest in husband’s lands. No s e p a r a t e acknowledgment of wife
necessary in order to convey her inchoate interest in husband’s lands,
although she must acknowledge.
Actions. The distinctions between law and equity are abolished. The
statute provides but one form of action. In this, either legal or equit
able relief may be had. Upon the filing of a complaint in the office
of the clerk of the court, or of a justice of the peace, a summons is
issued requiring the defendant to appear and answer to the complaint.
Defaults cannot be taken in the higher courts unless the summons shali
have been served at least ten days before the day on which it is return
able, while judgment may be taken on default in three days after service
before a justice of the peace. The clerk will make summons returnable
at next term, provided at least ten days intervene, or at any date fixed by
indorsement on the complaint more than ten days from the date of filing.
Non-resident plaintiff may be required to give bond for costs. In actions
in court for money demands on contracts the losing party must pay the
costs, unless the plaintiff recover less than $50, and in such case plaintiff
must pay the costs unless his recovery has been reduced below $50 by set
off or counter claim. In all actions for damages solely, not arising out of
contract, if plaintiff do not recover $5 damages he shall recover no more
costs than damages, except in actions for injuries to character and false
imprisonment, and when the title to real estate comes in question.
Adm inistration o f E sta tes. The circuit court has exclusive orig
inal jurisdiction in probate matters, and all procedure is prescribed by
statute. In cases of intestacy letters are granted in following order: £
To widow or widower. 2. To the next of kin. 3. To the largest creditor
applying and residing in the State. No person applying within twenty
days after the death of the intestate, the court or clerk shall issue letters
to a competent inhabitant of the county. Letters of administration shall
be granted in the county: 1. Where intestate was inhabitant at time of
death. 2. Where not being inhabitant of the State he leaves assets or
whereto assets shall afterward come. Where an intestate, not being an
inhabitant, shall die out of the State, leaving assets in several counties,
or assets of such intestate shall, after his death, come into several counties,
letters may be granted in anyone of the counties in which such assets
may be at time of death; and the administration first lawfully granted
shall extend to all of the estate of intestate. Letters cannot issue to a
married woman without her husband’s consent in writing, filed with the
clerk. The effect of such consent is to make husband jointly liable with
wife. Preference is given to foreign executor of a decedent not an inhab
itant of State, if, before letters are granted in this State, it appears that
proper letters have been granted in another State, except there be resident
creditors, legatees and heirs entitled to distribution, who are inhabitants
of the State. No action shall be brought by complaint and summons
against any executor or administrator of an estate for the recovery of any
claim against the decedent; but the holder thereof, whether the claim be
due or not, shall file a succinct and definite statement thereof in the office
of the clerk of the court. If claim be founded upon a written instru
ment the original or a copy must be filed therewith, setting forth all
credits to which the estate is entitled, and accompanied by the affidavits
of the claimant, his agent, or attorney, that the claim is just and
wholly unpaid. If claim be secured by a lien, the hen shall be particu
larly set forth in such statement and a reference as to where such lien
will be found if of record. The claim must be filed within one year from
the giving of notice of the administrator’s appointment, otherwise the
claimant will have to pay all costs; and if not filed at least thirty days
before the final settlement of the estate, it shall be barred, except that
heirs, devisees and distributees shall be liable to the extent of the prop
erty received by them, to any unpaid creditor who six months prior to the
final settlement was insane, an infant, or out of the State,—suit to be
brought within one year of removal of disability, and if upon claim of
non-resident creditor, within two years of the settlement of the estate.
If claimant fail to appear and prosecute claim same shall be dismissed
and subsequent prosecution of the claim shall be at claimant’s costs,
unless good cause for such failure be shown.
Affidavits to be used in this State may be taken before a notary public
or any other resident officer in this State authorized to administer oaths;
orbefore an ambassador, minister, consul, vice-consul or consular’s agent
of the United States in a foreign country; or before the judge of a court
of record having a seal in such foreign country, the genuineness of his sig
nature, existence of the court, and fact that he is a member thereof, being
certified by its clerk under its seal; or in another State before some offi
cer whom the clerk of the circuit or district court, or court of common
pleas of the county where such officer exercises the duties of his office
shall, under his hand and the seal of his court, certify as duly impowered
by the laws of such, to administer oaths and affirmations, and take affida
vits—and so certify as a part of the affidavit.
Aliens. Resident aliens who have declared their intention to become
citizens, may acquire, hold, and enjoy real estate, and may convey, devise,
mortgage, or otherwise encumber the same, in like manner and with the
same effect as citizens of this State Aliens, whether resident or not, may
own real estate not exceeding 320 acres; lands in excess of that amount
they must convey within five years or suffer escheat as to such excess.
. Appeals. Except in a case where the amount in controversy, exclu
sive of interest and costs, is less than $50.00, an appeal from any final
judgment or order of a circuit or superior court may be taken within
one year after the rendition thereof either to the supreme or the appellate
court, according as the matter falls within the jurisdiction of the one
or the other court. From the judgment of a justice of the peace or
mayor of a city an appeal may be taken to the circuit or superior court
or the county, within thirty days, where the action will be tried anew.
(S e e C o u r t s . )
Arbitration. All persons not under disability, may, by agreement in
suiting, arbitrate any difference between them which might be subject
of a lawsuit, except the claim to any estate in fee or for life to any real
estate. The parties shall execute bond conditioned to abide and faithfully
perform the award, and they must agree to make the submission a rule
of court. _ Ten days’ notice in writing must be given to opposite
party of time and place for arbitrators to meet. Witnesses may be
required to attend. Award of the majority must be in writing. If either
partyrefuse to abide such award, opposite party may fil e the same, together
with agreement of submission} in the court named in such submis
sion. Upon such submission being proved by an attesting witness, and
proof of award by the arbitrators or any of them, and upon proof of
service of copy of award upon party refusing to abide, the court shall
cause entry of submission and award to be made, and grant a rule against
aayerse party to show cause why judgment shall not be rendered.
, Arrest for D eb t. Defendant in a civil action may be arrested and
fflii
bail in the amount claimed, at any time before judgment, on
affidavit that he is about to leave the State, taking with bim property sub
ject to execution, with intent to delay or defraud the plaintiff. Bond is
required of plaintiff.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1213
e Z t8?|n<1 In solvency. Any debtor may make a general
‘m f Ka11 ^ pe£iy m tmst for be“efit oi all bona fide
T? be v&bd this must be by indenture duly signed and
acknowledged, and filed with the recorder of the county in which
r®B1.de® within ten days after its execution. Indenture
should contain full description of real estate and be accompanied by
f
of Personal property, and attested by the assignor’s oath that the
indenture and schedule contain a full statement of all his property,
etc Trustee makes.oath and files bond in circuit court, and files copy
of assignment, etc._, in office of clerk of that court within fifteen days
after execution oi indenture. Trustee named failing to act, the circuit
court may appoint a substitute upon petition. Trustee named by the
debtor may be removed by the court on the petition of creditors repre
senting in amount one-half the liabilities of the debtor. The court may,
upon petition of any creditor, or the trustee, order an examination of
nor or any person to whom any part of his property has been
transferred within six months previous to the assignment. The trustee
to
^ der oath complete inventory oi all property coming
aiid file ln court within thirty days after entering
caPse sa?ie to be appraised by two reputable
nKvno^derSii Se^
*^e assignor, if a resident householder, such
^ may select to the value of $600 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 salZ
uP°n, credit, not exceeding two years, subject to apof the court a8 ^ such sales. The court in its discretion may
f?int!SSeiibe*basiness. Dividends are declared pro rata upon all cl aim«
allowed by trustee or the court. Trustee’s compensation fixed by the
court. Debtor is not discharged from his liabilities.
aat
^
^
A ttach m en t may issue against the property of a non-resident or
foreign corporation, and against any who may have disposed of, or be
about to dispose of, property, to cheat, hinder or delay creditors, or
against a creditor who conceals himself so that summons can not be
served upon him. An affidavit is required, which may be made bv the
creditor or some one on his behalf, and a bond to answer damages if the
proceedings are wrongful or oppressive. Creditors who file under the orig
inal attachment,before final judgment,are required to furnish a like affida
vit and bond, and all share pro rata in the proceeds of the attached prop
erty. The wages of a resident householder, not exceeding one month's
wages at any one time, are exempt from garnishment or proceedings
supplemental to execution, so long as such person remains in such em
ployment. 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 to be reached
are all within the jurisdiction of the courts of this State and the collec
tion of claims so sent may be enjoined. Courts are prohibited from
taking jurisdiction of such proceedings to reach wages, when plaintiff
and principal defendant are non-residents.
Banks, P rivate. Act of 1905 regulating private banking applies to
anyone who uses the word “bank” in connection with his business$10,000 must be kept invested in the business, and the real estate, furnitureand fixtures must not exceed one-third of the whole capital. Semi
annual reports to auditor of State must set forth copy of articles of
co partnership; at least one partner must be a resident; the report must
show name of the bank, place of business, amount of capital paid in, net
worth of each member, and names of officers and employes in charge
The aggregate net worth of partners must be double the amount of stock
invested. When the stock has been paid in and reported under oath the
auditor issues a charter authorizing the bank to do business. A copy of
the semi annual report shall be published. In the bank shall be posted
a list of the partners. Depositors have lien on assets. Service of process
on officer in charge gives jurisdiction as against all persons interested.
B ank s, Savings. The investment of deposits 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 issued pursuant to the authority of law.
4. Stocks or bonds of any State in the Union that has, for ten years pre
vious to such investment b e i n g m a d e , r e g u l a r l y p a i d the interest 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 perishable improve
ments, at least twice the amount loaned thereon. 6. Promissory notes
or bills of exchange, before their maturity, payable at some chartered
bank within 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 responsible freeholders of the State; but no such note or bill to ex
ceed $10,000; no more than $10,000 to be loaned upon the same securityevery such note or bill to be made or indorsed by at least one freeholder
of the county in which the bank is located, by dealing 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 responsi
ble freeholders of the county in which the bank is located, or an adjoin
ing county, and unless fora sum not in excess of $10,000, and maturing
within sixty days or less time, when payable out of the State; not more
than one draft to be held by bank at any one time, which is secured by
the same, or any of the same indorsers, but not to exceed 60 per cent
of the whole amount of deposit shall be so loaned on interest.
A separate statute provides for the organization and regulation of
savings banks. Any number of persons from seven to twenty-one,
each of whom shall have been resident citizens of the county for at least
five years preceding the organization, and owners of unincumbered
real estate of the value of $5,000, exclusive of improvements, may
organize by the execution of a certificate setting forth the name of the
association, place of its operations, the name, residence, occupation and
post office address of each member, and a declaration that each member
will accept the responsibility and faithfully discharge the duties of a
trustee thereof. The certificate must be duly acknowledged before the
judge of the circuit court, and the judge must examine and hear proof
of the qualifications of the persons executing the certificate, and satisfy
himself that they are in all respects suitable to be entrusted with the
management of a savings bank, and certify these facts, which certificate
shall thereupon be filed in the office of the recorder of the county and
the auditor of state. The statute goes into the minutest details in the
regulation of the affairs of banks organized under its provisions. It
requires bonds from all officers and agents, and forbids accepting per
quisites of any kind, regulates the method of acceptance and repayment
of deposits, and provides particularly the nature of investments which
shall be made. Savings banks may purchase, hold, and convey real
estate for the following purposes, and none other: For the location of
banking house; real estate mortgaged to it in good faith for money
loaned, or upon which it shall have purchased a mortgage; real estate
taken upon judgments and decrees on behalf of the bank, or purchased to
prevent loss on claims held by the bank.
1214
BANKING AND COMMERCIAL LAWS—INDIANA.
B an k s, S ta te. The general assembly has enacted a general banMng
law, governing the organization and operation of State banks. The
auditor of the State, with the approbation of the governor,as often as shall
be deemed necessary or proper, must appoint a State bank examiner who
shall not be a director or other officer of the bank, and shail 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. The examiner shall make a detailed report of the condition of the
bank to the auditor, and the association shall be subject to no other
risitorial powers than such as are vested in the several courts oi 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 nim, 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 re
port 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 newspaper
published in the place where the bank is established, or, if there is no news
paper in the place, then in one published nearest thereto in the same
county or an adjoining county, at the expense of the bank. The auditor
has power to call for special reports from any particular bank, when
ever, in his judgment, it shall be necessary in order to a lull knowledge
of its condition. Any bank failing to make and transmit a'ny such report
shall be subject to a penalty of $100 for each day, after five days, that
it delays to make and transmit the same.
B ills o f E xch an ge an d Prom issory N otes. No grace is
allowed. Damages for protest on bills upon any person at any
place out of this State, but within the United States, 5 per cent! on
bills drawn upon any person at any place without the United States, 10
per cent. Promissory notes payable at a bank in this State, and bills oi
exchange, are governed by the law merchant. Promissory notes not pay
able at a bank within the state are subject to any setoff maker may have
against payee, or any subsequent holder, accruing before notice of assign
ment. On these, maker must be exhausted before indorser can be sued.
Protest is not necessary to hold indorsers of such notes, but to hold them
maker must be sued at first term of court after maturity, unless it can be
shown that he was insolvent at the time of such maturity. For all purposes of presenting for payment or acceptance, for the maturity and protest, and giving notice for the dishonor oi bills of exchange, bank checks,
promissory notes, or other negotiable or commercial paper, the first day oi
the week, commonly called Sunday; January 1st, commonly called New
Tear’s day; July 4th; December 25th, commonly called Christmas day:
and any day appointed or recommended bj the President of the United
States or the Governor oithe State oi Indiana as a day of public fast
or thanksgiving; February 22d, commonly called Washington’s birthday,
and May 30th, commonly called Memorial day, the first Monday in Sep
tember, called Labor day, and the day of any general election, are made
holidays by statute; and all commercial paper, tailing due on either of
said holidays, shall be deemed as having matured on the day previous,
and when any of said holidays come on Monday they shall be deemed
as having matured on the Saturday previous, and when the legal holiday
comes on Sunday the day following shalT be the holiday. Saturday after
noon is a legal half holiday in the city of Indianapolis, and may be made
so by act of bankers in other cities of over 35,000 population.
C h attel M ortgages. Chattel mortgage on personal property left
in the hands of the mortgagor with power 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 absolute bill of sale; must be
acknowledged in the same manner as prescribed for the acknowledg
ment of deeds, and recorded within ten days from execution, and in
the county where the mortgagor resides. An assignment of goods, by
way of mortgage, where such goods are not delivered to the mortgagee,
shall not be valid against any other person than the parties thereto,
unless such mortgage shall be acknowledged, and recorded within ten
days after the execution thereof. Where delivery of the chattels to
the mortgagee occurs at the time, record is unnecessary. A mortgagee
of household goods can not sell mortgaged property except under a
judicial proceeding in the circuit or superior court.
C ollaterals. No material statutory provisions in regard to collaterals.
Contracts. Contracts made by telegraph between two or more per
sons are declared to be contracts in writing.
C onveyances. Lands in this State may be taken, held, conveyed, de
vised, or passed by descent, by or from any citizen of the United States; or
by or from any alien ( s € 6 A - l i c i t s ) , Indian, negro, or mulatto or other person
of mixed blood; with some provided exceptions as to descent or devise.
Lands which may have come by descent or purchase to the wife of an alien,
may be held, conveyed, devised and passed by descent by and from her, notwithstanding the fact of her residence with her husband in a forei gn State
or country. Insane persons and infants may not convey real estate.
Except bona fide leases for a term not exceeding three years, convey
ance of lands, or of any interest therein, must be by deed, subscribed;
sealed and acknowledged by the grantor or by his attorney duly
qualified; that is, by an instrument in writing, subscribed, sealed
and acknowledged by his principal in like manner as conveyance
is required to be. The joint deed of a husband and wife is
sufficient to pass the lands of the wife. Except in cases of mortgages,
conveyances in trust, conveyances to husband and wife, and cases
of estates vested in executors or trustees, as such, and so held by
them in joint tenancy, all conveyances and devises of lands, or of any
interest therein, made to two or more persons, shall be construed to create
estates in common, and not in joint tenancy, unless it shall be expressed
therein that the grantees or devisees shall hold the same in joint tenancy,
and to the survivor of them, or it shall manifestly appear from tenor of
instrument, that it was intended to create an estate in joint tenancy. A
deed of release or quit-claim shall pass all the estate which the grantor
could convey by a deed of bargain and sale. The use of the word heirs
is not necessarv to create an estate ol inheritance. If it be the intention
of the grantor to convey any lesser estate, it must be so expressed in the
deed. Liability on lineal and collateral warranties is expressly abolished;
a covenant or agreement of any person leaves heirs and devisees answerable theron only to the extent of property descended or devised to them.
Any conveyance of land worded—“ A. B. conveys and w a r r a n t s to C. D.
(Here describe the premises) for the sum of (here insert the considera
tion),” or “ A. B. q u i t - c l a i m s to C. D. (here describe the premises) for the
sum of (here insert the consideration),”—the same being dated, and duly
signed and acknowledged by the grantor,—shall, in the one case, be
deemed and held to be a conveyance in fee simple to the grantee, ms
heirs and assigns, with covenant from the grantor for himself and his heirs
and personal representatives that he is lawfully seized of the premises,
has good right to convey the same, and guarantees the quiet possession
thereof, that the same are free from all incumbrances, and that he will
warrant and defend the title of the same against all lawful claims; and
shall, in the other case, be deemed to be a good and sufficient conveyance
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
in quit-claim to the grantee, his heirs and assigns. Any mortgage of lands
worded—“ A. B. m o r t g a g e s and w a r r a n t s to C. D. (here describe the
premises) to secure the repayment of (here recite the sum for which the
mortgage is granted or the note or other evidences of debt, or a descrip,
tion thereof, sought to be secured, also the date of the repayment) ” —the
same being dated and duly signed and acknowledged by the grantoris a sufficient mortgage to the grantee, his heirs, assigns, executors and
administrators, with warranty from the grantor and his legal representa
tives of title perfect and unincumbered in the grantor. When a deea pur
ports to convey absolutely any estate in lands, but is made, or intended to
be made, defeasible by-force of a deed of defeasance, bond or other instru
ment for that purpose, the original conveyance shall not thereby be defeated
or affected as against any person other than the maker of the defeasance,
or his heirs or devisees, or persons having actual notice thereof, unless the
instrument of defeasance shall have been recorded, according to law,
within ninety days after the date of said deed. Every conveyance or mort
gage of lands, or of any interest therein, and every lease for more than
mree years, shall be deemed fraudulent and void as against any subsequent
purchaser lessee or mortgagee in good faith and for a valuable considera
tion, unless recorded in the recorder’s office of the county where such
lands are situated, in forty-five days from its execution. { S e e A c k n o w l
e d g m e n ts, M a r r ie d
W o m e n .)
C orporations. D o m e s t i c C o r p o r a t i o n s . Corporations are created
only under general statutes. This is done by means of articles
of association, executed bv the required number of persons, and
filed with the secretary of State, recorder or clerk of the county, as
provided by statute. The statutory requirements having been C9mplied
with, a statement thereof may be filed with the clerk of the circuit court,
which at the next term, upon proof of such organization, shall enter of
record a declaration thereof, and such order is conclusive of the fact of such
existence. The liability of stockholders varies according to the nature
of the corporation in question and the law under which it was organized.
In the corporations which were in existence November 1, 1851, and
which accepted the terms of the act of March 6, 1883, stockholders are
liable, in case of insolvency, for a sum at least equal to amount of stock
held at time the debt was contracted. In most corporations, stockholders
who have paid for their stock are not liable for debts of the. company.
However, there is liability in some cases for labor and services of em
ployes. Shares of capital stock in a private corporation are subject to
attachment.
F o r e ig n C o rp o ra tio n s .
Agents of foreign corporations before entering
upon the duties of their agency in this State, shall deposit m the clerk s
office of the county where they propose doing business, the power of at
torney, commission or appointment, under which they act as agents.
Before commencing their duties as such they shall also file a duly
authenticated order, resolution or other sufficient authority of the board
of directors or managers of such corporations, authorizing citizens or
residents of this State having a claim or demand against such corporation
arising out of any transaction in this State with such agents to sue
for and maintain an action in respect to the same in any court of
this State of competent jurisdiction, and further authorizing service
of process in such action on such agent to be valid service on suck
corporation, and that such service shall authorize judgment and til
other proceedings against such corporation. Contracts made by such agents
shall not be enforced in any court of this State until there has been a com
pliance by such agents with the above provisions. Failure of a foreign cor
poration to comply with these provisions will not bar—but.will abate its
action. Any person who shall, directly or indirectly, receive or transmit
money or property to or for such corporation, or make any contract, or
transact any business for or on account of any such corporation, sktil
be deemed agent. This provision does not apply, however, to persons
acting as agents for a special or temporary purpose or for purposes not
within the ordinary business, nor does it apply to attorneys at law. Any
person acting as agent of a foreign corporation, who shall neglect or re
fuse to comply with the foregoing provisions, is liable to a fine in any
sum not less than $50. In 1879 it was enacted that: Every foreign cor
poration now doing or transacting, or that shall hereafter do or transact,
any business in this State, or acquire any right, title or interest in or
lien upon real estate in this State, that shall transfer or cause to be
transferred from any court of this State to any court of the united
States, save by regular course of appeal after trial in the State courts,
any action commenced by or against such corporation m any court oi
this State by or against any citizen or resident thereof: or that snail
commence in any court of the United States in this State, on any contract
made in this State, or liability accrued therein, any suit pr action
against any citizen or resident of the State of Indiana, shall thmeky
forfeit all right and authority to do or transact business in this State, or
hold real property or liens thereon, and all cdntracts between such co •
porations and citizens and residents of this State made after the passag
of this act shall be rendered void, as in favor of such corporations, dm
enforceable by such citizen at his election. The provisions of the foreeoing section are made conditions upon which such corporations may oe
authorized to do business, or hold titles to, or liens on, real estate m
this State. By the act of 1901, foreign corporations are required to desig
nate an agent in this State upon whom legal process may be served, to
have an office where proper books of account may be kept; and to me
with the secretary of State a certificate showing the amount of the com
pany’s capital employed in this State, and to pay a graduated fee to tn
State as a condition precedent to doing business in Indiana.
Costs. Non-resident plaintiffs are required to give security for costs.
In many counties a rule of court forbids attorneys from going on cost
bonds. In most cases, costs follow judgments.
Courts. T e r m s a n d J u r i s d i c t i o n . The circuit court is the only court
of original general civil jurisdiction in the State, it has full proDate
powers. From three to four terms are held annually in each county.
Superior courts have been established in Marion, Tippecanoe,
Allen, Vigo, Madison, Lake, Porter, La Porte, Howard, Grant,
and Vanderburg counties, and hold from four to ten terms eac“
vear The jurisdiction of Marion superior court is concurrent with that;oi
the circuit court in all civil cases except probate matters and bastaray,
slander and libel; of Tippecanoe superior court is concurrent wim
the circuit court in all civil cases and in all actions by or against execu
tors and administrators; of Vigo superior court is concurrent with uie
circuit court in all causes, including actions by. or against guardians,
executors and administrators, but no jurisdiction in probate matters ana
in the settlement of decedents’ estates. Other superior courts have con
current jurisdiction with the circuit c9urt except m probate matters, tne
settlement of decedents’ estates, and m actions .for slander and hpm.
Justice’s jurisdiction, $200. Party may confess judgment before a W
tice of the peace for $300. When a written obligation for money Dina»
more than one party the justice of the peace may issue processtocOT
stable of any county in the State where party resides. The suprem
court has no original jurisdiction. It is the sole court of last resort l
cases. It sits at Indianapolis.
D ays of Graco are no longer recognized.
BANKING AND COMMERCIAL LAWS—INDIANA.
D eeds must be dated, signed, sealed, and acknowledged. In a war
ranty, the efficient words are “ convey and warrant” ; in a quit-claim,
“convey and quit-claim” ; in a mortgage, “mortgage and warrant.” They
should be recorded in within forty-five days; but, between the parties, are
good without recording. Subscribing witnesses are not necessary. ( S e e
A c k n o w le d g m e n t s .)
A married woman need not acknowledge apart from
her husband. Where the grantee signs by his mark, it is the duty of the
officer taking the acknowledgment to fully explain the contents and pur
port oi the deed; but his omission of that duty does not affect the valid
ity of the deed. A form of conveyance provided by statute is as follows:
A. B. conveys and warrants to C. D., for the sum o f........... the following
described real estate, to-wit:........ :. It carries full warranties. Like
forms are used, inserting the efficient words as above, for quit-claims and
mortgages.
D epositions. Depositions may be taken anywhere in the United
States without a commission, before any judge, justice of the peace,
notary public, mayor, or recorder of a city, clerk of a court of record, or
commissioner appointed by the court to take depositions." Person taking
deposition must not be of kin to either part or interested in the action.
When taken outside of the United States they shall be taken pursuant to
an order of the court, under a commission, with such reasonable notice
of the time and place of taking the same as the court shall require, and
they shall be certified and returned by the commissioner in such manner
as the court shall direct. Notice of the taking of the deposition should
be served upon the adverse party or his attorney, specifying the cause,
the court or tribunal of trial, the time and place of taking, and the
names of the witnesses. Reasonable time shall be allowed for the
attorney so served to communicate with the client, and for travel to the
place of taking, excluding the day of service, of the taking, and of inter
vening Sundays. The deponent shall be first sworn to testify to the truth,
the whole truth, and nothing but the truth, relating to the cause for
which the deposition is taken. He shall then be examined by the party
producing him, and then by the adverse party, and then by the officer, if
he see cause. The deposition shall be written down by the officer, by
the deponent, or by some disinterested person, in the presence and under
the direction of the officer, and after the same has been carefully read
to or by the deponent, it shall be subscribed by him. The following
facts shall be stated in a certificate to be annexed by the officer: 1.
That the deponent was sworn according to law. 2. By whom the deposi
tion was written, and if written by deponent or some disinterested per
son, that it was written in the presence and under the direction of the
officer. 3. Whether or not the adverse party attended. 4. The time and
place of taking, and the hours between which it was taken._ And the
officer shall sign and attest the certificate, and sea. the same, if he have
a seal of office. If he have no seal, his certificate shall be authenti
cated by the certificate and seal of the clerk or prothonotary of any
court of record of the county in which the officer exercises the duties of
his office. The officer taking the deposition shall seal the same in a
sufficient envelope and himself post, or express, or deliver the same to
the clerk of the court in which the action is pending, endorsing on the
envelope the names of the parties and of the witnesses whose depositions
are enclosed. Adjournments may be had from day to day after the
deposition has been begun, and for longer periods, upon written consent
of the parties, which written consent must be attached to the deposition.
Adjournments should be noted at the place in the deposition when they
occur. A narrative form of deposition may be used. A witness identi
fying a written instrument should attach it to his deposition, making it
apart of his answer.
D escen t. The real and personal property of any person dying intestate
shall descend to his or her children in equal proportions; and posthumous
children inherit equally with those bom before the death of the an
cestor. Children of deceased children take the share which would have
descended to the father or mother; and grandchildren, and more remote
descendants, and other relatives, lineal and collateral, inherit by the same
rule, excepting that if the heirs are all grandchildren they inherit equally.
Where there are no heirs as aforesaid, one-half of the estate goes to the
Father and mother as joint tenants, or to the survivor, and the other half
to the brothers and sisters, and to the descendants of such as are dead, as
tenants in common. If there be neither father nor mother, the brothers
and sisters, and the other descendants, take the estate as tenants in com
mon; or, p e r c o n t r a , the father and mother as joint tenants of the sur
vivor. Kindred of the half blood inherit equally with those of the whole
blood in property purchased by the ancestor; otherwise, as to property
acquired by gift, devise, or descent. Illegitimate children mhent from
the mother same as if they were legitimate, and v i c e v e r s a . Tenancy by
the curtesy and dower are abolished, and widows take one-third of the real
estate in fee simple, unless the property is worth over $10,000, in which
case, as against creditors, she takes one-fourth only; and where the real
estate is worth over $20,000, one-fifth only as against creditors, but as
against other heirs she takes one^third in fee simple, regardless of value,
except where there is but one child, in which case each inherits one-half.
A second or subsequent wife, however, takes only a life estate in her hus
band’s lands, if there be a child or children by a previous marriage, and
none bv such widow. Other special provisions of the statute are too
extensive to set out. (See R. 8., 1894, secs. 2622-2672.) _The estate of a
person dying intestate without kindred capable of inheriting will escheat
to the State for the support of the common schools.
D ivorce. Petitioner must have been a bona fide resident of the State
for two years previous to filing the complaint, and of the county for six
months, and this must be proved by two resident freeholders and house
holders of the State. An affidavit of the petitioner must accompany
the petition stating the length of his residence in the State, the place of
such residence, and his occupation. Divorces are granted for the follow
ing causes: Adultery, except where petitioner has connived at the offense
or condoned it, or has given defendant the same cause for divorce; lmpotency, existing at time of marriage; abandonment for two years; cruel
and inhuman treatment; habitual drunkenness; failure of husband to
provide for his family for two years; conviction of an infamous crime
subsequent to marriage. Divorce may be granted for a cause arising
outside the State. If it appear by affidavit of a disinterested person
that the defendant is a non-resident, the plaintiff must make ana
file his affidavit stating the residence of the defendant, if known, and if
unknown, that must be stated. Notice is given to non-residents by pub
lication for three successive weeks in a newspaper published m the county,
and if the residence of the defendant is known the clerk shall mail to such
defendant a marked copy of newspaper containing such notice. There
must be proof in every case or no decree can be rendered. The court
makes all provisions for the wife’s support and attorney’s fees pending
the proceedings — also all orders respecting alimony, custody and support
of children. Divorces granted on notice of publication merely may be
opened at any time as to the care and custody of children, and-opened
and defended at any time within two years as to the divorce, or alimony,
or disposition of property. Persons obtaining a divorce on publication
are forbidden to remarry within two years. By act of 1903 separation
from bed and board for a limited time may be decreed.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1215
Dow er. ( S e e M a r r i e d W o m e n . ) .
E xecu tion s may issue at any time within ten years after judgment
rendered, and are returnable in 180 days. Prom a court of record may
issue to any county in the State. Are a lien on personal property within
the county from the time they are placed in hands of officer. The liens
upon personal property attach in the order in which the officer receives
them. When levy is upon real estate the dates of the judgments control
the right to participate in the proceeds, and they must be applied accord
ing to their priority. Personal property taken in execution may be left
with execution defendant by the giving to the officer of a delivery bond
with sufficient surety. After judgment is rendered, the_debtor may, by
giving sufficient freehold sureties, have a stay oi execution on any sum
exceeding $100, for six months. Where the sum is less than $100, the
stay is not so long, varying with amount of judgment. Lands sold under
execution may be redeemed within one year by the owner, mortgagee or
person having a lien thereon, the owner retaining possession during the
redemption year and being liable for reasonable rents and profits in case
of failure to redeem.
E xem ptions. There ig no homestead law. Real or personal property
up to $600 is exempt where debtor is a resident householder.^ Resident
householder is entitled to exemption as well when in transit with his
family and property as when permanently settled. The debtor must file
a schedule of all of his property, and select the property claimed, which
is then appraised. Contract waiving exemption is void. _Pension money
in transit to pensioner is exempt, but when received by him and invested
in other property is no more so than any other property. One month s
wages also exempt if the debtor is still employed.
Eraud. Assignments, in writing or otherwise, of any estate in lands,
or of goods, or things in action, charges upon lands, goods, or things
in action, and all bonds, contracts, evidences of debt, judgments,
decrees, made or suffered with intent to hinder, delay, or defraud
creditors or other persons of their lawful damages, forfeitures, debts, ©r
demands, are void as to the persons sought to be defrauded. The ques
tion of fraudulent intent is a question of fact.
F r a u d s — S ta tu te o f.
The following contracts, if enforceable in court,
must be in writing and signed by the party to be charged there
with, or by some person thereunto by him lawfully authorized: 1. To
charge an executor or administrator, upon any special promise, to
answer damages out oi his own estate. 2. To charge any person, upon
any special promise, to answer for the debt, default, or miscarriage of
another. 3. To charge any person, upon any agreement or promise,
made in consideration of marriage. 4. Upon any contract for the sale
of land (except loan not exceeding the term of three years). 5. Upon
any agreement not to be performed within one year from the making
thereof. 6. Sale of goods exceeding $50 in value, unless part payment
or part delivery be made.
G arnishm ent. ( S e e A t t a c h m e n t . ) Garnishment is a remedy in aid
of attachment. Upon any personal action arising out of contract any
person may be summoned as a garnishee defendant upon an affidavit
made by plaintiff or some one in his behalf that he has good reason to
believe that any person named has property of the defendant m his
possession or under his control, or that he is indebted to the defendant,
or has control or agency of money, property, credits, or effects; that he
has any share or interest in the stock of any association or cOTporation,
and all money or property in the hands of the garnishee defendant is
bound from the time the summons is served upon him. Resident house
holders are entitled to an exemption of $600 in garnishment proceedings,
as in all other cases. Wages of non-residents, by the latest decision ol the
Supreme Court, to the amount of $25, and of resident householders to
the extent of one month’s wages, are exempt from execution so long as
the defendant remains in the employ of the garnishee. Indiana claims
can not legally be sent or taken out of the State for prosecution, and suits
instituted elsewhere in violation of this prohibition may be enjoined and
the intervenor be criminally prosecuted.
H olidays. ( S e e B i l l s o f E x c h a n g e a n d P r o m i s s o r y N o t e s . )
H usband and W ife. ( S e e M a r r i e d W o m e n . )
In terest. The legal rate is 6 per cent, but interest may be taken
in advance. No agreement to pay a higher rate is valid unless the
same be in writing, and in such case it is not lawful to contract for
more than 8 per cent per annum. When a greater rate is contracted
for, the contract is void as to the usurious interest, and m an action
on a contract affected by such usury, whether it be directly or indirectly
charged, all excess over 6 per cent is usurious andillegal, and the excess
may be recouped by the debtor whenever it has been reserved or paid
before the bringing of the suit. Interest on judgments rendered after
March 10 1879, runs from the date of the verdict or finding, at the_ rate
specified in the original contract, npt exceeding 6 per cent, and if no
contract has been made 6 per cent is allowed. The act applies to all
contracts made within the State, although they are to be performed
without it, and where contracts made out of this State provide for a
higher rate of interest, and are secured by mortgage upon lands withm
it such lands are not liable for a higher rate than is allowed by the laws
o i Indiana.
, 11
„
Ju d gm en ts of courts of record are a lien upon all real estate of
defendant within the county for ten years. Judgment may be obtained
at the first term of the court, after process has been served on debtor
ten davs prior to the first day thereof. Judgment m justice court
becomes affien on real estate of judgment defehàanll from time of filing
a transcript in office of the clerk of circuit court. Judgment taken by
default, before justice of the peace, may be set aside upon the fihnte of
an affidavit by the defendant, showing good defense, provided defendant
pay all the costs of previous suit. Act of 1893 provides for filing in office
of^clerk of any circuit court a certified copy of any judgment rendered
by the district or circuit court of the United States for district of Indiana.
Foreign judgments must be sued on as any other daim.
License. Traveling merchants and peddlers, not residents of the
State, and stock and exchange brokers are required to pay license. A
license is required to entitle one to Irunt or fisÎL outside tlie township of
hiLi©ns?n<Liens are granted by statute to attorneys; to persons holding
claims against watercraft on account of supplies furnished or work done;
also for demands for damages arising out of freight contracts, or for will
fulness or negligence of the master, owner, or agent, or out of any contract
relating to transportation, and for injuries to persons or property; also
to employes of any corporation as against any of its corporate property or
earnings for labor done; also to keepers of livery stables and all persons
engaged in feeding stock, for the feed and care bestowed upon the same;
- also to contractors, sub-contractors, mechanics, journeymen, laborers, and
all persons performing labor or furnishing material or machinery tor
erecting laboring, repairing or removing any house, mill, manufactory or
other building, bridge, reservoir, system of water-works, or other struct
ure known as a mechanic’s lien ; also to bailees and tradesmen for their
valid and reasonable charges in the construction, repair, or alteration Of
1216
BANKING AND COMMERCIAL LAWS—INDIANA.
any article of value; also to the bailee or keeper of personal property for
any feed or care bestowed by him upon such property; also to forwarding
and commission merchants on goods which may have remained in store
for one year or more. The attorney’s lien is had by his entering in writing
upon the docket or record where the judgment is entered his intention to
hold a lien thereon, together with a statement of the amount of his claim,
such entry to be made at the time the judgment shall have been ren
dered. Liens against watercraft are held to attach to the boat, vessel, or
watercraft, apparel, tackle, furniture, or appendages, including barges and
lighters belonging to the owners of the boat, vessel, or watercraft, and
used therewith at the time the action commenced, and this lien may be
enforced by a complaint setting forth the particulars of the attachment,
the amount due, the fact that a demand has been made upon the owners,
master, clerk,or consignee, and payment refused, verified by the claimant’s
affidavit or that of someone in his behalf, and the claim is enforced in the
same manner as in attachment proceedings. Labor liens against corpora
tions are acquired by the employe’s filing, in the office of the Recorder of
the county where such corporation is doing business, notice of his lntention to hold a lien upon the corporate property or earnings for the amount
of his claim, this notice to set forth the date of such employment, the
name of the corporation, the amount of the claim; and it maybe enforced
at anytime within six months by filing a complaint in the circuit or
superior court as in mechanic’s lien cases. The lien for feeding stock ac
crues only to persons who are engaged in the business of feeding animals.
Mechanics’ liens can now be taken by filing a notice of the intention to
hold a hen upon the real estate and improvements of the debtor, the
notice to describe the real estate, and to be filed in the office of the Re
corder of the county where the real estate is situated within sixty days
from the rendition of the last service or the furnishing of the last materials
used in the improvement.^ Preliminary notice or warning at the time the
work is done or the material furnished is no longer required. It must be
shown that the materials for which a lien is claimed were purchased for
use m the building, and were used in the construction of it, and the lien
is barred unless action is brought wiihin one year from the date of its
record. So far as the real estate is concerned, the lien takes, precedence
of all subsequent liens, and as against prior mortgagees or lessees of the
property, it may be enforced upon the improvements by an order directing
tne sale of the same and their removal from the realty. Sales made under
a judgment of foreclosure are made without relief from valuation or appraisement laws. Where a number of lien holders have claims against
the same property their rights maybe adjudicated in one action, in which,
upon.the sale of the property, the proceeds are pro-rated amongst the vari
ous lien holders. Mechanics’ liens carry with them the right to a reason
able attorney’s fee, to be paid by the debtor out of the property covered
by the lien as part of the judgment in the suit. Provision is made by
statute for holding the owner of the property personally liable for the
amount of such liens by giving him notice in advance, and his liability is
limited to the amount due from him to the principal contractor at the time
the notice is received. Except in cases of this kind there shall be no per
sonal judgment rendered against the defendant in proceedings to fore
close. Tradesmen to whom articles of value have been entrusted for
construction, alteration or repair, may after six months from the time
charges for the same become due, sell the articles so entrusted to them,
or so much thereof as is necessary to pay charges, the sale to be at public
auction for cash, or on reasonable credit with sufficient sureties in the
case of sale on time, and notice of sale shall be given by posting advertise
ments thereof in three public places in the city or township where the
tradesman resides, one of which shall be in some conspicuous part of his
shop or place of business, and if the article be valued at $10 or more, by
publishing the same three weeks successively in a newspaper m the
county, if any. Such a sale, if made in accordance with the statute, passes
a complete title to the property. The statute requires the proceeds of
such sale, after the payment of all charges, including the charges for pub
lication and notice, to be deposited with the treasurer of the county, and
receipt for the same be taken and held subject to the order of the person
legally entitled thereto. Where the debtor has died, six months must
expire from the time of his death before such a sale can be had. Forward
ing and commission merchants having liens upon goods which have re
mained in store for one year or more may proceed to advertise and sell at
public auction so much thereof as may be necessary to pay the amount of
the lien and expenses. Vendors’ liens on real estate are a first lien against
the same as against a prior judgment. Landlords have a lien upon crops,
which may be enforced by the sale of such crops in the same manner as
the lien of a chattelmortgage containing a power to sell. Any one hold
ing a valid lien against property for a claim which has been paid may be
compelled to release the same under penalty of paying to the party injured
$25, together with his reasonable attorney’s fees. Judgments rendered in
any county in the State are a lien upon the real estate situated in such
county for a period of ten years from the rendition thereof, and judg
ments rendered in the federal courts are a lien upon any real estate situ
ated m the State for the same period. Provision is made by statute, how
ever, for the filing in the county where the real estate is situated of a
transcript of any judgment rendered in the United States courts. The
office of the clerk of the circuit court in each county contains a public
record known as the I A s P e n d e s record, in which notice of the filing of
complaints to enforce liens are required to be recorded, and also in cases
where real estate is seized by attachment or execution. Unless so recorded
the bringing of suits does not operate as a constructive notice.
L im ita tio n s to Suits. Actions for injury to person and character,
and for statutory penalty or forfeiture, two years; against public officers
relatmg to_ their official duties, five years; open accounts and contracts
not in writing, for use, rents and profits of real estate, injuries to and
detention of property, recovery of personal property and relief against
frauds, six years; upon promissory notes, bills of exchange and other
written contracts for payment of money, ten years; actions not limited
by statute, fifteen years; other written contracts, judgments of courts
of record and real actions, twenty years. Revivor: part payment or new
promise in writing. Except in favor of sureties, the statute of limitation
does not run against the State.
Married W om en control their real and personal property, however
acquired. The husband is liable for the debts of his wife contracted
before marriage to the extent of the personal property he may receive
from or through her, or derive from sale or rent of her lands, and no
further, and her lands are liable for such indebtedness. A married
woman may devise her separate estate; may sell and transfer her separ
ate personal property; carry on any business, labor, or service, and
receive the earnings accruing therefrom: enter into any contract in
regard to her separate personal estate business, labor, or service, and
her separate estate, reai and personal, be liable therefor, the same as a
f e m m e s o l e ; and her husband is not liable for such debts, nor for
indebtedness created by the wife for improvement of her separate real
estate. She. can make leases of real estate for terms of three years or
less, and execute mortgages to secure purchase money, without husband
joining. She is bound by covenants of title in conveyances of her sepa
rate real estate. Her deed conveying her real estate, her husband not
joining, is absolutely void. She may sue as & f e m m e s o ’ e for any dam
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
age to her person or character. She is bound in like manner as princiDal
on her official bond. She can not enter into any contract of suretyshin
whether as indorser, guarantor, or in any other manner, and such con
tract, as to her, is wholly void; and therefore a mortgage on her separate
property for a debt for which she is mere surety, indorser, or guarantor
is void: but if, as an inducement to her contract, she makes a sworn
statement that contract or mortgage is for her own benefit, in respect to
her separate estate, she is estopped from alleging her suretyship as against
any one having no knowledge that the contract is one of suretyship She
is entitled to hold as exempt from execution her wearing apparel, articles
of personal adornment purchased by herself to the amount of $200
m value, all jewelry, ornaments, books, etc., which may have been
given her as presents; and other property to the amount of $300, except
as against indebtedness for the purchase money therefor. No tenancv
by the curtesy or dower. A widow takes one-third of her deceased hus^
band’s real estate in fee, and free from all demands of creditors where
the estate does not exceed $10,000; one-fourth, if under $20,000, and onefifth, if above that amount. She also takes a child’s interest in the
personalty where the number of children does not exceed two, and where
there are more than two her interest shall not be less than one-third of
the whole of personalty after payment of debts, and in all cases takes
f 500 without accounting, and may occupy the dwelling and forty acres
of her husband’s land for a year, rent free. But the one-third of her real
estate which the widow takes i n f e e , can not, upon her marrying again
be effectively conveyed or mortgaged by her, if there be a child or children’
or their descendants, alive by the previous marriage. Real estate whicll
husband and wife hold by title made to them as husband and wife is held
as an estate by entirety; it can not be taken for the debt of either: is not
subject to the lien of a judgment against either, except incase of the death
of either or upon divorce granted, when the estate is destroyed and
becomes subject to levy and sale; and a mortgage thereof by them both
for a debt of the husband has no legal validity.
M ortgages. (S e e C o n v e y a n c e s . )
N otaries are appointed by the Governor for four years and must
give bond of $1,000. The date of expiration of commission must be
affixed to certificates. While appointed to act in one county they mav per
form their duties throughout the State.
y
P a rtitio n o f Land. All costs and necessary expenses, including
reasonable counsel tees for plaintiff’s counsel, the amount to be deter
mined by the court, awarded and enforced in favor of those entitled to par
tition against the partitioners, and in such proportions against each
and according to equity as the court may determine, having regard to
their relative interests in the land or proceeds apportioned.
Partnership^ L im ited. Limited partnerships are formed by the
parties signing a certificate giving the name under which the partnership
is to be conducted, and the names and places of residence of the general
and special partners, the amount of capital stock which each partner has
contnbuted, the general nature of the business, and the time of the
commencement and termination of the partnership. The certificate must
be acknowledged before a justice of the peace, and recorded in the county
where the business is to be conducted and notice given by six successive
weeks’ publication in a newspaper.
P ow er o f A ttorn ey must be executed and acknowledged, and (if
for the conveyance of real estate, or to affect real estate) recorded, in the
same manner that deeds are made.
P robate Law. ( S e e A d m i n i s t r a t i o n o f E s t a t e s . )
P ro test. It is the custom of merchants to fix the liability of any
drawer or indorser of a bill of exchange, or indorser of a promissory
note, by procuring such bill or note to be regularly protested by a notary
public ior non-acceptance or non-payment. The statutory damages on
such protest are 5 per cent on the principal of a bill of exchange, ii
drawn or negotiated within this State, upon any person, at any place out
of this State, but within the United States, and 10 per cent if upon any
person, at any place without the United States.
Records. Deeds and mortgages of real estate are required to be
recorded in the office of the recorder of the county where the land lies
within forty-five days from their execution and delivery, to be valid against
any_ other person than the grantor or mortgagor, his heirs, or persons
having notice thereof. As between the original parties thereto, they are
good at all times, without regard to record. Chattel mortgages must be
recorded in ten days from execution. Recording is not compulsory as
between original parties to an instrument. Wills are recorded in the
clerk’s office of the county where probated, and also, in some cases in the
recorder’s office. Administrators must, in cases where land descends, file
statement as to the descent and the names of heirs, which statement must
be recorded in proper county. Decree and judgments settling title to real
estate must be recorded in the recorder’s office in the proper county.
, R edem ption. Real estate sold on execution may be redeemed at any
time within one year from the date of sale by payment of the purchase
money with 8_pe_r cent interest. Redemption may be had from tax sales
at any time within two years, by paying to the county treasurer for the
use of the purchaser the amount of purchase money named in the
certificate with costs of sale, and if redeemed within six months 10 per
cent additional. If redeemed after six months and within twelve months,
15 per cent, and after twelve months and within two years 25 per cent,
together with all taxes that have been paid thereon and 6 per cent interest
on the amount thereof. At the end of two years the purchaser is entitled
to a deed, and the owner has no absolute right of redemption. Persons
under disability, such as infants, insane persons, and married women, may
redeem lands which have been sold for taxes within two years after the
disability ceases.
R ep lev in . When any personal property is wrongfully taken or un
lawfully detained, or, if taken on execution or attachment, is claimed by
a third party, the owner or claimant may bring an action for possession
thereof. He may claim immediate delivery upon affidavit therefor, where
upon the sheriff takes possession of the property, and if a delivery bond
is given on behalf of the defendant within twenty-four hours, the prop
erty is returned to him, otherwise the plaintiff may give bond and take
the property; failing to do so it is returned to the defendant. The plain
tiff has twenty-four hours in which to file bond. Justices of the peace
have jurisdiction in replevin suits involving property not worth over
$200. Procedure is same before justice of the peace, except that the
plaintiff must file bond in all cases.
R evision. A republication of Revised Code, 1852 (as amended), by
Gavin and Hoard, with a third volume comprising all public acts to 1870,
by Edwin A. Davis, uniform with G. & H. 1870. A repnblication of the
Revised Statutes by Edwin A. Davis, condensing the foregoing three into
two volumes, with addition of laws since adopted, was issued 1876. The
last compilation by legislative authority, is that of 1881, known as the
Revised Statutes. Elliott’s Supplement to R. S. Ind. includes Acts 1883 to
Acts 1889. A comprehensive Annotated Edition of R. S. Ind. in two
volumes was published by E. B. Myers & Co. in 1888. A third volume was
issued in 1892, covering the statutes and annotations up to that year. Com-
BANKING AND COMMERCIAL LAWS—INDIAN TERRITORY—IOWA.
Dilations (by private enterprise) are Indiana Annotated Statutes, by Har
rison Burns, in four volumes, and Horner’s Annotated Statutes, by Frank
A. Horner, both embracing all general laws in force January 1, 1898;
Burns’ Second Revision (1901). Works of reference are Thornton’s Stat
utory Construction (1887); Thompson’s New Indiana Citations (to 135 Ind.
and 7 Ind. App., 1895), Thompson’s Citations (to 155 Ind. and 24 App.
1901); Thornton & Ballard’s Annotated Indiana Practice Code (1889);
Elliott’s Appellate Procedure (1892); Ewbank’s Appellate Procedure
(1900), and Burns’ Digest, two volumes (1905).
Salts. { S e e A c t i o n s .)
Taxes. State, county, township, municipal, school, and road taxes
attach as a lien on real estate on April 1st of each year, and penalties
attach on third Monday of same month in the next year. One-half of
all taxes may be paid without penalty, if paid before first Monday of
May; other half, if paid before first Monday of November. Sales of real
estate for taxes are held on the second'Monday of February, and all lands
on which taxes are delinquent for two years are offered. Owner has two
years in which to redeem, by paying the amount set forth in the cer
tificate of purchase, with all subsequent taxes paid, and 10 to 25 per
cent upon the whole sum, with legal interest from the date of purchase
or payment. Lands are sold for one year’s delinquency, but the follow
ing year’s tax (not yet delinquent) is embraced in the amount of the sale.
Transfer o f Corporation Stocks. Shares in any corporations
existing under laws of this State entitle the holder to a certificate, under
the corporate seal, signed bv the treasurer, certifying his property in
such shares. A book must be kept by the corporation at its office or
rincipal place of business, containing the names of stockholders, alphaetically arranged, showing where they reside, the number of shares
each holds, and the time the ownership begins. This book is presump
tive evidence in favor of the plaintiff of the facts it states in any suit
against the corporation or a stockholder therein.
W arehouse R eceip ts. Public warehouses are divided into two
classes, class “ A,” and class “ B.” Class “A” embraces all warehouses
elevators, or granaries in which grain is stored in bulk, and in which grain
of different owners is mixed together. Class “B” embraces all other
places where property is stored for a consideration. Warehouse receipts
are negotiable and transferable by the endorsenlent of the party to whom
such receipts may be issued; and such endorsement is deemed a valid
transfer of the property represented by such receipt, and may be either
in blank or to the order of another. Every such endorsement is deemed
to be a warranty that the endorser has good title and lawful authority to
sell the property named in the receipt. No sale of grain stored which is
not evidenced or accompanied by a transfer of the warehouse receipt given
therefor, is valid as against the b o n a f i d e holder of such receipt. All ware
house receipts for property stored in public warehouses of class “B” must
distinctly state on their face the brand or distinguishing mark on such
property.
W ills. Nuncupative wills, where property of more than the value
of $100 is bequeathed, are not valid, except as to the personal prop
erty and wages of soldiers and sailors in actual service. A nuncupative
will must be reduced to writing within fifteen days after it shall have
been declared and proved by two competent witnesses who shall have
heard the testator request some of those present to bear witness thereto.
No will in writing shall affect an estate, unless it be signed in the
presence of witnesses by the testator, or by some one for him in his
presence, with his consent, and attested and subscribed by two or more
witnesses at his request, and in his presence and that of each other.
W itnesses. Parties to or interested in a suit are competent witnesses,
but insane persons, children under ten years of age, unless they under
stand the nature and obligation of an oath, physicians, attorneys, and
clergymen, as to confidential communications, and husband and wife, as
to communications made to each other, are incompetent witnesses. In
suits in which an administrator or executor is a party, the opposite party
Is generally incompetent, and in suits by or against heirs of devisees,
founded on a contract with the ancestor, neither party is a competent wit
ness as to any matter which occurred prior to the death of he ancestor.
SYNOPSIS OP THE LAWS OF INDIAN
TERRITORY
RELATING- TO
BANKING AND COMMERCIAL USAGES.
{S e e
O k la h o m a .)
SYNOPSIS OF THE LAWS OF IOWA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Dale & Harvison, Attorneys at Law, Des
Moines. { S e e C a r d i n A t t o r n e y s ' L i s t . )
Accounts and C laim s of. Statements of account, for use in court
or for proof in the settlement of estates of deceased and in guardianship
matters, must be itemized and verified. A statement of “ balance,” or
“goods,” or “ merchandise ” is not sufficient.
A cknow ledgm ents of deeds to land made within the State are made
before some court having a seal, or judge or clerk thereof, or justice of
the peace, or notary public, or county auditor or his deputy. Elsewhere
in the United States before some judge of a court of record, or officer
holding the seal thereof, or by a commissioner of deeds, appointed
by the governor of the State, notary public, or justice of the peace;
when made before a judge or justice of the peace his official char
acter and the genuineness of his signature must be certified to by a
clerk of a court of record of the county or district, under seal of
the court, or by the secretary of State of the State or territory. The
form of certificate is statutory. Acknowledgments taken elsewhere
in the United States before any officer authorized to take acknowledgments_ in such State or territory, other than a clerk of the court or.
commissioner appointed by the governor, whose authority, official char
acter, _or signature needs no authentication, may. be recorded and
read in evidence only when accompanied by a similar certificate
showing his authority, official character, and the genuineness of his
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1217
signature. In foreign countries deeds may be acknowledged before
any officer authorized by the laws of such country to certify to
acknowledgments, or any ambassador, minister, secretary of legation,
consul, vice-consul, charge d’ affaires, consular agent, or other officer
of the United States properly authorized to issue certificate under the
seal of the United States, but the certificate of acknowledgment by
a foreign officer must be authenticated by one of the above named
officers of the United States, by his official written statement that full
faith and credit is due to the certificate of such foreign officer. Witnesses
are not required.
A ctions. Actions are commenced by serving notice, stating the
nature of the claim, and filing a petition, stating in ordinary and con
cise language the facts constituting plaintiff’s cause of action. The
petition must be filed ten days before the term of court at which
action is brought. All actions must be prosecuted in the name of the
real party in interest, and must be brought in the county where the
defendants, or some of them, reside; or, if real property is involved, then
in the county wherein the property is situated. If the action is on a
written contract, it may be brought where, by its terms, it is to be per
formed; or the cause, or some part thereof, arose. In actions upon
negotiable paper, in which a maker residing in the State is sued, the
action must be brought in a county wherein the maker, or if makers,
where one of them resides, except when made payable at a particular
place. Whenever an action is commenced upon a lost, stolen' or destroyed
note, bond, bill of exchange, certificate of deposit, check or other evidence
of indebtedness, upon demand of any defendant, the plaintiff must exe
cute a good and sufficient bond to indemnify and save harmless the de
fendants in said cause. Actions on official bonds, (with some exceptions,)
maybe brought in the county in which such bond was filed and ap
proved. Actions against insurance companies in any county in which the
principal place of business is kept or in which the contract of insurance
was made or in which the loss insured against occurred, or, in case of
insurance against death or disability, in the county of the domicile or
the insured at the time the loss occurred or in the county of plaintiff’s
residence. When a corporation, company, or individual has an office or
an agency in any county for the transaction of business, any actions
growing out of or connected with the business of that office or agency
may be brought in the county where such office or agency is located.
A dm inistration o f Estates. Where an executor is not appointed
by will, administration shall be granted: 1. To the spouse of the deceased.
2. To the next of kin. 3. To creditors. 4. To any other person whom
the court may select. Claims against the estate of a deceased person are
payable in the following order: 1. Debts entitled to a preference under
the laws of the United States. 2. Public rates and taxes. 8. Claims filed
within six months after the first publication of the notice given by the
executors or administrators of their appointment. 4. All other debts.
5. Legacies and distributive shares. All claims of the fourth of the
above classes not filed and allowed, or if filed and notice thereof npt
served within twelve months from the giving of the notice of appointl ent are "barred, except'as to actions against decedent pending in the
district or supreme court at the time of his death, or unless peculiar
circumstances entitle the claimant to equitable relief.
Affidavits. Affidavits may be taken before any person authorized to
administer oaths in the State where taken. If taken without the State of
Iowa, the official character of the officer administering the oath should be
evidenced in the same way as the official character of an officer taking
depositions. { S e e D e p o s i t i o n s . ) Affidavits may be taken within the State
for any lawful purpose, of one unwilling to voluntarily make an affidavit,
by filing a petition with an officer authorized to administer oaths, who
may cause the person to come before him and make affidavit. This pro
ceeding is statutory and must conform strictly to the Statutes of Iowa.
A lien s. Non-resident aliens or corporations incorporated under the
laws of any foreign country or corporations organized in this country
one-half of the stock of which is owned or controlled by non-resident
aliens are prohibited irom acquiring title to or holding any real estate in
Iowa, but the non-resident alien widow, heirs, or devisees of an alien or
naturalized citizen may hold the same for twenty years, and if not sold
within that time, escheats to the State. Aliens may acquire property of
any kind within a city or town or lands not exceeding 320 acres or stock
in any corporation for pecuniary profit and may alienate or devise the
same, but this law does not affect personal property. A lien holder may
acquire title to the property embraced in such lien but real estate so
acquired must be sold within ten years after title is perfected in an alien,
otherwise it will escheat to the State.
A p p eals. The supreme court has appellate jurisdiction over all
judgments and decisions of all courts of record. If the amount involved
is $100 or less the case is only appealable when the trial judge shall',
during the term in which judgment is entered, certify that the cause is
one in which the appeal should be allowed. Appeals from judgment of a
justice’s court are to the district court, and can only be taken where the
amount involved exceeds $35, and the same must be perfected within
twenty days after the rendition of the judgment.
Arbitration. All controversies which might be the subject of civil
action may be submitted to the decision of one or more arbitrators, the
same to be perfected by a written agreement, signed and acknowledged
by the parties to the agreement, stating the particular matters to be
arbitrated, together with the names of the arbitrators, and the court by
which judgment on award is to be rendered.
Arrest. No person can be imprisoned for debt on either mesne or
final process, unless in case of fraud. Debtors, however, may be ordered
to appear before a court of record wherein a judgment has been
rendered, and if the debtor is about to leave the State, or conceal
himself, he may be arrested and compelled to give bond to appear before
the court for examination, and in the meantime, not dispose of his
property.
A ssignm ents and In solven cy. General Assignments not valid
unless for benefit of all creditors, when assent of creditors is presumed.
The debtor must annex to the instrument of assignment a sworn
inventory and list of creditors; and such, instrument must be acknowl
edged and all of the papers recorded like a deed of real estate. The
assignment vests in the assignee title to all property of the debtor.
Assignee must give bonds, prepare a verified inventory and valuation,
and notify creditors by mail to file claims within three months. All
claims not filed within three months after notice published or within
such extended time as the court grants, not exceeding nine months,
including claims not yet due, can not be paid until all claims filed
within said time are paid. An assignment does not discharge the debtor
from his debts and liabilities, but only entitles creditors to share equally
in his estate. All claims filed must be itemized and sworn to.
A ttach m en t process will issue against all property not exempt
from execution on filing a sworn petition, alleging, 1st, that the
defendant is a foreign corporation, or acting as such; or 2d, that he
is a non-resident of the State; or 3d, that he is about to remove
1218
BANKING AND COMMERCIAL LAWS—IOWA.
his property out of the State, without leaving sufficient remaining
for the payment of his debts; or 4th, that he has disposed of his
property (in whole or in part) with intent to defraud his creditors;
5th, that the defendant is 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 plaintifE; 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 about 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 due
when nothing but time is wanting to fix an absolute indebtedness and
the 4th, 5th, 7th or 12th of the above causes can be alleged under
oath. The first attachment levied becomes the first lien, and there is
no prorating. The penalty on an attachment bond is three times the
amount claimed. Exemptions under attachment are the same as under
execution. A penalty in the way of fine from not less than $10 nor
more than $50 is imposed by the statute upon any person who shall
attempt to deprive any resident of Iowa from any exemption of property
from levy or sale under attachment and garnishment, where the claim
could have been sued in Iowa and is sent out of the State to be collected
by proceedings in attachment, garnishment, or any other process.
B an k s. The constitution provides that any act creating banking
associations must be submitted separately to a vote of the people. Stock
holders are individually responsible to creditors to the amount of their
stock over the stock held. In case of insolvency, bill holders are to be
preferred. Suspension of specie payment is not permitted.
S a v i n g s B a n k s may be formed by five or more persons of lawful age,
a majority of whom are citizens of Iowa, for the purpose of receiving
deposits, investing same, paying interest on dividends thereon and trans
acting business usual to such institutions, but can not issue paper to
circulate as money. Articles of Incorporation must be signed and
acknowledged by the corporators, stating the object and capital of the
corporation, its duration not exceeding fifty years, and' other specified
particulars, which articles must be recorded by the recorder of the county
in which the bank is to be located, and also by the secretary of State.
Notice of the incorporation must be published in same county giving the
substance of its articles of incorporation. The capital stock may be
$10,000 or more in cities, towns or villages of 10,000 or less population,
and $50,000 in larger cities, divided into shares of $100 each, to be issued
only upon full payment, and are transferable on the books of the company.
The capital stock may be increased by a vote of two-thirds of its shares,
cast at a stockholders’ meeting, after giving the prescribed notice, which
fact is proved by affidavit of the chairman and secretary of the>meeting,
and must be recorded like the original Articles of Incorporation. At any
.stockholders’ meeting each stockholder may cast one vote in person or by
proxy, for each share held by him. It is managed by a board of directors
composed of from five to nine members, each of whom must own one
share of stock if the capital is $20,000 or under; two shares if above that
but under $30,000; three shares if above that but under $40,000; four
shares if above that but under $50,000, and five shares if over $50,000.
Each director must take the oath required by law. A majority of
directors is a quorum, but three affirmative votes are necessary to carry
any measure. Deposits can not exceed twenty times the capital stock, and
said capital stock must be safely invested as a guaranty fund for the
better security of depositors. Investment of funds may be made in
bonds, or interest-bearing notes or certificates of the United States, o f of
this State, issued pursuant to the authority of law_, in bonds or warrants
of any city, town, county, or school district of this State, but the assets
of the bank shall not exceed 25 per cent of such bonds or warrants; in
notes or bonds secured by mortgage or deed of trust upon unincumbered
real estate in this State, worth at least twice the amount loaned thereon.
They shall not purchase, hold, or make loans upon the shares of their
capital stock. They may hold real estate to do business in, and also that
purchased at foreclosure or other judicial sales for debts due it, or by
redemption as junior mortgagee or judgment creditor. Such banks shall
not contract.debts except for deposits to obtain money with which to pay
deposits, and for the necessary expenses of transacting business. A cash
reserve must be at all times kept in savings bank doing a commercial
business in towns having a population of 3,000 or less inhabitants, equal
to fifteen per cent of their commercial deposits and eight per cent of their
savings deposits; if the population is over 3,000 such reserve must be 20
per cent of their commercial deposits and eight per cent of their savings
deposits. Three-fourths of this reserve may be kept on deposit subject to
Call in other State or National banks. Savings banks may be dissolved
by a three-fourths vote of the stockholders, after giving the prescribed
notice of a stockholders’ meeting. The name “ Savings Bank ” can only
be used hy banks organized under this chapter, and a violation of this
provision is made a criminal offense.
S ta te B a n k s .
Corporations may be organized to transact banking
business, other than savings banks, which must include the word “State”
in the corporate name, and the use of the word “State” in its name is
prohibited to all other banking institutions. There must be articles oi
incorporation signed by not less than five persons specifying the matters
required by law, which must be filed and recorded in the same manner as
required for savings banks. Capital of State banks must be $50,000 or
more in cities having a population exceeding 3,000, but such banks may
be organized with a capital of $25,000 in cities and towns having a less
population. The capital must be divided into shares of $100 each and
fully paid for when issued. Proof of payment of such capital must be
made to the auditor of State who issues a certificate showing compliance
with law, and four weeks’ publication of such certificate must be made in
a newspaper. The business and property are managed by a board oi
directors of not less than five, each of whom must be a shareholder, who
must own two shares if the capital is less than $30,000; three shares if
more than that, but less than $40,000; four shares if more than that, but
less than $50,000, and five shares if $50,000 or over. Each director must
take the oath required by statute, which must be filed with the auditor of
State. A reserve of not less than 10 per cent of their total deposits must
be kept in banks located in cities and towns having less than 3,000 popu
lation, and 15 per c«>nt of their total deposits in other State banks. Threefourths of said reserve may be kept on deposit subject to call, with other
State or National banks.
S a v in g s a n d S ta te B a n k s .
Use of bank funds or a loan to directors
otherwise than as provided by law is made a criminal offense. The limit
of liability to any bank, of any person, company, corporation, or firm,
including in the liabilities of a company or firm, the liabilities of the sev
eral members thereof, shall not exceed 20 per cent of the actually paid up
capital of such bank, but said bank may loan not to exceed one-half of
their capital stock to any person, corporation, company or firm on notes or
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
bonds secured by mortgage or deed of trust upon unincumbered farm land
in this State, worth at least twice the amount loaned thereon; the limit
of such loans must be verified by an officer and attested by the signature
of three directors, or verified by two officers and attested by two directors.
The auditor may examine any bank whenever he sees proper, and shall
call upon four times a year for a report of its. condition upon any given
day which has passed, and may call for additional reports when he deems
the same necessary. When any bank has refused to pay its deposits when
payable, or has become insolvent, or its_ capital is impaired, or has vio
lated the law, or is conducting its business in an unsafe manner, the
auditor of State may cause its affairs to be examined, the expenses to
be paid by said bank, but if the bank refuses to comply with the demands
of the auditor, with the assent of the attorney general, he may apply for
the appointment of a receiver. No general assignment by any bank for
the benefit of creditors is of any validity. If tne capital is impaired the
auditor may require an assessment to be made, and the directors of the
bank are individually responsible if they fail to make or enforce such
assessment. All stockholders of banks are liable to creditors of their
corporation over and above the amount of stock held by them to an
amount equal to their respective shares for all liabilities accruing while
they remain such stockholders, and may be severally competed to pay
such deficiency in proportion to the amount of stock owned by each,
which liability may be enforced by an assignee or receiver of the bank, or
by an individual creditor. Loan and trust companies may receive time
deposits and issue drafts on their depositaries, but are subject to examina
tion, regulation, and control of the State auditor like savings and State
banks, and their stockholders have the same liability as in savings or
State banks. No other kind of corporation is permitted to engage in bank
ing business. False statements, intentional fraud, and receiving deposits
when insolvent are prohibited under severe penalty. Any refusal of the
shareholder to pay such assessment, authorizes the sale of his stock to
pay the same. Shares of stock of savings and State banks and loan and
trust companies are assessed to the banks or company, not the individual
stockholders, and are listed at their real value less the capital actually
invested in real estate, and 25 per cent of the balance so ascertained is the
assessed and taxable value.
B ills o f E xchange. The negotiable instrument law recommended
by the Interstate Commission on uniformity of law has been enacted and
is now law in Iowa. Bills of exchange made and delivered prior to April
22, 1902, payable within the State of Iowa, except those payable on de
mand, are entitled to grace; all negotiable instruments executed after that
date are payable at the time fixed therein without grace. Where grace is
allowed, if the third day of grace fall on Sunday or on a holiday, demand
must be made on the preceding business day. A provision for the payment
of exchange, in addition to the amount of principal and interest, does not
render a bill of exchange non-negotiable. ( S e e D a y s o f G r a c e . ) An in
demnifying bond may be required in an action on any negotiable paper or
other evidences of indebtedness, lost, stolen, or destroyed. ( S e e A c t i o n s . )
B ills o f Lading. These are governed by the rules of the common
law, there being no statutory provisions on this subject, except a criminal
statute punishing false bills of lading or false affidavits or manifests, made
with intent to deceive.
C h attel M ortgagee Chattel mortgages must be signed, acknowl
edged, and recorded like deeds of real estate and if upon personal property
exempt from execution and attachment they are of nojvalidity as to such
exempt property unless signed by both husband and wife, if the owner of
such property is married. Any mortgage of personal property to seiure
the payment of money only, and in which the time of payment is fixed,
may be foreclosed by notice of sale, unless a stipulation to_ the contrary
has been agreed noon by the parties; or it may be foreclosed in court. The
purchaser takes all the title and interest which thé mortgagor had m the
property sold; and the sheriff or the person conducting the sale shall exe
cute a bill of sale of the property disposed of. They need not be renewed,
and are good until the cause of action is barred by the statute of limita
tion, to wit: ten years from the accruing of the cause of action. The
mortgagor, under written stipulations, is entitled to the possession of the
property. With proper covenants, a chattel mortgage will cover future
acquisitions to stocks of merchandise. Property covered by chattel
mortgages may be levied upon, if not exempt from execution, when
the debt is due, by paying, or offering to pay, the amount of the
mortgage debt, or depositing the amount with the clerk of the district
court of the county where the mortgaged property is found. This does
not, however, prevent contests as to the legality of the mortgage or of
the amount due.
C ollateral S ecu rities. When shares of stock of a private corpora
tion are transferred as collateral security, the transferee may, in writing,
notify the secretary of the corporation, and from the time of such notice
and until written notice that the stock has ceased to be collateral, the
stock shall be considered in law as transferred on the books of the
corporation without actual transfer, and when the transferee ceases to
hold the stock as collateral, it is his duty to notify the secretary of the
corporation of that fact. The secretary must keep a record of all or such
notices subject to public inspection. No holder of stock as collateral
security is liable for assessments on the same. Collaterals and pledges
are governed by the terms of the deposit, if in writing, and no sale oi
them can be made if the writing so provides; otherwise, chattel property
pledged or deposited as collateral security maybe sold under the pro
visions of law which are substantially similar to the foreclosure of chattel
mortgages under notice and sale. But the pledgee is given the alternative
right of foreclosing such collaterals or pledge in equity, in which action
all persons interested therein may be made parties; judgment will he
rendered for the amount due the pledgee and costs with special execution
for the sale of the pledge or collaterals and general execution for any
balance unsatisfied.
C onditional Sales. No sale, contract, or lease wherein the transfer
of title or ownership of personal property is made to depend upon any
condition, shall be valid against any creditor or purchaser of the vendee
or lessee in actual possession, obtained in pursuance thereof, without
notice, unless the same be in writing, executed by the vendor or lessor,
acknowledged and recorded the same as chattel mortgages.
C ontracts. These are governed mainly by the common law. The
statutory provisions with relation to purchases, sales, or mortgages of reai
and personal property, conditional sales of personal property, statutes_ oi
fraud and statutes of limitation being treated under their appropriate
titles.
C onveyances. No particular form is necessary for conveyances or
mortgages. The name of the parties, the description of the property, tne
consideration, the date, signature, and acknowledgment, is all th at»
necessary; as between the parties they are valid without being recorded.
The wife must join with her husband in conveyances, and a conveyance
of the homestead is of no validity unless husband and wife concur in ana
sign the same joint instrument. A corporation executes conveyance»
under its corporate seal; such convevances must be acknowledged by tne
proper officers.
BANKING AND COMMERCIAL LAWS—IOWA.
Corporations. All corporations are organized under the general
law oi the State. Any number of persons can incorporate for the transac
tion of any legal business. The articles of incorporation for pecuniary
Drofit must be signed by the corporators and acknowledged, filed with the
recorder of the county where the principal place of business is to be
located, and with the secretary of State. They must also pay an incornoration fee of $25 and an additional fee of $1 for each $100 of stock
authorized in excess of $10,000, mutual creamery associations being ex
empted. The same fee must be paid upon renewal of a corporation after
its original term has expired. The articles must fix the highest amount of
indebtedness which may be incurred, which must not exceed_ two-thirds of
their capital stock, and may also determine whether the private property
is to be exempt from corporate debts. All stockholders are liable to
creditors for unpaid installments of stock. No certificate or shares of
stock shall be issued by any association without having endorsed on the
face thereof the amount or proportion of the par value which has been
paid to the corporation issuing the same and whether such payment has
been in money or property; violation of this provision is a criminal offense.
Foreign corporations, for pecuniary profit, other than mercantile or manu
facturing, desiring to do business in this State, must file with the secretary
of State a certified copy of its articles, duly attested, accompanied by
resolutions of its board of directors or stockholders, authorizing the filing
thereof, and also authorizing service of process on any of its officers or
agents doing business in this State, and asking for a permit; it must also
nay the same incorporation or renewal fees required of domestic corpora
tions except those organized prior to September 1, 1886, whereupon it
will be issued by the secretary of State, and without any permit, they are
to be subjected to forfeit $100 for each and every day while engaged m
the transaction of business within the State; also a fine of like amount or
imprisonment, not exceeding 30 days, of the agent conducting the business
of such corporation without a permit. They are not, however, prevented
from buying, selling, and otherwise dealing in notes, bonds, mortgages,
and other securities. ( S e e C o l l a t e r a l S e c u r i t i e s j T r a n s f e r o f C o r p o r a t i o n
^t0(ylCS )
Costs are taxed in favor of the successful and against the losing party
to a suit; where each party is partially successful, there is an apportion
ment of costs. A sufficient tender kept good, and an offer to confess judg
ment sufficient in amount, will throw costs on to the opposite party.
Courts. T e r m s a n d J u r i s d i c t i o n . The district court has jurisdic
tion of all actions, civil and equitable, and has criminal and probate juris
diction. Superior courts maybe established by the vote of the people
in any city of 5,000 inhabitants. It has jurisdiction to try all violations
of city ordinances, and the same criminal jurisdiction as justice of the
peace courts. It has jurisdiction to try and determine civil and criminal
appeals and civil writs of error from justices of the peace, situated in the
township where the courtis located. Has the same jurisdiction as the
district court to try all suits in law and equity, except granting divorces,
alimony, and separate maintenance, and it has no probate jurisdiction.
Transcripts from superior and justices1 courts must be filed in district
court to create a lien on real estate, and are then enforced as judgments
of the district court, justice's jurisdiction, $100, or. by written consent
of parties. $300. The supreme court has only appellate j urisdiction and
holds sessions at Des Moines, January to May, from May to September
(less vacation), and from September to December.
C reditors1 B ills. A suit in equity in the nature of a creditor’s bill
is permitted in this State in favor of a creditor, who has reduced his claim
to judgment, for the purpose of subjecting real estate, fraudulently con
veyed by the debtor, to the payment of such judgment. A statutory
modification of this proceeding is also allowed to judgment creditors in
certain cases to reach personal property.
D ays o f Grace. Every negotiable instrument is payable at the time
fixed therein without grace. When the day of maturity falls upon Sunday,
or a holiday, the instrument is payable on the next succeeding business
day. Instruments falling due on Saturday are to be presented for payment
on the next succeeding business day, except that instruments payable
on demand may, at the option of the holder, be_ presented for payment
before 12 o’clock noon on Saturday when that entire day is not a holiday.
A demand made on any one of the three days following the day of maturity
of the instruments, except on Sunday or a holiday, shall be as effectual
as though made on the day on which demand may be .made binder the
provisions of the negotiable instrument law, and the provisions of that law
as to notice of non-payment, non-acceptance, and as to protest, shall
be applicable with reference to such demand as though the demand
were made in accordance with the terms of that law; but these provisions
shall not be construed as authorizing demand on any day after the third
dav from that on which the instrument falls due according to its face.
Tlie uniform negotiable instrument law has been adopted m Iowa, l ne
legal holidays for bank purposes are: Sundays, January 1st, leOruary
22a, May 30th, July 4tb, first Monday in September, December 2otn,
and any Past or Thanksgiving day appointed by the President of the
United States or Governor of the State. ( S e e B i l l s o f E x c h a n g e . )
D eeds. ( S e e C o n v e y a n c e s . )
D epositions. Depositions may be taken within the State upon notice
and within or without the State upon commission, but the parties may
agree to some other method. When served upon the party, at least live
days’ notice is required, and if served upon an attorney of the
*
least ten days1notice is necessary. If the party is a non-resident or his
residence is unknown or in case of default, if such party has no attorney
of record who is a resident of the State, the notice of taking or of suing
out a commission to take a deposition may be Riven bv filing the notice
or notice and copy of the interrogatories attachedwiththeclerk of the
court in which the action is pending, ten daysbefore the taking of the
depositions or issuance of the commission. When taken upon commis
sion a copy of the interrogatories to be propounded to the witness must
accompany the notice. When notice of suing out a commission is served
the adverse party may elect to appear orally and cross examine the
witness by serving notice of such election on the oppositepmtyorhis
attorney before the issuing of the commission; the other party must then
inform the party or attorney so electing, of the place, date and hour of
the taking of the deposition, at least, five days before the dePC®itton is
taken. In such case the party taking the deposition
waive thecommission and examine orally. The deposition shall then reduced
to writing in the manner required for taking depositions
n o t ic e .
When taken upon commission no party, agent, or attorney of sach party
may be present unless both are present or representedjand the certifies «3
must state if any party, agent, or attorney was present. The deposition
may be taken in shorthand and must be accompanied by » ttanslatimi o,
the shorthand notes, and the notes and translation must be returned,
together with the deposition, and the stenographer must be swom.
Depositions may be taken before the clerk or judge of any court of
record, any commissioner appointed by the Governor of Iowa to take
acknowledgments of deeds in another State, a notary public °r consul or
consular agent of the United States, or by any person designated by tne
court or agreed upon by the parties. Each deposition must be accom
panied by a certificate of the person taking it, certifying the facts
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1210
required by law, which are endorsed upon the commission when one
issues. If the officer have no seal, unless selected by agreement of the
parties, his signature and official character must be authenticated by
the certificate of a court of record under its seal, or that of the officer
having in charge the seal of the State. A seal is presumptive evidence
oi the genuineness of the signature and the official character of the officer
having a seal. Courts are also authorized to appoint commissioners to
take deposition. They may be written down before any judge, consul,
justice of the peace, notary public, or any commissioner duly appointed
by the Governor of this State.
D escen t and D istribution o f P rop erty. Subject to rights oi
dower and other charges thereon, and burdens imposed during the life
time of the decedent, and in the absence of a valid Will, the estate of
one deceased shall descend in equal shares to his children. The heirs
of any deceased child shall inherit in same manner as though such child
had outlived his' parent. If the intestate leave no issue, one-half of his
estate shall go to the parents, the other to the spouse. If no surviving
spouse, the whole thereof shall go to his parents or the survivor of them;
and so on through ascending ancestors and their issue, if both parents
be dead. Personal property not necessary to pay debts is distributed
to the same persons, and in the same proportions as though it were
real estate.
D ivorce. Divorces are granted in equity in the district court for the
following causes: 1. Adultery committed subsequent to marriage.
2. Desertion, without reasonable cause, for two years. 3. Conviction
of felony after marriage. 4. Addiction to habitual drunkenness after
marriage. 5. Inhuman treatment such as to endanger the life of wife.
The husband may obtain a divorce for like causes. When a divorce
is decreed, the court may make such order in relation to the children
and property of the parties, and the maintenance of the wife, as sbati
be right and proper, and the parties forfeit all rights acquired bj[ the
marriage. They are not granted on the testimony of the plaintiff
alone and all such actions must be heaid in open court.
Dow er. Dower in Iowa is abolished, but the surviving spouse is
entitled to one-third in value of all the legal and equitable estates m
real property possessed by the deceased spouse_at any time during the
marriage, which have not been sold on execution ot any other .judicial
sale, and to which such survivor has made no relinquishment of right, ihe
limitation of actions to recover dower, where the conveyance was signed
by only one spouse, and was executed prior to January 1, 1885, is stated
elsewhere. ( S e e L i m i t a t i o n s : )
Evidence. Evidence is governed mainly by the rules of the common
law There are numerous statutory modifications which can not be
satisfactorily condensed within the space we can devote to a synopsis
of the law.
E xecutions may issue immediately upon the rendition of judgment,
and are returnable in seventy days from the date of issue. On the
judgment debtor entering good and sufficient security by bond on the
Droner court records for the amount of such judgment, interest, and
costs—accrued and to accrue—he can have a stay of execution as
follows: Under $100, three months; above that sum, six months, buch
bond shall be filed and 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 stay, if personally served with process,
shall not afterward be allowed to appeal. If the judgment is not
fullv paid at the expiration of the stay, judgment is entered against the
surety, and execution may be issued forthwith. After stay, judgment
draws 8 per cent interest by operation of law. There can be no
stav for wages due a mechanic or laboring man, nor by a surety on stay
bond. Defendant may redeem real property sold under execution at any
time within twelve months, meantime remaining m possession of the
property, but where he has taken an appeal or stay of execution he can
not redeem. During the first six months he has exclusive right of
Redemption, but after that time, and before the expiration of nine
months, any creditor having a lien can redeenl; thereafter the owner
has the exclusive right of redemption.
E xem ptions. Homestead of 40 acres in country and half an acre
in city or town, with buildings, without regard to value. Pension money
or homestead procured by Pensmn money, exempt from ^tachment or
execution, whether the pensioner is the head of a family or not, and
this applies to debts contracted prior to the purchase of the homestead.
Pension money, whether in possession, deposited, loaned, °r invested.
Personal property exempt includes tools, instruments, library, necessary
team etc of mechanic, farmer, teacher, or professional man; wearing
apparel, household and kitchen furniture, $200: certam farm ammals
and necessary feed for six months. Foregoing relates only »resndents,
being heads of families; unmarried persons and non-residents being
only entitled to retain their own clothing and trunks, save and except
pensioners. Where debtor is a printer, the printing press and types,
Fumitoe and material, up to $1,200, are exempt. Earnings of deBtor
within 90 days of levy are exempt. Poultry exempt to head of a family,
and to any woman whether the head of a family or not. One sewing
machine exempt to seamstress. No exemptions waived by failure to
«cen t to levy of execution or to designate or select exempt property,
unless he fails or neglects to do so when required in writing by the
officer about to levy thereon.
F id elity Companies. ( S e e G u a r a n t y C o m p a n i e s . )
F oreign Corporations. With few exceptions foreign corporations
authorized to do business in one State of the Union may also do business
in the State of Iowa, but- in most cases copies of their articles of incorpo
ration must be filed with the secretary of the State. Subsequent amend
ments must be similarly filed. There are certain special provisions as
to fire and life insurance, fidelity or guaranty, building and loan, railroad,
and a few other corporations. ( S e e C o r p o r a t i o n s . )
F oreign Judgm ents. These judgments can only be enforced by a
suit thereon brought in a court of proper jurisdiction within the State
of Iowa and are subject to the same defenses as at the common law, such
as want of jurisdiction of the court rendering it, no Pr°per service of
notice, or process, payment, etc. If judgment is obtained thereon, the
judgment is thereafter enforced as a domestic judgment.
Fraud. In actions for fraud, heretofore sole'y cognizable in a court
of chancery, th® cause of action shall not be deemed to have accrued
until the fraud complained of shall have been discovered by the party
aggrieved by the exercise of due diligence. In actions brought by a
judgment creditor to set aside a fraudulent conveyance of property from
one spouse to the other and to subject said property . to execution,
either husband or wife may be compelled to testify against the other.
Gross fraud is punishable by fine or imprisonment.
G arnishm ent. ( S e e A t t a c h m e n t s . )
Guaranty Com panies. Under the statutes of the State of Iowa
these are generally termed “fidelity” companies. They may be accepted
as sureties upon public and legal bonds, and may be released from lia-
1220
BANKING AND COMMERCIAL LAWS—IOWA.
bility like private persons. Information as to the method of obtaining a
certificate from the auditor of State necessary to entitle them to do busi
ness within the State of Iowa, can be obtained by communicating with
that officer.
H olidays. The holidays established by State law relating to bank
paper, are set out under sub-title “days of grace,” to which refer. The
same days, except the first Monday in September, public fast days, or
any other public holiday, are legal holidays upon which no person can be
held to answer or appear in any court, or take depositions on notice.
Otherwise, a holiday is not d i e s n o n j u r i d i c u s , a legal 'day for court
purposes.
H usb and and' W ife. ( S e e M a r r i e d ¿ W o m e n . )
In ju n ction s may be granted originally, or as auxiliary to the main
case at law or in equity, upon filing a bond in an amount to be fixed by
the court or a judge thereof. The general rule is, that injunction will not
be granted except to restrain and prevent irreparable injury.
In solven cy. ( F o r I n s o l v e n c y , s e e A s s i g n m e n t s a n d I n s o l v e n c y .)
In su ran ce C om panies. Foreign insurance companies, whether
stock or mutual, before doing business in the State of Iowa must obtain
a certificate from the auditor of State, which certificate must be renewed
annually on the 1st day of March. They must also file annual reports
upon blanks furnished by that officer and must authorize the service of
notice or process upon the auditor of State, such service to be deemed
personal service within the State upon such company. Full particulars
as to these requirements can be obtained from that officer.
In terest.' Legal rate, 8 per cent. Judgments draw 6 per cent, or
such rate as is fixed by the contract on which the judgment or decree
is rendered, not exceeding 8 per cent per annum. Open accounts draw
6 per cent after six months from date of last item; money loaned,
money due, money due on settlement of accounts, bear interest at 6 per
cent per annum. Contract for more than 8 per cent forfeits all interest
and costs.
Ju d g m en ts in the district and superior courts may be obtained at
first term after suit commenced, if undefended: an equitable action,
except one for foreclosure of mortgage, or mechanic’s lien, or for divorce,
is triable at the second term after the case is at issue. Judgments of the
district _court are liens on real estate owned by the debtor at the time
of_rendition. If the lands lie in any other county, from the time of
filing therein an attested copy of the judgment. Lien also covers all
lands which defendant may acquire within ten years from date of
judgment, or upon which a levy is made after ten or before twenty
years from the date of ihe judgment, but this lien dates only from the
time of the levy. Judgments of superior courts and justice of peace
courts become liens on real estate by filing transcript in district court
within county where obtained, and become liens in other counties in the
same manner as if rendered in the district court.
J u risd iction .' Judgments rendered without jurisdiction of the sub
ject matter are void. Those rendered without jurisdiction of the person
are generally voidable. _As the district court of this State is a court of
general original jurisdiction, questions of jurisdiction are mainly avoided
by bringing actions in that court; in all doubtful cases this should be done.
The question of jurisdiction of subject matter can be taken advantage of
at any stage of the proceeding or by collateral attack, and, in some cases,
this is true of jurisdiction of the person, but the rule in this State is that
?n appearance in a case can not be specially made to raise the question of
jurisdiction of the person, and if an appearance is made, this confers
jurisdiction of the person.
License. In a few cases, such as peddlers, licenses are issued by the
State. Otherwise licenses are only issued under ordinances of cities and
towns, passed under statutory authority. In the latter cases, the ordi
nances of the particular city of town in question and the statutory
authority must be consulted.
L iens. These are mainly -created by statute and are enforceable in
equity. In a few cases, and under peculiar circumstances, equitable liens
on real estate are established and enforced in equity.
L im itations. Actions for injuries to person caused by defective
roads, bridges, sidewalks, or streets, must be brought within three months,
unless written notice to the municipal corporation has been given within
sixty days from the injury; to enforce payment of a penalty or forfeiture
under an ordinance, within one year; for injuries to person or reputation,
Including injuries to relative rights, whether based on contract or tort, or
to recover a statutory penalty or enforce mechanic’s lien, two years.
Against a public officer for official negligence, or malfeasance, including
money collected on execution and not paid over, three years. On un
written contracts, open accounts, fraud solely cognizable in equity, and
to set aside a will, five years. On written contracts, and to recover
real estate, ten years. On judgments in courts of record, twenty years.
All actions to foreclose mortgages, executed prior to January 1,1885, are
barred one year from and after July 4, 1906, unless the record of the
mortgage shall show, or unless, within that year a notation made on the
margin of ihe record of the mortgage, by the holder thereof, shall show
that such debt is not yet more than ten years past due. Where a convey
ance was executed prior to January 1,1885. by one spouse, in which the
other spouse did not join, the spouse not joining, or his or her repre
sentatives. shall be barred from tbe right to bring an action to recover
dower in the lands so conveyed, unless such action shall be commenced
within one year from and after July 4, 1906. If such right of action has
not accrued ,on that date, then a right of action shall nevertheless be
barred within two years from said date unless the spouse claiming dower
shall, within that time, file a notice and affidavit of such claim to dower
in the recorder’s office of the county where the land is situated. Time
of defendant’s absence from this State is deducted in computing the
time of limitation. Where, by the death of the party to be charged the
bringing of an action against his estate shall have been delayed beyond
the period provided for by Statute, the time within which an action
may be brought against his estate is extended for six months from the
tlate of the death of decedent. Minors and insane persons have one
year_ after the termination of disability to commence actions. Written
admission of debt, of written promise to pay, revives the debt.
Married W om en may own in their own right real and personal
property acquired by descent, gift, or purchase, and may manage, sell,
■convey, and devise the same by will in the same manner as the husband
can property belonging to him. Neither husband nor wife is liable for the
-debts or liabilities of the other incurred before or after marriage, nor
are the wages, earnings, or property of either, nor the rent or income
of such property, liable for the separate debts of the other. Contracts
may be made by a wife and liabilities incurred, and the same enforced
by or against her, to the same extent and in the same manner as if she
were unmarried. Neither spouse has any interest in property owned by
ihe oiher which can be the subject of contract between them, nor such
interest as will make such property liable for contracts or liabilities of
the one not the owner of the property. But both are liable for the
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
expenses of the family, and the education of the children, whether con
tracted for by one or the other. They may be sued jointly or separately
therefor.
M ines and M ining. The right to mine is not limited or controlled
by statute. Mines are subject to inspection and are governed by stringent
regulations concerning proper ventilation, sufficient propping of the super
structure, payments of the miners at certain periods, ana in opposition to
truck stores. These provisions are quite voluminous and must be care
fully examined by those engaging in the mining business.
M inors. The period of minority extends, in males, to the age of
twenty-one years, and in females to that of eighteen years, but all minors
attain their majority by marriage, so far as civil contracts are concerned.
By consent of parent or guardian marriage between a male of sixteen
years and a female of fourteen years is valid.
M ortgages must be subscribed and acknowledged by the parties
creating the lien and recorded same as deeds are foreclosed by equitable
action. The wife should join in the instrument, except mortgages for
purchase money, and mortgages upon non-exempt personal pioperty.
The mortgagor has one year in which to redeem real estate after
execution sale, except as stated under the sub-title“ Executions.” When
a mortgage is paid off, satisfaction thereof must be made on margin of the
record, or by satisfaction piece, acknowledged and recorded. If no satis
faction is entered within thirty days after request in writing, the mort
gagee forfeits $25. ( S e e C h a t t e l M o r t g a g e s .) The limitation of actions
to foreclose mortgages, executed prior to January 1,1885, is stated else
where. ( S e e L i m i t a t i o n s . )
N otaries. These officers are appointed and commissioned by the Gov
ernor, upon filing a bond and paying the fee required by law. They have
power to administer oaths, take depositions, and the usual power of such
officers concerning presentation, demand, protest, and notice of protest of
negotiable commercial paper.
N otes an d B ills o f E xch an ge. Damages allowed on protested
paper, 3 to 5 per cent. To hold indorser note must be duly presented,
payment refused, protested, and indorser notified, unless waived in
writing. Defenses to non-negotiable paper and accounts accrued after
notice in writing of assignment to maker invalid as against assignee.
All rights of action are assignable. ( S e e B i l l s o f E x c h a n g e a n d D a y s o f
G r a c e .)
The requirements for an indemnity bond in an act'on on lost
negotiable paper, etc., are stated elsewhere. ( S e e A c t i o n s .)
N ursery Stock. The importation into Iowa of nursery stock is
prohibited unless accompanied by the certificate, required by law. to the
effect that it is free from any dangerously injurious insect or plant dis
ease.
P artn ersh ip s, L im ited and Sp ecial. Limited and special partner
ships are permitted, but not favored. The statutes on this subject must be
strictly complied with. A certificate showing prescribed details and par
ticulars of the partnership must be signed, acknowledged, and filed in the
office of the clerk of the district court of the county m which the princi
pal place of business is situated, to be there recorded and similarly
recorded in each county where such partnership has a place of business.
There must be an affidavit that the amount stated in the certificate has
been actually contributed by each separate partner. Publication must be
made of the certificate and affidavit for six weeks in two newspapers in
each senatorial district in which the partnership is to transact business.
P ow ers o f A ttorney. A power of attorney to convey, or in any
manner affect real estate, must be acknowledged and recorded. A
revocation of such power must be acknowledged and recorded in the
same office wherein the original power of attorney is recorded.
P rob ate Law. ( S e e A d m i n i s t r a t i o n o f E s t a t e s . )
P rotest. ( S e e N o t e s a n d B i l l s o f E x c h a n g e . ) In case of a refusal by
the maker, drawer, or acceptor of any promissory note, bill of exchange,
or other commercial paper, the notary making the demand may inform
the party to be charged, if in the same town, or township, by notice depos
ited in the nearest post office, on the day of demand, and no other notice
is necessary.
R eceivers.' In distributing property in the hands of a receiver there
shall be paid in the following ordef: (1) Taxes or debts due the United
States; (2), Taxes or debts due the State; (3), Debts owing to employés
for labor, not exceeding $100.00.
R ecords. All instruments conveying or creating liens upon the real
or personal property, all conditional sales and articles of adoption of a
minor child, must, after having been signed and acknowledged, be
recorded in the office of the recorder of deeds in the proper county or
counties where the property conveyed is situated, or the minor child is.
Unless so recorded, such instruments are invalid as to a bona fide pur
chaser or encumbrancer or as articles of adoption.
R ed em ption. Kedemption from a sheriff’s sale of real estate, whether
sold under a general or special execution, may be made by a creditor
who has a lien on_ the property sold, at any time after six months from
date of sale by paying to the clerk of the court the amount provided by
statute, being, generally, the amount of the purchaser’s bid, with interest
at the same rate that the judgment bears. Within the time named cred
itors may redeem from each other. After nine months, and within one
year from the date of sale the owner of the real estate sold has the
exclusive right to redeem from such sale, and, in so doing, the debtor
must pay off the claims of judgment creditors, who have made redemp
tions as hereinabove stated, in addition to the arpount originally bid.
R ep levin . In actions for the recovery of personal property, the peti
tion must be verified; and if plaintiff desires immediate delivery of the
property, he shall execute a bond for double tee value of the property
sought to be recovered. The defendant may stay all proceedings ana
retain 1he property by executing a bond to the plaintiff, with sureties to
be approved by.the clerk.
Service. Service of original notice of actions commenced, and a
large number of other papers required by law to be served in the same
way, is made by reading the notice or paper to be served to the particular
person and delivering to him a copy of such notice or paper, but lie can
waive either the reading or the copy or both. In cases affecting the title
to or liens upon real estate, divorce, and some other cases, publication
service may be made by publishing the same in a newspaper for four con
secutive weeks, the last publication being ten clear days before the first
day of the next term of court.
Su its. ( S e e A c t i o n s . )
T axes. Property is listed at its actual value which means its value
in the market in the ordinary course of trade. Twenty-five per cent of
this actual value is the assessed and taxable value, .but the assessed
valuation of any taxing district can not exceed the average maximum
valuation possible for assessment for the years 1896 and 1897.
State and county taxes become due and payable on first Monday
of January, and one-half thereof may be paid before the first day of
March succeeding the levy, and the remaining one-half before the first day
BANKING AND COMMERCIAL LAWS—KANSAS.
of September following: provided, where the half has not been paid
before the first day of April succeeding the levy, the whole tax shall
become delinquent from the first day of March following the levy. If the
second installment be not paid before the first day of October succeeding
the levy, it shall be delinquent. All delinquent taxes draw interest at the
rate of 1 per cent per month until paid. Personal property is liable to
distress and sale for all taxes, and the tax list is the warrant therefor.
Taxes on stocks of goods or.merchandise are and continue a lien thereon
when sold in bulk and may be collected from the owner, purchaser or
vendee. Taxes on personal and real property are made a perpetual lien
on real property. Lands are sold on the first Monday in December
after taxes become delinquent. Three years are allowed in which to
redeem by payment of amount for which lands were sold, with 8 per
cent penalty, and 8 per cent per annum interest upon the whole
amount. Before a valid tax deed can be executed the owner of the tax
sale certificate must after two years and nine months from the tax sale,
give to the person to whom the said land ,is assessed, and the person
m actual possession written notice that deed will be taken ninety days
hence. Where land is assessed unknown and is unoccupied, no notice
is necessary. A non-resident may file with the treasurer of the county
a written appointment as his agent of some resident of the county
where the land is situated, upon whom personal service must be made.
Taxes become a lien as between vendor and vendee December 81st of
each year. City taxes are levied by the city council and collected by the
county treasurer, the maximum levies being fixed by law. In a few cities
under special charters, the assessment, levy, collection and tax sales are
made in accordance with their charters.
Testim ony. ( S e e E v i d e n c e a n d D e p o s i t i o n s . ) All testimony,'not taken
by deposition, must be introduced by oral examination and cross-examina
tion m open court.
Transfer o f C orporation Stocks. Sec. 1078. The transfer of
shares is not valid, except as between the parties thereto, until it is regu
larly entered on the books of the company, so as to show the name of the
person by, and to whom transferred, the numbers or other designation of
the shares, and the date of the transfer; but such transfer snail not in
any way exempt the person making it from any liability of said corpora
tion created prior thereto. The books of the company must be so kept as
to show the original stockholders, their interests, the amount paid on
their shares, and all transfers thereof; and such books, or a correct
copy thereof, so far as the items in this section are concerned, shall be
subject to the inspection of any person desiring the same. ( S e e
C o lla t e r a l S e c u r it i e s .)
Trust Com panies. Domestic trust companies are organized under
and governed by the general corporation laws of the State. Foreign trust
companies doing business in this State are governed and controlled by the
general statutes concerning and relating to foreign corporations doing
business in Iowa. . ( S e e C o r p o r a t i o n s . )
Trust D eeds. They must be executed and foreclosed, and consid
ered as mortgages. That is, the power of sale on notice is abolished, and
they must be foreclosed by equitable action.
W ages. Assignment of exempt wages, (three months’ earnings), by
the head of a family are invalid, nnleps evidenced by a written instru
ment. and if the assignor is married, it must be by a joint instrument,
signed and acknowledged by both husband and wife. Such assignments
take priority from the date of notice thereof to the employer.
W arehouse R eceipts. Any person, firm, or corporation desiring to
issue elevator or warehouse certificates (or receipts) must file a written
declaration with the recorder of deeds in the county where his or its
elevator or warehouse is situated, setting forth the particulars required by
statute, which declaration must be recorded by the recorder of deeds.
Thereafter he or it may issue certificates for commodities actually in such
elevator or warehouse, but the certificates must conform to the statutory
provisions. A register of certificates issued must be kept by the parties
issuing them. A violation of these provisions, issuing double certificates
for the same property, or selling or encumbering property included in any
warehouse receipt, is made a criminal offense. There is also a-criminal
statute against issuing false warehouse receipts or certificates.
W ills. Any person of full age and sound mind may dispose of his
property by will, subject to the rights of homestead and exemption
created by law and the distributive share in his estate given by law to the
surviving spouse, except sufficient to pay his debts and expenses of
administration. Wills, to be valid, must be written, witnessed by two
competent witnesses, signed by the testator, or by some person in his
presence and by his express direction. Subscribing witnesses can derive
no benefit from a will, unless there be two competent witnesses besides
them. Wills executed outside of Iowa, in accordance with the laws of
the State where executed or of the testator’s domicile, if in writing and
subscribed by the testator are valid in Iowa. If probated in any other
State or country they shall be admitted to probate in this State on the
production of a copy of such will, and of the original record of probate
thereof, authenticated by the attestation of the clerk of the court in which
such probation was made or of the probate judge, under seal, if they have
one. All wills must be probated before they can be effectual.
SYNOPSIS OF THE LAWS OF KANSAS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by J. G-. Sloneckeb, Esq., Attorney at Law,
Topeka. ( S e e C a r d i n A t t o r n e y s ' L i s t . )
A ccounts and Claims. Accounts and claims draw interest from
maturity at the rate of 6 per cent. In actions on accounts if the account
is verified it is p r i m a f a d e evidence of its correctness, and claims against
estates must be verified, showing that the account is correct, and that there
are no setoffs or counter claims. Open accounts are barred in two years.
A ckn ow led gm en ts. ( S e e D e e d s . )
A ctions. Civil actions are begun in the courts by filing a petition
and praecipe in the office of the clerk, and causing summons to issue
thereon. Security for costs must be given by the plaintiff in each case.
Non-resident plaintiffs may deposit a sum of money satisfactory to
the clerk, and residents can deposit $15 in lieu of bond for costs.
Actions concerning real estate must be brought in the county in which
the land or a part of it is situated; other actions must be brought in the
county in which the defendants or some one of them reside or may be
summoned, except actions against foreign corporations and non-resi
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1221
dents, and in the latter case the action may be brought in any county
where the defendant has property or debts owing to him. Actions against
domestic corporations may be brought in the county in which the corpor
ation is situated or has its principal place of business, or in which any
of the principal officers reside or may be summoned. If the corpor
ation is an insurance company, the action may be brought in the county
where the cause of action or some part thereof arose, and as to foreign
insurance companies the summons may be served upon the State super
intendent of insurance. Actions for divorce may be brought in the
county of which the plaintiff is an actual resident.
A d m in istration o f E sta tes. Probate courts in each county have
jurisdiction of estates. Executors or administrators must give bond in
double the amount of the value of the estate, but in the cases of execu
tors where the will provides that no bond shall be required the court shall
not require any. Letters of administration shall be granted to the widow
or next of kin, unless they voluntarily renounce the same. An inventory
of the estate must be filed within sixty days with the probate court and
the personal property shall be appraised by three persons appointed by
the court. Personal property liable to the payment of debts shall be
sold within three months; at least two weeks’ notice being required in
some newspaper oi general circulation in the county. Demands against
the estate are divided into the following classes : 1. Funeral expenses.
S. Expenses of the last sickness; wages of servants; demands for
medicines and medical attendance during the last sickness and expense of
administration. 3. Debts due the State. 4. Judgments rendered
against the deceased in his lifetime; but if such judgments are
liens upon real estate and the estate be insolvent, such judgments shall
be paid without reference to classification, except the first two which have
precedence. 5. All demands without regard to quality which shall be
legally exhibited against the estate in one year after granting letters of
administration. 6. All demands thus exhibited after the end of one
year and within two years. 7. Ail demands thus exhibited after
the expiration of two years and within three years. Demands not exhib
ited within three years are barred, except as to infants, persons of un
sound mind or persons imprisoned or absent from the United States, who
shall have three years after the removal of their disabilities. If
the personal property is insufficient to pay the debts, the executor or
administrator shall apply to the probate court for authority to sell the
real estate. Notice of this application must be given in such manner
and for such length of time as the court designates. The real estate must
be appraised and four weeks’ notice given in some newspaper of general
circulation, and can not sell for less than two-thirds of the appraised value,
and the executor or administrator can not become either directly or in
directly the purchaser at the sale. The court may order the real estate
sold at private sale, in which case it shall not be sold for less than threefourths of the appraised value. Foreign executors, and administra
tors with the will annexed, may sell real estate in this State in
accordance with the power contained in the will, unless administration
upon the estate has been granted in this State; provided that at the time
of such conveyance a copy of such will has been recorded in the office of
the probate court in the county in which the land is situated.
Affidavits. Affidavits may be made in or out of the State by the same
authority and with like authentication, as depositions.
A lien s. Law prohibiting aliens from inheriting or holding real estate,
repealed 1901. ( S e e F o r e i g n C o r p o r a t i o n s ) .
A p p eals. Appeals are taken from the Judgment oi a Justice ot the
peace to the district court by filing a bond of not less than $50 and not less
than double the amount of thé judgment appealed from. Civil cases are
taken from the district court to the supreme court or the court of appeals
by petition in error filed in the court to which the same is taken, upon
which a summons in error is issued. Where the amount involved does
not exceed $100, no appeal from the district court can be taken. The courts
of appeals have jurisdiction of appeals where the amount involved does not
exceed $2,000, exclusive of interest and costs. The supreme court has
exclusive jurisdiction in appeals when the amount exceeds that.
A rbitration s. Persons having controversies may submit them to the
arbitration of any person or persons mutually agreed upon and may make
such submission a rule of any court of record in the State. The parties
may enter into arbitration bonds conditioned for the faithful performance
of the award.
Arrest. A defendant may be arrested in a civil action upon filing an
affidavit with the clerk of the court that he has removed or begun to
remove his property out of the jurisdiction of the court with intent to de
fraud his creditors; or has begun to convert his property into cash, for the
purpose of placing it beyond the reach of his creditors ; or has property
which he fraudulently conceals; or fraudulently contracted the debt. The
affidavit must contain a statement of the facts claimed to justify the belief
in the existence of one or more of the above, and a bond must be furnished
that the plaintiff will pay damages in case the order of arrest is wrongfully
obtained.
A ssignm ents and In solven cy. Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount of
payments made. The assignment must be executed, acknowledged, and
recorded like conveyances of real property; and within thirty days there
after a verified inventory of the property and effects assigned must be
filed in the office of the clerk of the district court of the county
in which the assignor resides. A schedule of liabilities and with
the name of the creditors, the amount and character of their debts,
and their address so far as the same shall be known to the assignor,
verified by his affidavit, shall be filed on the date of the execution
of the assignment in the office of such clerk. The clerk, within
two days thereafter, shall mail to each creditor, whose demand exceeds
$10, a notice of such assignment, name of the assignor, date of
assignment, name of assignee, and names of all creditors and amounts
as stated in such schedule; and shall name a day, not less than
twenty nor more than thirty days from the date of assignment, on
which creditors shall convene at his office and choose an assignee. Un
til such choice is made the assignee named in the assignment remains in
and control. If a majority in interest of the creditors whose
S ssion
exceed $10 are present at the. meeting, an assignee may be chosen
by those representing the greater part in value ana number. If the
creditors fail to elect an assignee the judge of the district court appoints.
The assignee shall appoint a day within six months after the date of the
assignment, when he will proceed publicly to adjust and allow demands
against the estate ; and he shall give notice of such time and place by adver
tisement, published in some newspaper printed in the county, for three
months, the last insertion to be at least lour weeks before the appointed
day, and shall also give notice by letter addressed to the creditors whose
address is known. The assignee shall require evidence of the jus
tice of such demands, and appeals may be taken from the decision of the
assignee. No preferences are allowed.
A ttach m en t. At or after the commencement of an action an attach
ment may be had by plaintiff. The affidavit of the plaintiff, his agent, or
1222
BANKING AND COMMERCIAL LAWS—KANSAS.
attorney must be filed, stating the nature of the claim, that it is just, the
amount affiant believes ought to be recovered, and the existence of some one
or more of the following grounds: 1. That defendant is a foreign corpora
tion or a non-resident of the State (but in this case for no other claim than a
demand arising upon contract, judgment, or decree, unless the cause
of action arose wholly within the limits of the State). 2. That
the defendant absconded with the intention to defraud his creditors.
8. That the defendant has left the county of his residence to avoid
a service of summons. 4. That he so concealed himself that sum
mons can not be served upon him. 5. That he is about to remove
his property or a part thereof out of the jurisdiction of the court with
the intent to defraud his creditors. 6. That he is about to convert
his property or a part thereof into money for the purpose of placing it
beyond the reach of his creditors. 7. -He has property or rights
in action which he conceals. . 8. Has assigned, removed, or dis
posed of, or is about to dispose of his property, or a part thereof, with
the intent to defraud, hinder, or delay his creditors. 9. . Or fraud
ulently contracted or incurred the debt oh which the suit is brought.
10. Or that the suit is brought for damages from the commission of
some felony or misdemeanor. 11. Or that the debtor has failed
to pay for any article or thing delivered for which by contract he was
bound to pay upon delivery. On 5th, 6th, and 8th an action may be
brought and attachment had before the debt is due, but an order of the
judge is necessary before the attachment issues. Attachment orders
may issue to different counties and bond must be given to be approved
by the clerk, except where the defendants are non-residents or foreign
corporations. ( S e e G a r n i s h m e n t . ) ■
B an k s and B an k in g. There is no constitutional provision relating
to banks, except banks of issue. Other banks are organized under a gen
eral act. The charter, in addition to the requirements of the law relating to
corporations, shall contain the names and places of residence of the stock
holders and the amount of stock subscribed by each, and may contain
such other provisions, not inconsistent with law, as the stockholders may
deem proper, and shall be subscribed by at least five of the stockholders
of the prouosed bank who are residents of the State of Kansas. Board
of directors shall be not less than five, nor more than thirteen, a ma
jority of whom shall be residents of Kansas. The word “ State”
shall be included in the title. The full amount of the capital stock
must be subscribed before the charter is filed. The bank shall trans
act no business, except the election of officers, the taking and ap
proving of their official bonds, and the receipts of payments on ac
count of subscriptions to its capital stock, until it has been author
ized by the Bank Commissioner to commence business. The capital
stock must be paid, in full, in cash and shall not be less than $10,000. No
bank shall employ its money directly or indirectly in trade or commerce
by buying and selling goods, chattels, wares, and merchandise, and shall
not invest in the stock of any bank or corporation, nor make any loans on
the security of the shares of its own capital, nor be the purchaser or
holder of any such shares, except to prevent loss upon a debt previously
contracted in good faith. All such property coming into the possession
of the bank in the collection of debts shall not he considered assets after
the expiration of six months. Banks must have on hand in available
funds the following sums: In cities having less than 5,000 population, 20
per cent of their deposits; in cities having over 5,000 population, 25 per
cent, one-half of which may consist of balances due from good solvent banks
located at commercial centers and at such other points as the Bank
Commissioner may approve. The other half shall consist of actual cash.
Officers are personally liable for paying overdrafts. Not more than 15 per
cent of the capital stock and surplus can be loaned to any one person,
company, or corporation. Penalties are provided for false statements and
for receiving deposits when the bank is in a failing condition. Private
banks are subject to the provisions of the law. The Bank Commissioner,
•or deputy, must make examination of each bank at least once a year.
Pour reports per annum are required, and the commissioner may call for
others. Banks may purchase, hold, and convey real estate under certain
conditions to the extent of 50 per cent of their paid-up capital. Sharehold
ers are additionally liable for a sum equal to the par value of stock owned
and no more.
B ills o f E xch an ge. ( S e e N o t e s a n d B i l l s o f E x c h a n g e . )
B ills o f Lading. These are governed by the common law.
C hattel M ortgages. Every chattel mortgage or conveyance
■intended to operate as such, which shall not be accompanied by an
Immediate delivery and followed by an actual and continued change of
possession of the thing mortgaged, shall be absolutely void as against
the creditors of the mortgagor and subsequent purchasers and mortga
gees in good faith, unless the mortgage or a true copy thereof shall be
filed in the office of the register of deeds in the county where the
property is at the time, or the mortgagor shall at the time be a resident.
And every such mortgage shall be void as against the creditors of the mort
gagors or subsequent purchasers or mortgagees in good faith after the expira
tion of two years after same was filed, unless within thirty days next pre
ceding the expiration of said year, and each two years thereafter the mort
gagee, his agent, or attorney, shall make an affidavit exhibiting the
interest of the mortgagee in the property at that time, and the amount
yet due thereon. But such affidavit may be filed any time if no purchase
or lien in good faith has intervened, or the mortgagee after the year
and without affidavit may secure himself by taking possession. Such
affidavit shall be attached to and filed with the original mortgage. There
is no stipulated time in which mortgage is to be foreclosed. A mort
gagee of chattels, after condition broken, may sell on ten days’ notice
by posted hand-bills. Or, if the mortgage so provides, he may sell at
private sale; or if the mortgagee has taken possession (as authorized
to do at any time), the mortgagor or a subsequent mortgagee may
demand sale on notice as above.
C ollaterals. Governed by the common law on Bailments and
Pledge.
C onditional S ales. Conditional contracts, by which the ownership
remains in the party proposing to sell until the purchase price is paid,
are treated as chattel mortgages and must be filed in the office of the reg
ister of deeds in the same manner as such chattel mortgages but remain
in force without the renewal affidavit required in chattel mortgages.
C ontracts. All contracts which, by the common law, are joint only,
shall be construed to be joint and several. The use of private seals in
written contracts (except seals of corporations) is abolished.
Conveyance*. ( S e e N e e d s . )
Corporations. Corporations' are formed under a general statute,
but there are separate provisions regulating the different kinds of corpora
tions and to some extent the requirements of their organization. Prospec
tive corporations must apply to the charter board, composed of the at
torney general, the secretary of State, and the state bank commissioner,
for a charter. A $25 application fee must accompany an application.
When charter is granted a charter fee is paid one-tenth of one per cent
of its authorized capital stock upon the first $100,000; one-twentieth of
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
one per cent on the next $400,000 and for each million or major part there
of above $500,000, $200, and fees for filing, recording, etc. Any increase of
capital stock pays a fee of one-tenth of one per cent of the amount of such
increase and the same fees for filing, recording, etc., as before provided.
The application for a charter must state: 1. The name desired for such
corporation. 2. The place where its principal office or place of
business is to be located. 3. The length of time for which such
corporation is to exist. 4. The full nature and character of the
business in which it proposes to engage. 5. The names and addresses
of the proposed incorporators. 6. The proposed amount of capital
stock. The charter when issued must state: 1. The name of the corpo
ration. 2. The purposes for which it is formed. 3. The place or places
where its business is to be transacted. 4. The term for which it is to
exist. 5. The number of its directors or trustees and the names and resi
dences of those who are appointed for the first year. 6. The amount of
its capital stock, if any, and the number of shares into which it is divided.
7. The names and addresses of the stockholders and the number of shares
held by each. The charter‘may also provide that no person shall ever
hold or vote, as owner or otherwise, more than a certain minority of the
stock to be stated in the charter. The persons signing the charter
must acknowledge the execution of the same in the same manner as the
execution of a deed is acknowledged, and the same is then filed with the
secretary of State, and the organization of the corporation dates from
the date of filing. Every corporation must commence active operations
within one year after filing its charter with the secretary of State; failure
to do so works its dissolution. No corporation can commence business
until it file with the secretary of State an affidavit made by its president
and secretary setting forth that not less than 20per cent of its capital
stock has been paid in actual cash. The name adopted must indicate the
nature of the business. The corporate name must begin with the word
“ the” and end with the word “ corporation,” “ company,” “ associa
tion,” or “ society,” but this does not apply to banks, benevolent or re
ligious societies. There must be at least three directors, three of whom
must be residents of the State. Directors must be stockholders but
with a few exceptions no requirement is made as to the number of shares
they must own. The treasurer is required to have an office in the State.
The annual meeting of the siockholders for the election oi directors
must be held within the State, but the directors may hold meetings at
such places as they desire. The annual statement shall be made by the
president and secretary or the managing officer of each corporation for
profit doing business in Kansas, excepting banking, insurance, and rail
road corporations, on or before the first day of August of each year,
showing a complete detailed statement of the condition of such corpo
ration, on the thirtieth day of June. The statement shall set forth and
exhibit: 1. The authorized capital stock. 2. The paid-up capital stock.
3. The par value and the market value per share of said stock. 4. A
complete and detailed statement of the assets and liabilities of the cor
poration. 5. A full and complete list of the stockholders, with the postoffice addresses of each and the number of shares held and paid for by
each. 6. The names and post-office addresses of the officers, trustees or di
rectors, and manager elected for the ensuing year, together with a certificate
of the time and manner in which such election was held; failure to
file this report within ninety days from time fixed works a forfeiture of
the charter; also to file with the secretary of State as soon as any
transfer, sale, or change of ownership of any of the corporation stock
is made as shown upon the books or the company, giving the name and
shares of the new stockholder or stockholders, the number of shares
so transferred, and the par value and the amount paid on such stock.
The' capital stock can be increased to an amount not exceeding
three times the original amount fixed in the charter. Capital stock may
also be decreased. Preferred stock can be issued if all the holders of
common stock consent. Dividends can not be declared from any source
other than that which results from profits. The corporation can borrow
money not- to exceed the amount of its capital slock. Laws relating to
collection of double liability of stockholders (except banks and trust
companies). Repealed chap. 152, Laws 1903. Suits may be brought by and
against corporations the same as individuals. There, are laws regulating
banks, insurance companies, railroads, and other such corporations, and
also regulating more in detail the manner in which corporations organ
ized under the laws of other States may do business withm this State.
Gosts. ( S e e A c t i o n s . )
Courts. T e r m s a n d J u r i s d i c t i o n . District courts, holding two to
three terms a year in every county, have general original jurisdiction in
law and equity. Regular terms of the probate court are held in each
county on the first Monday in January, April, July, and October, and
special or adjourned terms may be held as business may require. Jus
tice’s jurisdiction in civil actions for the recovery of money, $300; to
recover specific personal property, $100. There are courts of appeals and
the supreme court, which latter is the court of last resort. ( S e e A p p e a l s . )
Creditors' B ills . Creditors may bring an action in the nature of a
creditors’ bill to marshal assets or set aside fraudulent conveyances as in
other States.
D ays jof G race. Abolished.
D eeds. No particular forms of conveyances are prescribed, but the
following are provided for: A conveyance in substance; A B conveys and
warrants to C D (here describe premises) for the sum of (here insert the
consideration), being dated, signed, and acknowledged by the grantor, is
declared by statute to be a conveyance in fee simple, with covenants from
the grantor for himself, his heirs and personal representatives, that he is
lawfully seized of the premises, has full right to convey the same, and
guarantees the quiet possession thereof, that the same are free froinall
incumbrances, and he will warrant and defend the same against all lawful
claims. A conveyance in substance: A B quit-claims to C D (here
describe premises) for the sum of (here insert the consideration), being
duly signed and acknowledged by the grantor, is a good and sufficient
conveyance in quit-claim. The same rule holds in regard to mortgages.
As between the parties conveyances are valid without being recorded.
The wife should join with her husband in the conveyance, and any
conveyance or mortgage of the homestead without her uniting in the same
is absolutely void. If the wife has never resided in the State her signa
ture is not necessary. Powers of attorney to convey land must be
acknowledged and recorded the same as deeds. Grantors need not attach
any seal or scroll to their signatures, and no witnesses are necessary unless
grantors are unable to write. Corporations convey by deed, sealed with the
corporate seal and signed by president, vice-president, presiding member,
or trustee. The acknowledgment must he before a judge or clerk of the
district court having a seal, a justice of the peace, notary public, county
clerk, register of deeds, mayor or clerk of an incorporated city. Every
notary public shall add to his official signature the date of the expiration
of his commission as notary public. In cases where the acknowledgment
is made out of the State it must be made before a court of record, a clerk,
or other officer having the seal thereof, a commissioner of deeds for Kansas,
justice of the peace or notary public, or before any consul of the United
States resident in any foreign country or port. When the acknowledg
BANKING AND COMMERCIAL LAWS—KANSAS.
m«nt is made before a justice of the peace, a clerk of a court of record
must certify to his official position. All instruments of writing for convey
ances or incumbrances of real estate in this State executed and acknowl
edged or approved in any other State, Territory, or country in conformity
with the laws of such State, Territory, or country, or in conformity with
the laws of this State, are as valid as if executed within this State. If
the deed Is executed by a corporation, the president or other person
executing the same should acknowledge it, and the officer should certify
that he was personally known to be the president of such corporation, and
that he acknowledged the execution of the instrument for and on behalf
of the corporation For the purposes therein expressed. Deeds and mort
gages must be recorded in the office of the register of deeds of the county
fn which the land is situated, or they will be void as to subsequent gran
tees in good faith without notice.
Deeds o f Trust in the nature of mortgages are not used to far as
sale by the trustee is concerned. ( S e e T r u s t s , e t c . )
D epositions. Depositions are taken upon notice to the opposite
party. The notice must be served so as to allow the adverse party suffi
cient time to attend, and one day for preparation, exclusive of Sunday
and the day of service. Courts are also authorized to appoint commis
sioners to take depositions. The deposition may be taken by stating
the facts in narrative form, or in reply to questions. The depositions
may be taken before any person authorized to take acknowledg
ments, such officer not to be attorney or relative of either party, nor
otherwise interested in the event of the suit. If there are adjournments,
they shall be noted by the officer, and legal reasons therefor given.
Objections should be entered to witnesses supposed to be interested, and
to questions supposed to be illegal. This entry is made on behalf of the
party raising the objection, simply by a short note made by the magis
trate or officer taking the depositions. Each witness must sign his own
deposition. The notice must be attached to the depositions and
inclosed with them. The depositions should be commenced on the day
named, and some portion of a deposition taken on each successive day,
Sundays and national holidays .not being regarded. When depositions
are taken under an agreement, the above instructions will be followed,
except whsre they are modified by the agreement. It should be attached
to the depositions, if sent, and referred to in the caption, as the notice
is, when taken under a notice. If taken by interrogatories and cross
interrogatories, under agreement or otherwise, each interrogatory and
cross-interrogatory must be put to each witness and answered so far as he
can answer it, and the answer written down. The deposition must show
that each interrogatory and cross-interrogatory was thus put and
answered. If the depositions are taken before the mayor, notary
public, or commissioner appointed as aforesaid, they must be certified
under his official seal. If before any of the other officers above named,
a certificate must be annexed, under the seal of the court of the
county, or the great seal of the State, that the officer by whom the
depositions were taken was, at the time of taking the same, such officer
as he represents himself to be in his certificate. This should be
attached to the magistrate’s certificate. This proof of official character
is omitted when waived by agreement of parties at the foot of notice.
The whole should be sealed up by the magistrate, the title of the suit
indorsed on the outside, the name and official character of the officer
taking the same, and “depositions on behalf” (the party taking the same)
and addressed to the “ clerk of the — a t .........Kansas,” or “ ......... .
Justice of the peace, a t ........ ,” as the case maybe. The officer before
whom the depositions are taken should indorse across the back of the
envelope, “ These depositions taken before, sealed up, and addressed
by me,” and sign his name officially thereto. ( S e e T e s t i m o n y . )
Descent and D istribution. The homestead is the absolute property
of the widow and children—one-hall in value to the widow, and the other
half to the children, when both survive. The 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, and
not necessary to pay debts goes to the wife in fee simple; except of land
sold by husband whose wife never resided in the State. : Remaining
estate goes to the surviving children, and living issue of prior deceased
children, children taking per stirpes, in equal shares, or, if none, to the
widow. For want of wife or child the whole estate goes to the parents.
The rules applicable to widow of deceased husband apply to husband
of deceased wife. Illegitimate children inherit from the mother, and also
from the father, if his recognition has been general and notorious, or in
writing. When a child would inherit from either parent, such parent will
inherit from the child. Personal property descends in the same way
as real estate. ( S e e E x e m p t i o n s . )
Divorce. Divorces are only granted by district court for the following
causes: Former marriage; one year’s abandonment; adultery; impotency;
pregnancy of wife by other than her husband; extreme cruelty; fraudulent
contract; habitual drunkenness; gross neglect of duty; conviction of
felony; and an action may be commenced to declare the marriage void
for want of capacity of understanding of the parties. The plaintiff
must have resided in the State one year, and sue in the county
of residence. In case of service by publication, a certified copy of
etition and notice, within three days after first publication, must
e mailed to the defendant, and such service must be proved by
affidavit, or the plaintiff must make affidavit that the residence of
the defendant is unknown. Each party may testify. The wife’s name
may be changed and the custody of children awarded to her. A
decree of alimony has the same effect, and may be enforced as any
other money judgment. Divorce is no bar to future marriage. Pro
ceedings to reverse decree of divorce must be commenced within six
months after its rendition, during which time it is bigamy for either
party to marry. Alimony may be sued for without divorce.
Dow er. Dower is abolished by law. ( S e e D e s c e n t a n d D i s t r i b u t i o n . )
Evidence. ( S e e T e s t i m o n y . )
E xecu tion s may be ordered as soon as judgment is obtained. It is the
duty of the justice, without any order, to issue execution within ten
days from rendition of judgment. Personal property levied on must
be appraised, and advertised for ten days, and sold at auction to the
highest bidder. There is no stay of execution in the, district court,
except where a case is taken to the supreme court on appeal, and then
only upon the giving of proper bonds. In justice's courts, by filing bond,
stays of execution are granted as follows: On any judgment for $20 and
under, thirty ¿ays; over $20 and under $50, sixty days; over $50 and not
exceeding $100, ninety days; over $100, one hundred and twenty days.
The Legislature of 1893 enacted a law providing for the redemption of
real estate sold on execution or order of sale, giving the debtor eighteen
months in which to redeem. It provides that where there are several
creditors, that after the sale the debtor shall have twelve months, and
if he fails to redeem, then creditors may redeem from each other for
three months. The debtor is entitled to possession of the property
during the period provided for redemption, and no receiver can be
appointed unless he commits waste. Any contract waiving a right of
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1223
redemption is invalid. This law does not apply to contracts in existence
at the time the law took effect.
E xem ptions. Homestead of 160 acres of farming land, or of one
acre within an incorporated town or city, with buildings thereon, unlim
ited in value. Every person residing in this State, and being the head
of a family, shall have exempt from seizure upon attachment or execu
tion, or other process: Family bible, school books, and family library;
family pictures and musical instruments used by the family; all wearing
apparel of the family, all beds, bedsteads and bedding, one cooking
stove and appendages, and all other cooking utensils, and all other
stoves and appendages necessary for the use of the debtor and his
family; one sewing machine, spinning wheel, and all other implements
of industry, and all other household furniture not herein enumerated,
not exceeding $500; two cows, ten hogs, one yoke of oxen and one horse
or mule, or in lieu of one yoke of oxen and one horse or mule, a span
of horses or mules, and twenty sheep and their wool; necessary food
for the support of such stock for one year; one wagon, two plows, drag,
and other farming utensils, not exceeding $300; grain, meat, vegetables,
groceries, etc., for the family for one year; the tools and implements of
any mechanic, miner, or other person, kept for the purpose of carrying
on his business, and in addition thereto stock-in-trade not exceeding
$400 in value; library, implements, -and office furniture of any pro
fessional man. Also personal earnings of the debtor earned during three
months preceding the garnishment or attachment, and three months’
pensiou money, where such earnings or pension money is necessary for
the support of the debtor’s family. A lien on the homestead may be
created hy husband and wife joining in the mortgage, also for material
used in improvements thereon. Residents, not the head oi a family, have
tools, implements, and stock-in-trade up to $400 exempt from execution.
F oreign Corporations. A foreign corporation doing business in ,
this State must file a certified copy of its charter with the secretary of State
and pay to the State treasurer tne same fees as a domestic corporation,
when it receives a certificate authorizing it to do business and is then sub
ject to substantially the same provisions, judicial control, restrictions, and
penalties as a domestic corporation. Annual statements must te filed in
February. If a foreign corporation fails to file with the secretary of State
the statement required by law within ninety days after the time provided
for, its right to do business in the State is thereby forfeited. There are
many statutory provisions relating to foreign insurance and building asso
ciations impossible of concise statement. A foreign corporation not
engaged in business in the State has the right to acquire property by mort
gage or otherwise and enforce liens by action but before it can enforce such
liens it must pay to the secretary of State a fee of $100 and file a written con
sent to be sued as is provided for corporations doing business in the State.
Fraud. ( S e e A t t a c h m e n t s , A r r e s t , a n d A s s i g n m e n t s . )
G arnishm ent. At or after the time of beginning an action to
recover damages founded upon contract, judgment or decree, or after the
Issuance of an execution and before it is returned, if the plaintiff cause to
be filed with the clerk an affidavit stating the amount of his claim over
and above all offsets, that he believes that some person, naming him,
indebted to, or has property in his possession or under his control belonging
to the defendant, and that such defendant has no property liable to
execution sufficient to satisfy his debt, and that the indebtedness or
property so held is not by law exempt from seizure or sale upon execu
tion, the clerk shall issue a garnishment summons. The plaintiff is
required to give a bond in a sum not exceeding double the amount of
the claim to the effect that he will pay all damages sustained by reason of
such garnishment if the order be wrongfully obtained. This bondis not
required where the defendant is a non-resident of the State or a foreign
corporation. The defendant may, by giving bond, have the garnishee
released. If the answer of the garnishee is not satisfactory, the plaintiff
may contest the same. In the justice court, garnishment may be issued
in the beginning of the action if the affidavit shows that the plaintiff is
liable to lose his claim unless the garnishment is issued.
Guaranty Companies. ( S e e T r u s t C o m p a n i e s . )
H olidays. January 1st, February 22d, May 30th, July 4th, first
Monday in September (Labor day), December 25th, and Thanksgiving
Day. If any of these fall on Sunday the Monday following is a holiday.
Husband and W ife. ( S e e M a r r i e d W o m e n . )
Injunctions. Injunctions may be granted by a district court or by
the judge thereof at the beginning of an action or afterwards, in his dis
cretion. A bond must be given to protect the defendent against any loss
in case the injunction is wrongfully obtained. In the absence of the judge
from the county the probate judge may grant temporary injunctions.
In solven cy. ( S e e A s s i g n m e n t s . )
Insurance Companies. The law provides for the organization of
fire insurance companies, life insurance companies, mutual live stock
insurance, mutual hail insurance, and fraternal beneficial association, and
all these companies are under the jurisdiction of the superintendent of
insurance to whom reports must be made and from whom authority must
be obtained. Foreign insurance companies must also obtain authority
from the insurance department before transacting business in the State,
and each agent of a foreign insurance company must have a license from
the superintendent. They are required to pay certain fees and costs of
In terest. Legal rate, 6 per cent, but 10 per cent may be agreed
upon. Excess of 10 per cent is forfeited, and in addition thereto there
shall be deducted from the amount due for principal, with lawful
interest, an amount equal to the interest contracted for in excess of 10
per cent. The legal interest originally contracted for continues until the
debt is paid, and no additional interest can be charged by way of penalty
for default. A purchaser of a negotiable note for value before maturity,
without notice, takes the note free of the usurious taint.
Judgm ents. Judgments of courts of record are liens on the real
estate of the debtor within the county from the first day of the term at
which the judgment was rendered; but judgments by confession and
judgments rendered at the same term during which the action was com
menced are liens only from the day on which the judgment was rendered.
Judgments lose their priority over subsequent judgments unless execu
tion is issued and levied within one year after judgment. A certified
copy of the judgment may be filed in the office of the clerk of the district
court of any other county and the judgment will then be a lien on real
estate in that county, but execution can only issue from the court in
which the judgment is rendered. The lien continues for five years and
may be revived within one year thereafter, but the issuance of an execu
tion prevents the judgment becoming dormant until the expiration of five
years from the date of issue. The judgments of justices become liens
upon real estate of the debtor by filing a transcript in the district court.
Jurisdiction . ( S e e C o u r t s . )
License. Agents of insurance companies are required to take out
licenses from the superintendent of insurance. Cities are authorized to
enact license ordinances and certain classes of business are required to
take out a license.
1224
BANKING AND COMMERCIAL LAWS—KENTUCKY.
Liens. Mechanics, material-men, and laborers are entitled to obtain
liens upon real estate for labor performed or material furnished in the
erection or repair of any building. Statements as to the amount of the
claim, for what it was rendered and by whom must be filed in the office of
the clerk of the court. Livery-stable keepers, forwarding merchants and
common carriers have liens. ( S e e J u d g m e n t s .)
L im itation s o f Suits. An action for the recovery of real property,
sold on execution or by executors, administrators, or guardians, brought
by the execution debtor, or the heirs, ward, or guardian, or any claiming
under them after the date of the judgment or order of sale, must be
within five years after the deed is recorded. To recover by holder of
tax deed within two years, and against holder of tax deed within five
years after recording of tax deed. Other actions for recovery of real
property, within fifteen years after cause of action accrues. On official
bonds and contracts in writing, five years. Contracts not in writing,
three years. Trespass, detinue, replevin, injuries not arising on con
tract, and relief on the ground of fraud, two years. Action for libel, slan
der, malicious transaction, or false imprisonment upon a suit for penalty
or forfeiture, except where the statute enclosing it describes a different
limitation, ‘ one year. Action for any other relief not before provided
for, five years. Any agreement for a different time for the commence
ment of actions from the time taentioned is void. The time during
which any defendant has been absent from the State, or has absconded
or concealed himself, is not to be computed as any part of the period of
limitation. If the cause of action arose in another State between non
residents of this State, and by the laws of the State where the action
arose the action is barred, it is barred in this State. Any case founded
on contract, part payment, or a written acknowledgment or promise,
renews the contract. The statute runs from the date of such renewal.
M arried ’W om en. The real and personal property owned by a
woman at the time of her marriage, and any property which comes to
her by descent, devise, or bequest, or gift of any person except her hus
band, remains her sole and separate property notwithstanding her mar
riage, and is not subject to the disposal of her husband or liable for
his debts. Married women may sell and convey their real and personal
property and enter into any contract with regard to the same in the
same manner and to the same extent as a married man may in relation
to his property. She may sue and be sued in the same manner as if
she were single. She may carry on any trade or business, 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 her own name.
M ines and M ining. The law provides for the appointment of a
mine inspector with authority to require mine owners to provide certain
facilities'for the health and safety of persons employed and compel proper
ventilation, regulate excavations, air courses, etc.
M ortgages. A mortgage of real estate, to be valid as against subse
quent bona fide purchasers, must be duly acknowledged and recorded in
the office of the register of deeds of the county where the land is situated.
Mortgages may be discharged on margin of record by mortgagee or
attorney or assignee in presence of register, or by satisfaction entered
on the instrument when copied on the margin by the register; or by an
independent release duly acknowledged and recorded. Wife must join
in all mortgages except those for purchase money. Mortgages are fore
closed by suit only. By an act of the Legislature which took effect May
18, 1893, real estate sold under foreclosure of mortgage is subject to
eighteen months redemption. If the mortgage foreclosed is for the pur
chase money six months only is allowed for redemption. This act does
not apply to mortgages executed prior to the date the act took effect.
When a mortgage is assigned the assignment should be acknowledged
and recorded. If the assignment was executed prior to March 15,1899, it
can be recorded whether acknowledged or not, and under the law must
be recorded within four months from that date or payment to the recent
owner of the mortgage will be a complete defense to an action thereon.
(For Forms, s e e D e e d s ; see E x e c u t i o n s . )
(For Mortgages on Chattels, see C h a t t e l M o r t g a g e s ; see E x e c u t i o n s . )
N otaries. Notaries are appointed by the Governor and serve for four
years. They give bond in the sum of $1,000 and are required to affix the
date of the expiration of their commission to all certificates.
N otes and B ills o f E xch an ge. Negotiable Instrument Act took
effect J une 8,1905.
P artn ersh ip s. Limited or special partnerships may be formed for any
legal purpose except banking or insurance. Such partnerships may con
sist of one or more persons who are general partners, and one or more who
contribute a specific amount of capital and shall be called special partners.
The special partners are not liable for the debts of the partnership beyond
the amount contributed by them respectively but the names of the special
partners must not be used in connection with the business. Such a partner
ship is formed by executing a certificate stating the name, the nature of
the business, the names of the general and special partners, and their place
of residence, and the amount of capital contributed by each special part
ner, and the period when the partnership is to commence and when it will
terminate. The certificate must be acknowledged and filed and recorded
in the office of the county clerk. .
P o w er o f A ttorney. ( S e e D e e d s . )
P rob ate Law. ( S e e A d m i n i s t r a t i o n . )
P ro test. ( S e e N o t e s a n d B i l l s . )
Records. ( S e e D e e d s . )
R edem ption. ( S e e M o r t g a g e s . )
R e p le v in . The plaintiff in an action to recover the possession of
specific personal property may claim the immediate delivery of the same
by filing affidavit and giving bond. Property replevined must be held by
the officer taking it twenty-four hours, during which time the party from
whom the property is taken may give bond to the plaintiff for not less
than double the amount of the value thereof conditioned for the return
of the same or its value in case it shall be adjudged the plaintiff is
entitled thereto, and thereupon may have the property returned to him.
Service. All service of process is made by the sheriff or by constables,
or by some one specially authorized in any particular case, and must be
issued in the name of the State with the seal of the officer issuing the same
affixed.
Suits. ( S e e A c t i o n s . )
T axes. Taxes upon personal property are based upon an assessment
made each year. Beal estate is assessed for taxation every two years;
one-half the annual levy for .taxes becomes due December 80, and if
not paid the whole amount becomes due and there is a penalty of five
per cent added. If the whole amount is paid there is a rebate of 5 per
cent on the last half. If not paid by June 20 of the succeeding year,
another 5 per cent penalty is' added. If the first half of the taxes on
personal property is not paid on ,or before December 20, a tax warrant
is issued to the sheriff for its collection in January. When the tax upon
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
real estate is delinquent, it is sold for taxes on the first Tuesday in
September following. After sold it bears interest at the rate of 15
per cent per annum and the same rate upon subsequent taxes paid and
indorsed on the tax certificate. The tax lien attaches to real estate on
November 1, in the year in which the tax is levied. After land is sold for
taxes, it may be redeemed within three years from date of sale. The
interest of a minor may be redeemed at any time within one year after he
attains his majority, and idiots and insane persons may redeem within five
years after the sale. If land is not redeemed within three years after the
sale, the county clerk may, upon the surrender of the certificate at any
time within one year thereafter, execute a tax deed conveying the premises.
T estim ony. No person is disqualified as a witness, in either civil
or criminal cases, by reason of his being a party to, or interested in
the event of the action, or on account of any religious belief, or by
reason of his conviction of s crime. No party will be allowed to testify
in his own behalf in respect to any transaction or communication had
personally by such party with s deceased person, when the adverse party
is the executor, administrator, heir at law, next of kin, surviving partner, or assignee of such deceased person, when they have acquired title to
the cause of action immediately from such deceased person; or of trans
actions when the other party thereto is deceased; or of transactions
with a deceased partner or joint contractor in the absence of his sur
viving partner or joint contractor; in all cases, however, when the de
ceased’s deposition has been taken, and is used on the trial, the adverse
party may testify. The following persons are incompetent to testify:
Persons of unsound mind; children under ten years of age, except in the
discretion of the court; husband and wife for or against each other,
except in cases of agency or joint interest, but in no case concerning com
munications made during marriage; nor an attorney, clergyman, or physi
cian, with reference to confidential communications made to them, unless
the party offers himself as a witness, in which case the communications
to such attorney, clergyman, or physician on the same subject are
admissible.
T ransfer o f Corporation Stocks. Stock is transferable only on
the books of the corporation in such manner as the by-laws may pre
scribe. The stockholder can only vote on stock which has been stand
ing in his name on the books of the company thirty days prior to the
election. Shares can not be transferred until all previous assessments
have been paid.
Trust Com panies. Trust companies may be organized with a capital
of not less than $100,000, and may receive moneys in trust and execute any
trust committed to them, either by any person or by order of any court,
and may execute or guarantee any bond required by law to be given in
any proceeding in court, and act as agent for the investment of money and
for ¿he purpose of issuing, registering^ transferring or countersigning certifi
cates of stock, bonds or other evidences of debt, act as guardian and
guarantee the fidelity and performance of duty of persons holding public
offices or private trusts, and certify and guarantee title to real estate and
sell all kinds of municipal or corporation bonds, and all kinds of nego
tiable paper, and receive deposits from banks and other trust companies
or public officers. They are required to keep on hand 25 per cent of
deposits subject to check and 10 per cent of time deposits, in the same
manner as State banks. Bach director must be a stockholder in the sum
of not less than $1,000. Trust companies are under the supervision of the
bank commissioner and subject to his examination.
Trusts and P ow ers. All trusts concerning lands must be created
in writing except such as arise by implication of law, and no trust,
whether implied or created, can defeat the title of a purchaser for a
valuable consideration without notice. All instruments creating trusts,
duly executed and acknowledged, may be recorded in the office of the
register of deeds of the county where the land is situated, and the record
of such trust shall be deemed actual notice to all persons claiming
under a conveyance made after the recording of the trust deed. A party
paying money to a trustee in good faith is not responsible for the
application of the money so paid. Nor can any fraudulent application
of the money by the trustee affect the title of such a purchaser. No trust
results to one paying the consideration for a conveyance to another
except in favor of creditors or in case of fraud. A dry or passive trust
passes the title directly to the beneficiary.
W arehouse R eceip ts. Warehouse receipts shall not be issued
unless the property therein described has been bona fide received into
store and shall be in store at the time of issuing the receipt. No person
shall sell, encumber, ship, transfer, or in any manner remove beyond his
immediate control any property for which a receipt has been given as
aforesaid, without the written assent of the person holding such receipt.
Receipts for grain issued by any warehouse are negotiable by indorse
ment in blank or by special endorsement in the same manner and to the
same extent as bills of exchange and promissory notes. Violation of
the provisions of the act is a felony.
W ills. Any person of full age and sound mind and memory, having
an interest in real or personal property, may give and devise the same to
any person by last will and testament lawfully executed, subject, never
theless, to the rights of creditors. Wills must be in writing, signed at
the e n d by the testator, or another in his presence and by his express
direction, and subscribed in his presence by two or more competent
witnesses who saw him subscribe or heard him acknowledge it.
Compliance With these requirements should appear in the witnessing
clause. A will executed, proved, and allowed in another State, according
to the laws of that State, relative to property in this State, may be
admitted to record in the probate court of the county in which such
property is situated, by producing an authenticated copy. Every will,
when admitted to probate, shall be filed in the office of the probate court,
and recorded.
SYNOPSIS OF THE LAWS OF KENTUCKY
R E L A T IN G TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Ernest Macpherson, Esq., Attorney at Law,
Louisville. (S e e C a r d i n A t t o r n e y s ' L i s t . )
A ck n o w led g m en ts. Deeds executed within the State must be
acknowledged before the clerk of a county court or a notary public.
Deeds other than those of married women may also be acknowledged
before and proven by two witnesses. Deeds executed without the State
and within the United States must be acknowledged before the clerk of a
court or his deputy, notary public, mayor of a city, secretary of State,
commissioner of deeds, or judge of a court. Deeds executed without the
BANKING AND COMMERCIAL LAWS—KENTUCKY.
United States must be acknowledged before a foreign minister, consnl
or secretary of legation of the United States, or the secretary o i foreign
affairs, or judge of a superior court of the nation where the deed shall
be executed, attested m either case by the officer’s seal of office. When
the acknowledgment is taken by an officer of this State he shall simply
certify that the deed was acknowledged before him, and when it was
¿°,ne- When the acknowledgment is taken by an officer residing out of
this State it must be certified in effect as follows •
State of .................... » __
County..................... j SCT*
I . .. .. . do certify that this instrument of writing from . . . . . . and . . . . .
his wife, was this day produced to me by the parties, and acknowledged
and delivered by . . . . . . a n d ........ his wife, parties thereto, to be their
act and deed, and the contents and effect of the instrument being
explained to the said.........by me, separately and apart from her husband, she thereupon declared that she did freely and voluntarily execute
and deliver the same to be her act and deed, and consented that the
same might be recorded.
Given under my hand and seal of office th is........ day o f .......... 19....
A ctions. Actions are commenced by filing in the clerk’s office of the
proper court a petition setting forth the cause of action and causing a
summons or a warning order to be issued thereon. Non-residents and
corporations, other than banks, created by laws of this State, are required
to give security for costs.
A dm inistration o f E sta te s. Personal estates of deceased persons
must be administered by the executors named in the will, or if these
refuse to qualify, or none are named, then by an administrator appointed
by the county court of the county in which the decedent resided at the
time of his death. Administrators and executors are required to give
bond for the faithful performance of their duties and with surety unless
otherwise directed by the will. They are required to file an inventory of
the estate within three months and to make settlement within two vears
from the date of qualification.
.■Affidavits. An affidavit may be read to verify a pleading, to prove
the service of a summons, notice, or other process, in an action; to obtain
a provisional remedy, an examination of a witness, a stay of proceedings
ora warnmg order; or, upon a motion. An affidavit may be made: 1.
In this State, before a judge of a court, or a justice of the peace, notary pub
lic, clerk of a court, or master commissioner. 2. Out of this State, before
a commissioner appointed by the governor of this State; or before any
other person empowered by a commission directed to him by consent
of the parties or by order of the court; or before a judge of a court, a
justice oi the peace, a mayor of a city, or notary public.
A ppeals. Appeals may be taken from a justice’s court to the quar
terly court when the value in controversy, exclusive of interest and costs,
exceeds $10; from the quarterly court to the circuit court when the value
In controversy, exclusive of interest and costs, exceeds $25; from the
, county court to the circuit court when the value in controversy, exclusive
of interest and costs, exceeds $50; from the circuit court to the court of
appeals when the value in controversy, exclusive of interest and costs
amounts to S200 or more. No appeal lies to the court of appeals from
any judgment of a.quarterly, city, police, fiscal or justice’s court, nor
from any judgment of thé county court except in actions for the division
of land and allotment of dower.
Arbitration. All controversies which might be the subject of a
8j
submitted to the decision of one or more arbitrators, .or two
and their umpire. The submission may be in writing or by entry of
record, and the agreement of submission shall be binding on the parties
thereto, if it states the matter to be submitted and who are to be the arbi«?ïs*j
arbitrator and the umpire, if one be chosen, shall take an
oath to decide the matter in controversy fairly and impartially accord
ing to law, justice, and the equity of the whole case. The award must be
m writing signed bv each arbitrator and the umpire, if any, and shall be
a final settlement of the controversy between the parties. A copy of the
both mU8t be given within a reasonable time and shall be binding upon
1225
ant s creditors. 7. Who has sold, conveyed, or otherwise disposed
of his property, or suffered or permitted it to be sold, with the fraudulent
intent to cheat, hmder, or delay his creditors. 8. Who is about to sell,
convey, or otherwise dispose of his property with such intent. (But an
attachment shall not be granted on the ground that the defendant is a
ioreign corporation or. a non-resident of this State, for any claim other
than a debt or demand arising upon a contract, express or implied, or a
judgment, or award.) Also in an action for the recovery of money due
-a Ca?^rac^’ judgment, or award, if the defendant have no property
i M 8- 8™ subject to execution, or not enough thereof to satisfy the
plaintiff’s demand, and the collection of the demand will be endangered
py delay m obtaining judgment or a return of no property found. Also
m an action to recover personal property which has been ordered to be
delivered to plaintiff, and which property or part thereof, has been disposed of, concealed, or removed, so that the order for its delivery can
not be executed by the sheriff. A f f i d a v i t a n d B o n d . Before an attach
ment can be obtained an affidavit must be filed, showing: 1. The na
ture of plaintiff’s claim. 2. That it is just. 3. The sum which affiant
believes the plaintiff ought to recover. 4. The ground of attachment
in a,n action upon a. return of “ nulla bona” no bond is required, but in
ail other cases bond must be given, with good surety, in double the
amount of the claim.
*
B anks. It is unlawful for any person or persons, either as individuals
or C0-Partners to engage in or conduct the business of private banking in
this commonwealth. Corporations may be organized to conduct both a
banking and trust company business. The boards of directors of banks
and trust companies doing business in this State have full power and
authority to fix the hours of opening and closing of said banks and trust
companies, and may provide «that on Saturday of each week such hour
of closing be as early as twelve (12) o’clock noon.
C hattel M ortgages and D eed s o f Trust. No deed of trust or
mortgage, conveying a legal dr equitable title to real or personal estate,
shall be valid against a purchaser for a valuable consideration, without
notice thereof or against creditors, until such,deed shall be acknowledged
or proved according to law, and lodged for record. It is a penal offense,
punishable by fine and imprisonment, for any person to sell any personal
property, on which there is a mortgage of record, with the intent to pre
vent the foreclosure of the mortgage and a sale of the property.
Contracts. A seal or scroll is in no case necessary to give effect to a
deed or other writing. All unsealed writings stand npon the same
footing with sealed, writings, having the same force and effect, and the
same actions may be founded upon them. The State or county seal or
the seal of a court, corporation, or notary to any writing has not, how
ever, been dispensed with.
Conveyances. { S e e A c k n o w l e d g m e n t s . )
Corporations may be organized under the general laws for the
transaction of any lawful business. Special regulations are prescribed
for foreign corporations doing business in the State, and for banking
building and loan, trust, insurance, and railroad companies. Shares of
stock are transferred on the books of the corporation in such manner as
its by-laws may direct, and every person becoming a stockholder by such
transfer succeeds to all the rights and liabilities of his assignor. Under a
former law it was held by the court of appeals that when the stock is
assignable by transfer on the books of the corporation, the assignment of
thç certificate with a written power to the assignee to transfer the stock
to himself on the books is snch a delivery as will affect those having
notice thereof, in the same manner as if transfer had been made on the
books. The cumulative system of voting is prescribed by the Constitution
and by the general law in relation to corporations. Stockholders are
liable to creditors for the full amount of the unpaid part of the stock
by them subscribed and for no more, except that stockholders in banks
trust companies, guaranty companies, investment companies and insur
ance companies are liable equally and ratably, and not one for the other
for all contracts and liabilities of the corporation to the extent of thè
amount of their stock at par value, in addition to the amount of such
stock; but persons holding stock, as fiduciaries, are not personally liable,
Arrest. An order for the arrest of the defendant shall be made by the
but the estates in their hands are in the same manner and to the same extent
court in which the action is brought or pending, at its commencement, or
as other stockholders, and no transfer of stock operates as a release, of any
atany time before judgment, if an affidavit of the plaintiff be filed in his
such liability, existing at the time of the transfer, provided the action to
office showing: 1. The nature of plaintiff’s claim. 2. That it is just.
enforce the liability shall be commenced within two years from the time
3. The sum or value, which the affiant believes the plaintiff ought to re of the transfer. All corporations are required to have a sign over their
cover. 4. That the affiant believes, either that the defendant is about to
principal place of business, and on all primed advertising matters (except
depart from this State and with intent to defraud his creditors has con •those of railroad, trust, and insurance companies, banks and building and
cealed, or moved from this State, his property, or so much thereof that the
loan associations) to cause to be painted or printed the word “ Incorpo
process of the court after judgment can not be executed; or that thedefendrated,” under penalty of fine of not less than $100 nor more than $500.
ant has money, or securities for money, or evidences of debt, in the
Ordinary business corporations may be organized if any number of
possession of himself, or of others for his use, and is about to depart from
persons, not less than three, sign and acknowledge articles of incorpora
tins State without leaving property therein sufficient to satisfy plaintiff’s
tion,
specifying: 1. The name of the corporation. 2. Its principal place
claim.
of business. 3. The nature of its business. 4. The amount of its capital
stock,
it any, and number of shares. 5. Names, places of residence, and
A ssignm ents and In so lv en cy . S u b j e c t t o N a t i o n a l B a n k r u p t
number of shares subscribed by each stockholder. 6. Date of com
M w . Every voluntary assignment made by a debtor to any person in trust
mencement
and of termination of corporate existence. 7. By what
or his creditors shall be for the benefit of all the creditors of the assignor,
officers business is to be conducted, and time and place of election.
mproportion to their respective claims, after the payment of the expenses
8.
Highest
amount of indebtedness or liability which corporation may
oi the trust; except that property conveyed by the deed of assignment, and
incur. 9. Whether private property of stockholders, not subject by the
npon which there is a valid lien, shall be applied first to the discharge of
provisions of the act to corporate debts, shall be liable therefor, and, if
me hen debt; and except that debts due by the assignor as guardian, com
so, to what extent. Said articles shall be acknowledged and recorded
mittee, trustee of an express trust created by deed or will, or as personal
like deeds in the county in which the principal place ,of business is situ
représentative, shall be paid in full before the general creditors receive
ated, and a copy thereof filed and recorded in the office of the secretary
anything. _ The intent of the assignee in making the deed of assignment
of State. After such filing and recording, and the payment to the State
snail not invalidate the deed, unless he be solvent, and it appear that the
of a license tax of one-tenth of 1 per cent on its capital stock, the cor
assignment w;as made to hinder or delay creditors. The deed vests in the
poration is deemed fully organized; but, before transacting any business
assignee the title to all the estate, real and personal, belonging to the as
other than with its own stockholders, at least 50 per cent of its stock
signor at the time of making the assignment, except that property exempt
must in good faith be subscribed, payable at such times as the board
aylaw shall not pass unless embraced in the deed. If the assignor, before
of directors may require. Corporation is forbidden to take a lien on or
maxing the deed, shall have made a preferential or fraudulent transfer,
purchase its own stock, except to secure a past indebtedness, or to
conveyance, or gift of any of his property, or fraudulent purchase of any
engage in any business other than that for which it was organized, or to
property m the name of another, the property so fraudulently transferred,
hold real estate in excess of what is necessary for carrying-on its business
conveyed, or purchased shall vest in the assignee, and it shall be his duty
for
a longer time than five years, under penalty of escheat. Directors
io mstitute such proceedings as may be necessary to recover same. If,
must not be less than three in number and each must own not less than
~P°n
he refuses to do so, any creditor may, and the property so
three shares of stòck. Elections must be by ballot and shall be held in
ecovered shall become a part of the estate, and be distributed as other
this State. The first election mnst be held at a meeting held before the
assets, if creditors representing one-half in number and two-thirds of
corporation commences business, and thereafter an election must be held
J^ount of debts against the estate shall so request in writing, the
annually on the day named in the by-laws, which must not be changed
onrt “ all remove the assignee and appoint another in his stead.
within sixty days of the election. Of any such change notice must be
nt^-’*ack ln en *'s* The plaintiff in an action to recover money may
given
to each stockholder twenty days before the election. Any corpora
tam an attachment against: 1. A defendant who is a foreign corporation
organized under this act may, by the consent in writing of a majority
fnn. 0r a,,noil"re^ident of the State. 2. Who has been absent herefrom
of
its
stockholders, unless otherwise provided in its charter, close its
„',r!;.?10nths. 3- Who has departed herefrom with intent to defraud his
business. Notice of such closing must be published at least once a week
vioo #s'
has left the county of his residence to avoid the serfor
four
consecutive weeks in some newspaper published in the county
im+v.0* a sommons. 5. Who so conceals himself that a summons can
and all debts must be paid in full before the officers receive anything!
ot oe served upon him. 6. Who is about to remove or has removed
^"Property or a material part thereof out of this State, not leaving
Courts. General civil and criminal jurisdiction is vested in Circuit
enough therein to satisfy the plaintiff’s claim, or the claims of said defendcourts which hold terms in each county as provided by statute.
78
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1226
BANKING AND COMMERCIAL LAWS—KENTUCKY.
D ays o f Orace. { S e e N o t e s a n d B i l l s o f E x c h a n g e . )
D epositions. Proof may be taken by depositions in all equitable
actions, and in ordinary or common law actions, where the witness resides
twenty miles or more from the place where the court is held, or is absent
from the State, and in many other cases enumerated in the statute where
the witness is privileged. Depositions are taken either on notice to the
opposite party or upon written interrogatories. The ordinary method of
taking is upon notice, but where the place of taking is more than one
day’s travel by ordinary methods and more than one hundred miles from
the place of sitting or the court, the party receiving notice may require
the deposition to be taken upon interrogatories by giving notice to that
effect to the adverse party or his attorney upon the same day, or the day
following the one upon which the first notice was served. Except in
divorce cases, depositions are required to be taken upon interrogatories,
if all the parties against whom they are to be read have been constructively
summoned and have not appeared, or be defendants, or under disability
other than coverture or infancy and coverture combined. In several
other cases enumerated in the civil code, the court may require depositions
to be taken upon interrogatories, and they may always be so taken by
consent of all parties. The officers authorized to take depositions in this
State, to be used in its courts, are: An examiner appointed by the_ judge
of the circuit court of his district, a judge or clerk of a court, a justice
of peace, or a notary public. Depositions may be taken out of this State
before a commissioner appointed by the governor of this State, or before
a judge of a court, a justice of the peace, mayor of a city, notary public, or
any other person empowered by a commission issuedto him by consent
of the parties or by order oi the court. If the deposition is taken upon,
interrogatories neither party is allowed to be present, either in person or
by agent or attorney. The officer’s certificate must state when and where
thedeposition was taken; that the witness was duly sworn before giving
it, and that it was written and subscribed by him in the officer’s presence,
or was written by the officer in the presence of the witness and read to and
usbscribed by the witness in the presence oi the officer. The certificate
must also state whether or not either of the parties, and, if either, which
of them, was present in person or by agent or attorney during the examina
tion of the witness. The officers may transmit the deposition in a sealed
envelope addressed to the clerk of the court, with an endorsement showing
the style of the action, and that the envelope contains depositions. This
may be sent by mail or by private person, in which case the person must
make oath that they have not been opened in transit.
D escen t and D istribution o f P rop erty. The real estate of a
person dying intestate shall descend in parcenary to his kindred; male and
female, in the following order, viz: (1) To his children and their descend
ants- if none, then (2) to his father and mother equally if both be liv
ing- ’if either be dead, the whole estate descends to the one living; if both
be dead, then (3) to his brothers and sisters and their descendants; if
none then (4) one moiety of the estate shall pass to the paternal and the
other to the maternal kindred, in the following order: (5) to the grand
father and grandmother, or whichever may he living-,' if both are dead,
then (6) to uncles and aunts and their descendants; if none, then (7) to
great grandfather and great grandmother, and so on in other cases without
end passing to the nearest lineal ancestors and their descendants. (8) If
there is no kindred to one of the parents, the whole shall go to the kin
dred of the other. If there is neither paternal nor maternal kindred, the
whole shall go to the husband or wife of the intestate, or if he or she be
dead then to his or her kindred as if he or she had survived the intestate
and died entitled to the estate. When any or all of a class first entitled to
take are dead, leaving descendants such descendants shall take per stirpes,
that is to say, by representation, the shares of their respective deceased
parents. Collaterals of the half blood shall inherit only half so much as
those of the whole blood. In making title by descent, it shall be no bar
to a party that any ancestor, through whom he derives his descent from
the intestate, is or has been an alien. Bastard can inherit in the descend
ing line only from the mother and her kindred, and can transmit inheri
tance in the ascending line only to the mother and her kindred.
D ivorce. A divorce may be granted for any of the following causes,
to both husband and wife. 1. Such impotence or malformation as pre
vents sexual intercourse. 2. Living apart without any cohabitation for
five consecutive years next before the application. Also, to the party not
in fault, for the following causes: 1. Abandonment by one party of the
other for one year. 2. Living in adultery with another man or woman.
3. Condemnation for felony in or out of this State. Concealment from
the other party of any loathsome diseases existing at the time of marriage,
or contracting such afterwards. 5. Force, duress, or fraud m obtaining
the marriage. 6. Uniting with any religious society whose creed and
rules require a renunciation of the marriage covenant, or forbid husband
and wife from cohabiting. Also to the wife when not in like fault, for the
following causes: 1. Confirmed habit of drunkenness on the part of the
husband of not less than one year’s duration, accompanied with a wasting
of his estate, and without any suitable provision for the maintenance of
his wife and children. 2. Habitually behaving toward her by the hus
band for not less than six months, in such cruel and inhuman manner as
to indicate a settled aversion to her, or to destroy permanently her peace
and happiness. 3. Such cruel beating or injury, or attempt at injury, of
the wife by the husband, as indicates an outrageous temper in him, or
probable danger to her life, or great bodily .injury, from her renaming
with him. Also to the husband for the following causes: 1. Where the
wife is pregnant by another man without the husband s knowledge at the
time of marriage. 2. Adultery by the wife, or such lewd and lascivious
behavior on her part as proves her to be unchaste, without actual proof oi
an act of adultery. 3. When not in like fault, for habitual drunkenness
on the part of the wife of not less than one year’s duration. A judgment
of divorce authorizes either party to marry again. No petition for divorce
shall he taken for confessed; the grounds alleged must be proved. Action
for divorce must be brought in the county where the wife usually resides,
if she has an actual residence in the State; if not, then in the county of the
husband’s residence.' Before a party can obtain a divorce, he or she must
have had an actual residence in this State for one year.
D ow er. (S e e H u s b a n d a n d W i f e . )
E xecu tion s. An execution may be issued upon a judgment at any
time until the collection of it is barred by the statute of limitations, but
no execution shall be issued on any judgment, unless ordered by the
court, until after the expiration of ten days from the rendition thereof.
An execution constitutes a lien on the property of the debtor from the
time it reaches the hands of the proper officer. Except as hereinafter
stated, any execution upon g judgment may be replevied for three months,
at any time before a sale under the same, by the defendant giving to the
officer an obligation (known as a replevin bond) payable to the plaintiff,
with good surety for the amount thereof, including interest and.costs. A
judgment to enforce a lien can not be replevied. No replevy is allowed
upon a judgment against any collecting officer, or attorney at law, or
agent, for a delinquency or default in executing or fulfilling the duties of
his office or place, or for failing to pay over money collected by mm in
such capacity, nor against a principal by his surety, nor upon a debt due
by obligation having the force of a judgment, nor upon a judgment for
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
specific property, or for the property or its value. Before, a sale of Jand
under an execution, the officer shall cause it to be appraised under oath
by two disinterested, intelligent housekeepers of the county; and if the
land so sold does not bring two-thirds of the valuation, the defendant and
his representatives shall have the right to redeem the same within a year
from the day of sale, by paying the purchaser or his representatives the
original purchase money and ten per centum per annum interest thereon.
E xem p tion s. The following property is exempt from execution,
attachment, distress or fee bill, namely: Two work beasts, or one work
beast and one yoke of oxen, two plows and gear, one wagon and set of
gear, or cart or dray; two axes, three hoes, one spade, one shovel, two
cows and calves, beds, bedding, and furniture sufficient for family use;
one loom and spinning wheel and pair of cards, all the spun yarn and
manufactured cloth manufactured by the family necessary for family use;
carpeting for all family rooms in use, one table, all books not to exceed
$50 in value, two saddles and their appendages, two bridles, six chairs,
or so many as shall not exceed $10 in value; one cradle, all the poultry
on hand, ten head of sheep, not to exceed $25 in value; all wearing appar
el, sufficient provisions, including breadstuff and animal food, to sustain
the family for one year; if not on hand,.other personal property, wages,
money or growing crop, not to exceed $40 in value for each member of the
family; provender suitable for live stock, if there be any such stock, not
to exceed $70 in value, and if such provender be not on hand, such other
property as shall not exceed such sum in value; all washing apparatus
not to exceed $50 in value, one sewing machine, and all family portraits
and pictures; one cooking stove and appendages, and other cooking uten
sils not to exceed in value $25. The tools of a .mechanic, not exceeding
$100 in value, are exempt. The libraries of ministers of the gospel; the
professional libraries of lawyers; the professional libraries and instru
ments of physicians and surgeons, not exceeding $50 in valué, are ex
empt. The wages not to exceed $50 of all persons who. work for wages
are exempt, except as to debts contracted for food, raiment, or houserent for the family. In addition to the personal property exempt from
execution, etc., there is a homestead exemption of so much land, in
cluding the dwelling house and appurtenances owned by the debtor as
shall not exceed in value $1,000. This exemption does not apply to debts
or liabilities which existed prior to the purchase of the land, or the erec
tion of the improvements thereon. Only those persons are entitled to
exemptions who have families resident in this commonwealth.
H olid ays. The 1st day of January, the 22d day of February, the 30th
day of May, the 4th day of July, the first Monday in September (Labor
Day), the 25th day of December of each year, and all days appointed
by the president of the United States, or by the governor of this State,
as days of fasting and thanksgiving are declared holidays, and shall be
treated as Sunday. If any of those days named as holidays shall occur
on Sunday, the next day thereafter shall be observed as a holiday.
Husband and W ife. By an act which took effect June 12,1894, the
following impdrtant changes were made in the common law of coverture
which theretofore prevailed in Kentucky. Marriage gives to the husband
during the life of the wife no interest in any of the wife’s property. She
has full power to contract and to bind herself and her property, except
that she can not bind herself to answer for the debt, default, misdoing of
another, except as to property set apart for that purpose by mortgage.
She may sell and dispose of personal property as if unmarried, but may
not sell or convey real estate unless her nusband unites in the contract, or
conveyance, unless empowered to do so by decree of court in case of
insanity, conviction of felony, or abandonment by thehusband. After the
death of either husband or wife the survivor shall have a life estate in onethird of all the realty of which the decedent was seized in fee simple
during the coverture unless such right shall have been forfeited or relin
quished. Such survivor has also one-half the personalty of the decedent
left after the payment of debts. Abandonment and living in adultery by
either party, or divorce works a forfeiture of these rights.
Interest. The lawful rate of interest is 6 per centum per annum, and
contracts for a greater rate are void as to the excess of interest.
Ju d gm en ts. A judgment does not constitute a lien on property
in this State. All judgments except for malicious prosecution, libel,
slander, or injury to the person, bear interest from their dates. { S e t
E x e c u t io n s a n d L im it a t io n s .)
L im itation s. The following are the periods within which actions
must be brought, the time commencing to run from the accrual of. the
cause of action. Fifteen years: Actions to recover real property; actions
upon judgments and written contracts, except negotiable instruments.
Seven years: Actions by senior patentees against junior patentees, who
have held possession for seven years. Five years: Actions upon verbal
contracts; upon a liability created by statute; actions for trespass to real
or personal property or for damages for withholding same; for the specific
recovery of personal property; actions upon negotiable instruments;
actions upon accounts between merchants, and actions for relief from
fraud or mistake. Two years: Actions upon merchants’ accounts lor
goods sold. Actions for injury to person or character, and for breach oi
promise of marriage.
N otes and B ills o f E xch an ge. An act relating to negotiable
instruments became a law June 13, 1904. Section 1 declares that an
instrument to be negotiable must conform to the following requirements:
(1) It must be in writing and signed by the maker or drawer. (2) Most
contain an unconditional promise or order to pay a sum certain in.
money. (3) Must be payable on demand, or at a fixed or determinable
future time. (4) Must be payable to the order of a specified person or to
bearer. (5) Where the instrument is addressed to a drawee, he must Do
named or otherwise indicated therein with reasonable certainty. Days
of grace are abolished. The signature of any party may be made by an
agent duly authorized in writing. Every negotiable instrument is pay
able at the time fixed therein; when the day of maturity falls upon
Sunday, or a holiday, the instrument is payable on the next succeeding
business day.
P ow ers o f A ttorn ey. Powers of attorney to convey real or persona*
property may be acknowledged, proved, and recorded in the proper omce
m the manner prescribed for recording conveyances. If the conveyance
mndo. under a power, is required by law to be recorded or lodged tor recoru
to ma.lt o the same valid against creditors and purchasers, then the power
must be lodged or recorded in like manner. Resident married women may
not convey real estate by attorney.
P ro te st. Where any negotiable instrument has been dishonored,
it may be protested for non acceptance or non-payment as the case ma
be; but protest is not required, except in the case of foreign bins oi
exchange. It is the safer practice to protest in all cases.
T axation . All real and personal estate within this State and all Ph
onal estate of persons residing in this State, and all corporations organ
ized under the laws of this State, whether the same be m or out oi me
State, including intangible property, which shall be considered and es
mated in fixing the value of corporate franchises, shall be subject to uw»
B A N K IN G
A N D
C O M M E R C IA L
tio n u n le s s e x e m p t f ro m ta x a tio n b y th e C o n s titu tio n a n d s h a ll b e a s
se sse d a t its f a ir c a s h v a lu e , e s tim a te d a t th e p ric e i t w o u ld b rin g a t a
fa ir v o lu n ta ry s a le : P ro v id e d , h o w e v e r, th a t ta n g ib le p e rs o n a l p ro p e rty
lo c a te d a n d h a v in g a t a x a b le s itu s w ith o u t t h e S t a t e o f p e r s o n s r e s id in g
in th is S ta te , a n d o f a ll c o r p o r a tio n s o r g a n iz e d u n d e r t h e la w s o f t h is
S ta te s h a ll n o t b e s u b je c t to ta x a tio n .
F o r p u rp o s e s o f ta x a tio n re a l
e s ta te in c lu d e s a ll la n d s w ith in th e S ta te a n d th e im p ro v e m e n ts th e r e o n ;
p e rso n a l e s ta te e v e ry o th e r s p e c ie s a n d c h a ra c te r o f p ro p e rty .
T h e fo l
lo w in g c la s s e s o f p r o p e r ty a r e e x e m p t f r o m t a x a t i o n : P u b lic p r o p e r ty ,
p la c e s o f w o rs h ip , c e m e te r ie s , p u r e ly c h a r ita b le in s titu tio n s , e d u c a tio n a l
in s titu tio n s n o t c o n d u c te d f o r g a in , p u b lic lib ra rie s a n d th e ir e n d o w
m e n ts , p a rs o n a g e s , a n d h o u s e h o ld g o o d s to th e v a lu e o f $
. A ssess
m e n t is m a d e o n S e p te m b e r
s t, o f e a c h y e a r.
T axes of b an k s and
tru s t c o m p a n ie s a re p a y a b le to th e S ta te T re a s u re r b e fo re J u ly
st of
e a c h y e a r, a n d c o u n ty , c ity , to w n a n d d is tr ic t ta x e s a re p a y a b le a t th e
tim e fix e d b y la w f o r p a y m e n t o f lik e ta x e s .
T a x e s o f in d iv id u a ls a re
d ue M a rc h
s t, a f te r w h ic h tim e th e y m a y b e c o lle c te d b y d is tr e s s o n
g o o d s a n d c h a tte ls .
A f te r J u l y s t, r e a l e s t a t e m a y b e s o ld , a n d a f te r
N o v e m b e r s t, a p e n a lty o f
p e r c e n tu m o n th e fa c e o f th e b ill is a d d e d .
R eal e s ta te s o ld m a y b e re d e e m e d a t d a y tim e w ith in tw o y e a rs a fte r
th e d a y o f s a le b y p a y in g t h e p u r c h a s e m o n e y a n d in te r e s t a t th e r a t e o f
p e r c e n tu m p e r a n n u m
a n d in a d d itio n a p e n a lty o f
p e r c e n tu m
o n t h e 't o t a l a m o u n t o f t h e p u r c h a s e p r i c e a n d t h e a m o u n t o f a l l c o s ts .
250
1
1
1
1
1
6
10
15
W ills .
A n y p e rs o n o f s o u n d m in d a n d o v e r tw e n ty -o n e y e a rs o f a g e
m ay m a k e a w ill.
W ills m u s t b e in w ritin g w ith th e n a m e o f th e te s ta to r
s u b s c rib e d th e r e to e ith e r b y h im s e lf o r b y s o m e o th e r p e rs o n in h is
p re se n c e a n d b y h is d ire c tio n .
I f n o t w h o lly w ritte n b y th e te s ta to r th e
s u b s c rip tio n m u s t b e m a d e o r t h e w ill a c k n o w le d g e d b y th e t e s ta to r in th e
p re se n c e o f tw o w itn e s s e s , w h o s h a ll s u b s c rib e th e ir n a m e s in th e
p re se n c e o f th e te s ta to r.
T h e w ill o f a p e rs o n d o m ic ile d o u t o f th is S ta te
is v a lid a s to p e r s o n a lty , i f e x e c u te d a c c o r d in g t o t h e la w o f th e d o m ic ile ;
b u t to b e v a lid a s to la n d s , i t m u s t b e e x e c u te d a s r e q u ir e d b y th e la w
o f th is S ta te .
T h e c o u n ty c o u r t h a s e x c lu s iv e o rig in a l ju ris d ic tio n o v e r
th e p r o b a te o f w ills .
L A W
S —
1227
L O U IS IA N A .
h is d e m a n d ; a n d th a t h e d o e s n o t ta k e th is o a th w ith in te n tio n o f v e x in g
d e b to r, b u t o n ly in o rd e r to s e c u re h is d e m a n d .
D e b to r m a y b e d is
c h a rg e d b y d is p ro v in g f a c ts ; b y g iv in g b o n d , b y m a k in g s u rre n d e r, b y
d e liv e rin g to s h e riff p r o p e r ty s u ffic ie n t to s a tis f y d e m a n d .
A rre s t o f th e
d e b to r o n ly s e c u re s h is p re s e n c e to a n s w e r th e s u it; h e c a n n o t b e h e ld
fo r th e p a y m e n t o f th e d e b t.
A s s i g n m e n t s a n d I n s o l v e n c y .! S ta te
b y N a tio n a l B a n k ru p tc y a c t.
in s o lv e n t la w s
A d e b to r a lle g in g th a t h e c a n n o t m e e t h is o b lig a tio n s , b u t
t h a t h e h a s a s s e ts s u ffic ie n t t o p a y h is d e b ts i n lu ll i f g iv e n tim e , m a y , o n
filin g a s c h e d u le o f h is a s s e ts a n d lia b ilitie s , o n h is e x p a r te a p p lic a tio n ,
o b ta in a s ta y o f p ro c e e d in g s a g a in s t h im , a n d c a ll a m e e tin g o f h is c re d ito rs
b e fo re a n o ta ry .
T h e v o te ox a m a jo r ity in n u m b e r a n d a m o u n t o f th e s e
m a y g iv e h im a n e x te n s io n o f tim e n o t to e x c e e d th r e e y e a rs .
C re d ito rs
o p p o s in g m a y r e q u ire s e c u rity .
I f a re s p ite is g ra n te d b y a m a jo rity o f
th e c r e d ito r s in n u m b e r a n d a m o u n t, th e d e b to r is a llo w e d to k e e p a n d
d is p o s e o f h i s p r o p e r ty a s h e p le a s e s , a n d t h e o n ly c o n s e q u e n c e o f h i s
f a ilu r e to p a y h is in s ta llm e n ts u p o n h i s d e b ts is t h a t in s o lv e n c y e n s u e s
a n d h e s u rre n d e rs w h a t is le ft, if a n y , to a s y n d ic .
A C re d ito r m a y
p ro te c t h im s e lf b y a w rit o f s e q u e s tra tio n o r a tta c h m e n t.
In case of
c e s s io n o f p ro p e rty to c re d ito rs , h o ld e rs o f m o rtg a g e s a re n o t p re v e n te d
fro m fo re c lo s in g a s i f n o c e s s io n h a d ta k e n p la c e .
[A c t
of
.]
15 1894
A tta c h m e n t.
W rits o f a tta c h m e n t is s u e o n a p p lic a tio n o f c re d ito r,
u n d e r o a th , w h e n th e d e b to r r e s id e s o u t o f th e S ta te ; w h e n h e c o n
c e a ls h im s e lf to a v o id b e in g c ite d ; w h e n h e h a s m o rtg a g e d , a s s ig n e d o r
d is p o s e d o f, o r is a b o u t to m o rtg a g e , a s s ig n , o r d is p o s e o f h is p r o p e rty ,
rig h ts , o r c re d its , o r so m e p a r t th e re o f, w ith in te n t to d e fra u d h is
c re d ito rs o r g iv e a n u n f a ir p re fe re n c e to s o m e o f t h e m ; a n d w h e n h e h a s
c o n v e rte d , o r is a b o u t to c o n v e rt, h is p r o p e r ty in to m o n e y o r e v id e n c e s
o f d e b t w ith in te n t to p la c e it b e y o n d th e re a c h o f h is c re d ito rs , o r,
if d e b t n o t d u e , is a b o u t to re m o v e h is p r o p e r ty o u t o f t h e
S ta te .
C re d ito r m u s t f u rn is h b o n d e q u a l to th e a m o u n t c la im e d to b e d u e ,
w ith a t le a s t o n e s o lv e n t s u re ty , re s id in g w ith in th e ju r is d ic tio n o f
th e c o u rt, c o n d itio n e d fo r p a y m e n t to a n y p a rty in ju re d b y is s u a n c e
o f w r it o f a ll d a m a g e s s u s ta in e d b y h im in c a s e i t is d e c id e d t h a t th e
a tta c h m e n t w a s w ro n g fu lly o b ta in e d .
(A c t N o . ,
.)
G a rn is h m e n t
m a y b e h a d a s a n a c c e s s o ry e ith e r to a w r it o f a tta c h m e n t o r
7 1888
SYNOPSIS OF THE LAWS OF LOUISIANA
R E L A T IN G
B A N K IN G
P re p a re d a n d
& S £ , A tto rn e y s
0See Card in Attorneys' List.)
(.SeeAcknowledgments.)
R e v is e d
L aw , N ew
A c c o u n ts .
U S A G E S .
b y M e s s rs . R ic h a r d s o n
ottl
at
O rle a n s .
A c k n o w l e d g m e n t s o f d e e d s e x e c u te d w ith in th e S ta te m a y b e
m a d e b e fo re a ju d g e , n o ta r y p u b lic , p a r is h re c o rd e r o r h is d e p u ty , in th e
p re s e n c e o f tw o w itn e s s e s . T h e s e w itn e s s e s m u s t b e m a le s o v e r s ix te e n
y e a rs o f a g e .
I n o th e r S ta te s , b e fo re a c o m m is s io n e r o f L o u is ia n a , o r
a n y . o ffic e r a u th o r i z e d t o t a k e d e p o s itio n s i n
th e
S ta te w h e re h e
r e s id e s , b u t t h e o ffic ia l c h a r a c te r o f s u c h o ffic e r m u s t b e p r o p e r ly
v e rifie d .
A
L o u is ia n a
c o m m is s io n e r
m ay
c e rtify
t o t h e o ffic ia l
p o s itio n o f a n y p u b lic o ffic e r i n t h e S t a t e f o r w h ic h h e i s a p p o i n t e d .
A n a c c o u n t o r c la im c a n b e p r o v e d b y th e e x p a r te a ffid a v it o f c r e d ito r
w h e re th e r e is n o c o n te s t.
N o s e a l o r s c r o ll o f p r iv a te in d iv id u a ls is
a u th o riz e d o r re q u ir e d b y th e la w s o f th is S ta te .
W h e n a m a rrie d
w o m an e x e c u te s a d e e d w ith h e r h u s b a n d , s h e m u s t b e e x a m in e d b y
th e o ffic e r s e p a r a te a n d a p a r t f r o m h e r h u s b a n d t o a s c e r t a i n i f s h e a c ts
u n d e r h is c o e rc io n .
A d e e d to b e a u th e n tic a n d to b e a d m is s ib le in a
c o u rt o f ju s tic e w ith o u t o th e r p ro o f o f s ig n a tu re , m u s t b e a c k n o w le d g e d
a n d s ig n e d b e fo re a n o ta ry o r c o m m is s io n e r o f d e e d s .
I n o th e r S ta te s
a n y o a th o r a c k n o w le d g m e n t m a d e b e fo re a n o ta r y p u b lic , d u ly
ap
p o in te d i n s u c h S t a t e s , w h e n c e r tif ie d u n d e r t h e h a n d a n d o ffic ia l s e a l o f
su c h n o ta ry , s h a ll h a v e th e s a m e fo rc e a n d e ffe c t w ith o u t f u r th e r p ro o f o f
th e s ig n a tu r e , s e a l a n d o ffic ia l c h a r a c te r o f s u c h n o ta r y , a s i f ta k e n o r m a d e
b y o r b e fo re a L o u is ia n a c o m m is s io n e r re s id in g in s u c h S ta te .
A ct
or
.
I n f o r e ig n c o u n tr ie s e v e ry d e e d , c o n v e y a n c e , m o r tg a g e , s a le ,
e t c . , m a d e o r t a k e n b e f o r e a n y a m b a s s a d o r , m i n i s t e r , c h a r g e d ’a f f a i r e s ,
s e c re ta ry o f le g a tio n , c o n s u l-g e n e ra l, c o n s u l, v ic e -c o n s u l, o r c o m m e r c ia l
a g e n t, a n d e v e r y a c k n o w le d g e m e n t, a t te s ta tio n , o r a u t h e n t i c a t i o n o f a n y
o r s a id in s t r u m e n t s , o a t h s , e tc ., m a d e b y a n y o f s a id o ffic e rs u n d e r t h e i r
o ffic ia l s e a l s a n d s i g n a t u r e s s h a l l h a v e t h e f u l l f o r c e a n d e f f e c t o f a n
a u th e n tic a c t e x e c u te d in th is S ta te .
N o w itn e s s e s n e c e s s a ry .
P a rty
a p p e a r in g b e f o r e a n y o f s a id o ffic e rs n e e d n o t b e a r e s id e n t o f t h e p la c e
w h e re s a id o ffic e r is lo c a te d .
N o ta r ia l c o p ie s o f o r ig in a l w h e n d e p o s ite d
i n t h i s S t a t e i n a n o t a r y ’s o f f ic e h a v e f u l l f o r c e a n d e f f e c t o f a u t h e n t i c
c o p ie s o f a c t s e x e c u t e d i n t h i s S t a t e .
[A c t
of
140
1896
A c tio n s .
164 1898.1
(See Suits and Courts.)
A d m i n i s t r a t i o n o f E s t a t e s b y e x e c u to rs , a d m in is tr a to r s , o r tu to r s
w h o a r e e x -o ffic io a d m i n i s t r a t o r s — a ls o b y d a tiv e e x e c u to r s — w h e r e
th e re i s n o h e ir p r e s e n t o r a g e n t o f h e ir , p u b l i c a d m in is tr a to r ta k e s
c h a rg e .
A n o n - r e s id e n t e x e c u to r o f a w ill m u s t i n a ll c a s e s g iv e b o n d :
a re s id e n t d o e s n o t u n le s s re q u ire d b y c re d ito rs .
A d m in is tra to rs a n d
e x e c u to rs o f o th e r S ta te s m u s t o p e n s u c c e s s io n o f d e c e a s e d in th e c o u r ts
o f th is S ta te , a n d b e re c o g n iz e d a s s u c h h e re b e fo re th e y c a n s u e o r b e
su e d o r tr a n s f e r p ro p e rty in th is S ta te .
A ffid a v its .
(See Acknowledgments.)
(See Successions).
A l i e n s . A f t e r o n e y e a r ’s r e s i d e n c e i n S t a t e m a y b e n a t u r a l i z e
is n o d i s t i n c t i o n b e t w e e n a l i e n s a n d r e s i d e n t s , e x c e p t t h a t t h
h a v e th e a d v a n ta g e o f s u in g in th e U n ite d S ta te s c o u rts .
T h e re
e x c lu d in g th e m f r o m b u y in g o r h o ld in g la n d s .
T h e y a re o n ly
fro m v o tin g .
d . T h e re
e fo rm e r
is n o la w
e x c lu d e d
2,000
A p p e a l s fro m ju d g m e n ts lo r a m o u n ts u n d e r $
a re ta k e n to th e
c o u rt o f a p p e a ls ; fo r a m o u n ts o v e r th a t s u m to th e s u p re m e c o u r t o f
th e S ta te .
A p p e a l s t o 't h e S t a t e s u p r e m e c o u r t f r o m e a c h p a r i s h o f S t a t e
a re r e tu r n a b le a t N e w O rle a n s .
[A c t
of
.] A p p e a l s a r e s u s p e n s i v e
or d e v o lu tiv e ; th e fo rm e r s u s p e n d s e x e c u tio n , th e la tte r d o e s n o t.
S us
p e n s iv e a p p e a ls m u s t b e ta k e n w ith in te n d a y s a f te r j u d g m e n t, d e v o lu
tiv e a p p e a ls m a y b e t a k e n w ith in o n e y e a r .
T h e su p re m e c o u rt a n d th e
c o u rts o f a p p e a l a r e a u th o r iz e d t o tr a n s f e r t o e a c h o t h e r t h e r e c o r d o f
an y c a s e w h e re th e a p p e a l is b r o u g h t u p th r o u g h m is ta k e in th e ju r is d ic
tio n , in s te a d o f d is m is s in g th e a p p e a l.
[A c t
of
.]
12 1894
56 1904
A rb itra tio n .
A g re e m e n ts to s u b m i t t o a r n itr a tio n r e c o g n iz e d b y la w .
A rb itra to rs m u s t b e sw o rn , o th e rw is e d e c is io n is n o t b m d in g .
S ta te
b o a rd o f a r b itr a tio n o f la b o r tro u b le s e s ta b lis h e d .
[A c t
of
.]
139 1894
A r r e s t f o r d e b t m a y b e m a d e o n a ffid a v it t h a t th e d e b t is re a lly d u e ,
a n d t h a t p e titio n e r v e rily b e lie v e s t h a t d e b to r i s a b o u t to re m o v e f r o m
th e S ta te p e r m a n e n tly , w ith o u t le a v in g in i t s u ffic ie n t p r o p e r ty to s a tis f y
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
fieri facias.
194
B a n k s .
T h e r e is a S ta te E x a m in e r o f S ta te b a n k s .
[A rtic le
, C on
s titu tio n
and A ct
of
, a n d A ct
of
.]
T h e S ta te b a n k s
m a k e q u a rte rly re p o rts o f th e ir c o n d itio n to s a id S ta te e x a m in e r o f S ta te
b anks.
B a n k in g c o rp o ra tio n s m u s t b e o rg a n iz e d u n d e r th e g e n e ra l fre e
b a n k in g la w s a d o p te d in
, a m e n d e d in
, in
, a n d in
.
Sav
in g s , d e p o s it, a n d t r u s t c o m p a n ie s p ro v id e d f o r b y A c t
of year
,
am ended by A ct
of
, w h ic h is n o w a m e n d e d b y A c t
of
. T he
n u m b e r o f p e r s o n s o r g a n iz in g m u s t e x c e e d fiv e . N o s p e c ia l a c ts o f in c o r p o
r a tio n c a n b e p a s s e d . T h e r e a r e n o la w s r e q u ir in g s a v in g s b a n k s to in v e s t
in a n y p a r tic u la r c la s s o f b o n d s .
B y A ct
of
, th e g e n e ra l b a n k in g
act of
a n d th e a m e n d a ry a c ts o f
and of
a re a m e n d e d a s fo l
lo w s :
. P e r io d o f tim e m u s t b e fix e d in a c t n o t to e x c e e d n in e ty - n in e
y e a rs.
. B a n k s c a n n o t h o ld r e a l e s ta te fo r lo n g e r tim e t h a n fiv e y e a r s ,
e x c e p t s u c h a s n e c e s s a ry fo r th e tra n s a c tio n o f th e ir b u s in e s s , o r e x c e p t
th a t h e ld a s a g e n t o r tru s te e .
. A ll m a n a g e r s a n d d ir e c to r s s h a ll b e
c itiz e n s o f L o u is ia n a .
. S a fe d e p o s its a n d tr u s t b a n k s w ith o u t p o w e r
to is s u e b a n k n o te s , m a y b e o rg a n iz e d u n d e r th is la w w ith a c a p ita l o f
$
o r m o re , o f w h ic h c a p ita l a t le a s t $
s h a ll b e p a id u p b e fo re
c o m m e n c in g b u s in e s s .
I n in c o r p o r a te d to w n s w ith le s s th a n
in .
h a b ita n ts m u s t h a v e c a s h c a p ita l o f n o t le s s th a n $
,
, w h ic h m u s t b e
p a id u p b e f o r e c a n c o m m e n c e b u s in e s s .
I t m a y b e m a d e a re c e iv e r,
tr u s te e , a s s ig n e e o r s y n d ic , a n d e x e c u te tr u s t s o f e v e ry d e s c r ip tio n . T h e
c a p ita l s to c k
a s p a id in s h a ll b e ta k e n a s s e c u rity .
M o n ey o r o th e r
v a lu a b le s d e p o s ite d b y m a rrie d w o m e n o r m in o rs m a y b e d ra w n o u t w ith
o u t th e a u th o r ity o f th e ir h u s b a n d s o r tu to rs .
S ta te b a n k s s h a ll a t a ll
tim e s h a v e o n h a n d in la w fu l m o n e y o f th e U n ite d S ta te s , a n d c a s h
d u e f r o m o th e r b a n k s , a n a m o u n t e q u a l to
p e r c e n t,
p e r c e n t o f w h ic h
s h a ll b e k e p t o n th e i r r e s p e c tiv e p re m is e s in c a s h .' [ A c t
of
.]
U nder A ct
of
, b a n k s o rg a n iz e d to d o a s a v in g s , sa fe d e p o s it
a n d t r u s t b a n k i n g b u s in e s s m u s t b e c o m p o s e d o f m o r e t h a n fiv e p e r s o n s ,
m a y b e o rg a n iz e d f o r n o t lo n g e r th a n n in e ty -n in e y e a rs , m a y n o t h o ld re a l
e s ta te f o r lo n g e r p e rio d th a n te n y e a rs , e x c e p t s u c h a s is h e ld a s a g e n t o r
tr u s te e , o r n e c e ssa ry ^ f o r tr a n s a c tio n o f th e ir b u s in e s s ; m a v a c c e p t a n d e x e
c u te tr n s ts o r a g e n c ie s o f a ll d e s c rip tio n s , m a v b e a p p o in te d b y a n y p e r
s o n o r b y c o u r t e x e c u to r , a d m in is tr a to r , s y n d ic , re c e iv e r, c u ra to r, tu to r ,
tr u s te e o r a s s ig n e e .
C a p ita l s to c k c o n s id e re d a s s e c u rity fo r fa ith fu l p e r
fo rm a n c e o f d u ty , th o u g h c o u r t m a y re q u ire o th e r s e c u rity , a n d m a y r e
q u ir e t h e S ta te E x a m in e r o f B a n k s t o in v e s tig a te th e a ffa irs a n d m a n a g e
per
m e n t o f th e b a n k ; m u s t a lw a y s m a in ta in a m m e y re s e rv e e q u a l to
c e n t o f th e a g g re g a te a m o u n t o f its d e m a n d d e p o s its a n d
per cent of
s u c h d e m a n d d e p o s its s h a ll a t a ll tim e s b e k e p t o n its p re m is e s in c a s h .
S u c h b a n k s c a n n o t is s u e n o te s a n d m u s t h a v e a c a p ita l n o t le ° s th a n
$
,
, w h ic h m u s t b e p a id u p in c a s h .
A ct
of
d e fin e s b a n k in g
a ss o c ia tio n s a n d s a v in g s b a n k s , a n d re g e la te s m e th o d s o f c o n d u c tin g
b u s in e s s , e tc .
[A m e n d e d b y a c t
of
.]
S ta te b a n k s m a y is s u e
in te r e s t- b e a r in g tim e c e rtific a te s to d e p o s ito rs .
£A ct
of
98
198 1898
179
1855
95 1892
TO
A N D 'C O M M E R C I A L
su p e rse d e d
Respite.
1902
1888
1892
1902
150
1888
189 1902
189 1902
1888
1892
1855
1
2
4
3
50,000
10,000
20,000
30000
25
45
8
116
1902
8
100000
1900
25
179 1902
140
1906
100 1904.1
B i l l s o f L a d i n g h a v e b e e n m a d e n e g o tia b le b y s ta tu te in th is S ta te .
T h e la w p ro v id e s t h a t th e h o ld e r o f a b ill o f la d in g g iv e n b y a n y fo rw a rd e r,
b o a t, v e s s e l, r a ilr o a d , tr a n s p o r ta tio n o r tr a n s f e r c o m p a n y is d e e m e d a n d
t a k e n to b e t h e o w n e r o f th e . g o o d s , w a r e s , m e r c h a n d is e , e tc ., s p e c ifie d
th e r e in , a n d m a y tr a n s f e r s a m e b y e n d o r s e m e n t s o f a r a s to g iv e v a lid ity
to a n y p le d g e , lie n , o r t r a n s f e r m a d e o r c r e a te d b y s u c h p e rs o n , b u t n o
p r o p e r ty s h a ll b e d e liv e re d e x c e p t o n s u r r e n d e r o r c a n c e lla tio n o f s a id
o rig in a l b ill o f la d in g w ith th e e n d o rs e m e n t o f s u c h d e liv e ry th e re o n .
H o w e v e r, in c a s e o f p a r tia l d e liv e ry , if th e b ill o f la d in g h a s th e w o rd s
“ n o t n e g o tia b le ” s ta m p e d o n its fa c e i t s h a ll b e e x e m p t fro m th e a b o v e
p ro v is io n s .
[S e e R e v . S ta tu te s , A rt.
.]
A ll b ills o f la d in g is s u e d a s
a b o v e s h a ll b e n e g o tia b le b y e n d o rs e m e n t in b la n k o r b y s p e c ia l e n d o rs e
m e n t in th e s a m e m a n n e r a n d to th e s a m e e x te n t a s b ills o f e x c h a n g e a n d
p ro m is s o ry n o te s n o w a re .
[S e e R e v . S ta tu te s , A rt.
B u t see
d
A n n ., p .
, L a lla n d e v s. c re d ito rs , w h e re th e c o u rt h e l d “ N o tw ith
s ta n d in g b y s ta tu te b ills o f la d in g m a y b e m a d e n e g o tia b le in fo rm th e y
d o n o t b e c o m e p o sse sse d o f a ll th e in c id e n ts o f n e g o tia b ility th a t a re
a ttrib u te s o f b ills a n d n o te s ;” a n d f u r th e r h e ld :— “ T h a t th o u g h a fa c to r
m a y s e ll a n d b in d h is p r in c ip a l h e c a n n o t p le d g e th e g o o d s a s s e c u rity fo r
h is o w n d e b t, e v e n th o u g h th e r e h a v e b e e n b ills o f la d in g is s u e d to h im
th e re o n .
T h e d o c trin e t h a t a f a c to r c a n n o t p le d g e is s u s ta in e d so s tric tly
t h a t i t is a d m itte d t h a t h e c a n n o t d o i t b y a n e n d o r s e m e n t a n d d e liv e ry
o f th e b ill o f la d in g a n y m o re t h a n b y d e liv e ry o f g o o d s th e m s e lv e s .”
2482
2485.1
705
42
B ills a n d N o te s a n d B ills o f E x c h a n g e .
A n a c t k n o w n a s th e
“ N e g o tia b le I n s tr u m e n t A c t” (N o .
of
) c h a n g e s in m a n y re s p e c ts
th e la w s f o r m e r ly a p p lic a b le t o b ills a n d n o te s .
I t is th e sa m e a s h a s
b e e n a d o p te d b y a n u m b e r o f S ta te s , a n d d e s irin g to a s s is t in e s ta b
lis h in g a u n if o r m la w o n th e s u b je c t, th is S ta te a d o p te d it.
U n d e r it,
d a y s o f g ra c e , w h ic h fo rm e rly w e re c u s to m a ry , a re a b o lis h e d .
In s tru
m e n ts a r e p a y a b le to b e a r e r i f m a d e p a y a b le to th e o r d e r o f a fic titio u s
o r n o n -e x is tin g p e rs o n , w h e n s u c h f a c t is k n o w n to th e o n e m a k in g its o
64 1904
1228
B A N K IN G
A N D
C O M M E R C IA L
p a y a b le ; w h e n n a m e o f p a y e e d o e s n o t p u rp o rt to b e n a m e o f a n y p e rs o n ;
o r w h e n th e o n ly o r la s t in d o rs e m e n t is in b la n k .
W h e n th e re is a d is
c r e p a n c y b e tw e e n t h e w o r d s a n d t h e fig u re s o f a n in s tr u m e n t, th e s u m
d e n o te d b y th e w o rd s is th e s u m p a y a b le .
T w o o r m o re p e rs o n s s ig n in g
in s tr u m e n t c o n ta in in g w o rd s , “ I p ro m is e to p a y ,” a re jo in tly a n d s e v e r
a lly lia b le th e re o n .
P re s e n tm e n t f o r p a y m e n t is u n n e c e s s a ry to b in d
p a rty p rim a rily lia b le , b u t is n e c e s s a ry to c h a rg e d ra w e r o r in d o rs e r.
N o tic e o f d is h o n o r m u s t b e g iv e n to d ra w e r a n d in d o rs e r w h e n in s tr u
m e n t h a s b e e n d is h o n o re d b y n o n -a c c e p ta n c e o r n o n p a y m e n t, o th e rw is e
th e y a re d is c h a rg e d .
A B ill o f E x c h a n g e d o e s n o t o p e ra te a n a s s ig n
m e n t o f fu n d s in h a n d s o f d ra w e e a v a ila b le fo r p a y m e n t th e re o f, a n d
d ra w e e is n o t lia b le ti l l h e a c c e p ts sa m e . H o ld e r m a y re q u ire a c c e p ta n c e
to b e w r itte n o n b ill, a n d if re fu s e d m a y tr e a t th e b ill a s d is h o n o re d .
A n a c c e p ta n c e w ritte n o n p a p e r o th e r th a n th e b ill, a n d a n u n c o n d i
tio n a l w r itte n p ro m is e to a c c e p t a b ill b e fo re it is d ra w n , b in d s th e
a c c e p to r o n ly in f a v o r o f a p u r c h a s e r fo r v a lu e o n f a ith th e re o f.
D raw ee
h a s tw e n ty -fo u r h o u r s to d e c id e w h e th e r h e w ill a c c e p t o r n o t. A d ra w e e
w h o d e s tro y s a b ill p r e s e n te d to h im f o r a c c e p ta n c e , o r w h o f a ils to r e tu r n
th e b ill w ith in tw e n ty -fo u r h o u rs , is d e e m e d to h a v e a c c e p te d th e s a m e .
W h e re a s ig n a tu re is so p la c e d u p o n a n e g o tia b le in s tr u m e n t th a t it
is n o t c le a r in w h a t c a p a c ity th e p e rs o n m a k in g s a m e in te n d e d to s ig n ,
h e is d e e m e d a n in d o rs e r.
F o re ig n b ills ro u s t b e p ro te s te d fo r n o n a c c e p ta n c e o r n o n p a y m e n t.
W h e re a b ill d o e s n o t a p p e a r o n its fa c e
t o b e a f o r e ig n b ill, p r o te s t th e r e o f i n c a s e o f d is h o n o r is u n n e c e s s a ry .
A c h e c k m u s t b e p ie s e n te d f o r p a y m e n t w ith in a re a s o n a b le tim e , o r
d ra w e r w ill b e d is c h a rg e d fro m a n y lo s s c a u s e d b y d e la y .
B a n k is n o t
lia b le to h o ld e r o f a c h e c k u n til i t a c c e p ts o r c e rtifie s s a m e .
W h e n th e
la s t d a y to d o a n a c t re q u ire d o r p e rm itte d to b e d o n e u n d e r th e a c t fa lls
o n a S u n d a y o r le g a l h o lid a y , i t m a y b e d o n e o n t h e n e x t s u c c e e d in g
s e c u la r o r b u s in e s s d a y .
W h e n d a y o f m a tu rity fa lls o n a S u n d a y o r
a h o lid a y , th e in s tr u m e n t is p a y a b le o n n e x t su c c e e d in g b u s in e s s d a y .
I n s tr u m e n ts fa llin g d u e o n S a tu rd a y a re to b e p re s e n te d f o r p a y m e n t
o n n e x t s u c c e e d in g b u s in e s s d a y , e x c e p t t h a t in s tru m e n ts p a y a b le o n
d e m a n d m a y , a t o p tio n o f h o ld e r, b e p re s e n te d f o r p a y m e n t b e fo re
o ’c l o c k n o o n o n S a t u r d a y w h e n t h a t e n t i r e d a y i s n o t a h o l i d a y .
T he
fo llo w in g a r e d a y s o f p u b lic r e s t a n d le g a l h o lid a y s a n d h a l f h o lid a y s .
[A c t
of
]
S undays, Ja n u a ry
s t, J a n u a ry
th , F e b ru a ry
d, G ood
F rid a y , J u n e d , J u ly
th . N o v e m b e r s t. T h a n k s g iv in g D a y , D e c e m b e r
th , a n d a ll g e n e ra l e le c tio n d a y s .
B e s id e s th e a b o v e , in p a r is h o f
O rle a n s , M a rd i G ra s a n d S e p te m b e r
s t a r e le g a l h o lid a y s .
I n c itie s o f
m o re th a n
.
, e v e ry S a tu rd a y , fro m
o ’c l o c k n o o n u n t i l
o ’c l o c k
m id n ig h t, sh aH be k n o w n a s a
h a lf h o lid a y .
I n c itie s o f m o re th a n
.
. w h en ev er Ja n u a ry
s t, J a n u a r y
th , F e b r u a r y
d , J u n e d , J u ly
th , N o v e m b e r
s t, a n d D e c e m b e r
th s h a ll f a ll o n a S u n d a y , th e s u c
c e e d in g d a y s h a ll b e a le g a l h o lid a y .
I f t h e d a y o r d a y s n e x t s u c c e e d in g
th e p r o te s t f o r n o n -a c c e p ta n c e o r n o n -p a y m e n t s h a ll b e d a y s o f p u b lic
r e s t o r le g a l h o lid a y s o r le g a l h a l f h o lid a y s , t h e n th e d a y n e x t fo llo w in g
s h a ll b e c o m p u te d a s th e fire t d a y a f te r th e p r o te s t.
“ S e rv ic e o f c ita tio n
s h a ll n o t b e w a iv e d , n o r ju d g m e n t c o n fe s s e d , b y a n y d o c u m e n t u n d e r
p riv a te s ig n a tu re e x e c u te d p rio r to th e m a tu r ity o f th e o b lig a tio n s u e d
, C o n s titu tio n
o n .”
[A rtic le
12
25
3 1904
3
1
4
1
1
15000
40000
4
1
1
91
25
8
12
8
22
1898.1
C h a t t e l M o r t g a g e s n o t le g a l in th is S ta te .
C o lla te ra ls
22
12
3
(See Mortgages.)
m u s t b e d e liv e r e d to b e e ffe c tu a l.
C o n tra c ts .
T h e la w o f c o n tra c ts is n o t d iffe re n t fro m th e la w s o f
o th e r S ta te s .
T h e y a re m a d e in v io la te b y th e c o n s titu tio n o f th e U n ite d
S ta te s a n d o f th e S ta te .
T h e y a re d iv id e d in to th r e e h e a d s : P e rs o n a l,
h e re d ita b le , a n d m ix e d , a n d m a y b e c re a te d e ith e r e x p re s s ly (w ritte n
o r o ra l) o r im p lie d ly .
C o n v e y a n c e s.
(See Deeds.)
Statutory Provisions.
C o rp o ra tio n s .
U n d e r th e g e n e ra l la w s o f th is
S ta te , a n y n u m b e r o f p e is o n s , e x c e e d in g s ix , m a y fo rm th e m s e lv e s
in to c o r p o r a tio n s f o r lite r a r y , s c ie n tific , r e lig io u s , a n d c h a r ita b le p u r
p o s e s ; f o r w o rk s o f p u b lic im p ro v e m e n t, a n d g e n e ra lly a ll w o rk s o f
p u b lic u tility a n d a d v a n ta g e ; a n d a n y n u m b e r o j p e rs o n s , n o t le s s th a n
th r e e , m a y fo rm th e m s e lv e s in to a c o rp o ra tio n f o r th e p u r p o s e o f c a rry in g
o n m e c h a n ic a l, m in in g , o r m a n u fa c tu rin g b u s in e s s , e x c e p t d is tillin g
o r m a n u f a c tu r in g in to x ic a tin g liq u o r s , w ith a C a p ita l n o t le s s th a n
$
o r m o re th a n $ ,
,
: a n d a n y n u m b e r o f p e r s o n s , n o t le s s
t h a n tw e n ty -fiv e , m a y f o r m th e m s e lv e s in t o a c o r p o r a tio n f o r a th le tic ,
m ilita r y , g u n p ra c tic e , o r s o c ia l p u rp o s e s .
A n y n u m b e r o f p e rso n s, n o t
l e s s t h a n t h r e e , m a y f o r m t h e m s e l v e s i n t o -a c o r p o r a t i o n o n c o m p l y i n g
w ith th e g e n e ra l c o rp o ra tio n la w s , fo r th e p u rp o s e o f c a rry in g o n a n y
la w f u l b u s in e s s o r e n te r p r is e n o t o th e rw is e s p e c ia lly p ro v id e d fo r,
e x c e p t s to c k -jo b b in g .
T h e le g is la tu re c a n n o t p a s s a s p e c ia l a c t c o n fe r
r in g c o rp o ra te p o w e rs .
(C o n s titu tio n
, A rt. X L V I I I .)
T h e g en eral
la w s u n d e r w h ic h c o rp o ra tio n s a re fo rm e d a re s u b je c t to a lte ra tio n ,
a m e n d m e n t, a n d r e p e a l.
C o rp o ra tio n c o m m ittin g a tre s p a s s o r d a m a g e
m a y b e s u e d a t p la c e w h e re i t o c c u rre d .
[A c t
of
A ll c o rp o ra
t i o n s h e r e a f te r o r g a n iz e d m u s t h a v e t h e i r c h a r te r s , e tc ., r e c o r d e d i n t h e
o ffic e o f t h e s e c r e t a r y o f s t a t e . [ A c t
of
(S e e A c t
of
fo r
f o r m a tio n o f c o r p o r a tio n s f o r w o r k s o f p u b lic im p r o v e m e n t.)
A ct
of
p r o v id e s f o r o r g a n iz a tio n , e tc ., o f lo c a l a n d f o r e ig n b u i l d i n g a n d
lo a n o r h o m e s te a d a s s o c ia tio n s .
T h re e o r m o re p e rso n s m a y fo rm a co r
p o r a tio n , to c a r r y o n a n y b u s in e s s s p e c ifie d in c h a r te r t h a t w o u ld b e
la w fu l f o r a n y in d iv id u a l to c a r r y o n .
M ay c a rry o n a n y n a m e d b u s i
n e s s o r d iffe re n t b ra n c h e s o f b u s in e s s , w h e th e r r e la te d o r n o t. M u s t h a v e
c a p ita l o f n o t le s s t h a n $
[A c t
of
.]
5,000
1000000
1898
22 1894.1
59 1898.1
154 1902
120
1902
3,000
78 1904
C o s ts .
T h e c o s ts o f c o u rt a re re g u la te d b y s ta tu te .
A ll c o u r t c o s ts
m u s t b e p a id in a d v a n c e a n d d e f e n d a n t m a y r e q u ir e re s id e n t s e c u r ity to
to
s h o u ld b e s e n t fo r
b e g iv e n f o r h is c o s ts b e f o r e p le a d in g ., F r o m
c o s ts f o r s u its in v o lv in g m o re th a n
a n d fro m
to
f o r s m a lle r
a m o u n ts .
$20 $25
$500
$15 $20
C o u rts .
Terms and Jurisdiction. T h e c o u r t s o f o r i g i n a l j u r i s d i c t i o n
a re :
In
p a ris h e s
o th e r th a n
O rle a n s :
1. J u s t i c e s ’ c o u r t s — e x c l u
s i v e j u r i s d i c t i o n u p t o $ 50, a n d , c o n c u r r e n t w i t h t h e d i s t r i c t c o u r t s ,
b e tw e e n
$50 a n d $ 100. 2. D i s t r i c t c o u r t s — c o n c u r r e n t w i t h j u s t i c e s ’
c o u r t s , b e t w e e n $50 a n d $ 100; e x c l u s i v e f o r a l l c i v i l m a t t e r s o v e r $ 100,
a n d i n a ll p r o b a te m a t t e r s a n d a p p e lla te j u r is d ic tio n i n a ll c iv il m a tte r s
B. I n O r l e a n s P a r i s h : 1. C i t y c o u r t s — e x c l u s i v e
in ju s tic e s ’ c o u rts .
ju ris d ic tio n
u p
t o $ 100. 2. C i v i l d i s t r i c t
c o u rts — e x c lu s iv e o v e r
$ 100.
J u s tic e s a n d c ity c o u r ts o p e n a t a ll tim e s .
In
p a ris h e s o th e r
t h a n O rle a n s , d i s t r i c t c o u r ts s h a ll h o ld c o n tin u o u s s e s s io n s d u r in g
te n m o n th s o f th e y e a r.
I n p a r is h o f O r le a n s , c iv il d is tr ic t c o u r t s its
fro m O c to b e r
t h to e n d o f J u n e , b u t s h a ll r e m a in o p e n o n a ll le g a l d a y s
d u r in g th e w h o le y e a r f o r g r a n tin g in te r lo c u to r y o r d e r s , is s u in g w r its ,
tr ia ls o f ru le s to q u a s h sa m e , try in g p ro c e e d in g s in s titu te d , o r o n a p p e a l
th e re in b y a la n d lo rd fo r th e p o s s e s s io n o f le a s e d p ro p e rty , p a rtitio n
p ro c e e d in g s , a n d f o r s u c h sp e c ia l p r o b a te a n d in s o lv e n c y b u s in e s s , a s th e
co u rt
m a y b y ru le d e te rm in e .
[A c t
of
.] O n a ll. a m o u n t s
u p to $ ,
, in c lu s iv e , a n a p p e a l m a y b e ta k e n to th e c o u r t o f a p p e a ls ,
fro m th e c ity a n d d is tr ic t c o u rts re s p e c tiv e ly , a n d o n
a ll a m o u n ts o v e r
$ ,
, to th e S ta te s u p re m e c o u rt.
A n a p p e a l lie s o n b o th la w a n d
fa c ts .
A p p e a ls f r o m th e ,c ity c o u r ts s h a ll b e tr ie d
15
enhance
2000
2 000
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
4
1896
de novo.
L A W
S — L O U IS IA N A .
C re d ito rs *
D a y s
B ills .
o f G ra c e .
N o t in u s e in th is S ta te .
'A b o l i s h e d .
(See Bills and Notes.)
D e e d s.
A ll a g re e m e n ts a ffe c tin g r e a l p r o p e r ty m u s t b e in w ritin g , an d
tr a n s f e r s a n d m o r tg a g e s , e tc ., m u s t b e r e c o r d e d i n t h e p la c e w h e r e th e
p ro p e rty is s itu a te d to a ffe c t th e r ig h ts o f th ir d p e rs o n s .
D eed s a re m ade
u n d e r p r iv a te s ig n a tu r e o r b y a c t p a s s e d b e f o r e a n o ta r y p u b lic in th e
p r e s e n c e o f tw o w itn e s s e s . B o th v e n d o r a n d v e n d e e s ig n , th o u g h s ig n a tu re
o f v e n d e e is n o t e s s e n tia l, a s a n y a c t o f a c c e p ta n c e w ill a n s w e r.
The
n o t a r y p r e s e r v e s t h e o r ig in a ls o f d e e d s p a s s e d b e f o r e h i m a n d c e rtifie d
c o p ie s g iv e n b y h im a r e re c e iv e d a s e v id e n c e in th e c o u rts .
E v e r y n o ta ria l
d e e d s h o u ld c o n ta in ( ) d a te o f a c t a n d p la c e w h e re it w a s p a sse d , ( )
n a m e s a n d s u r n a m e s a n d q u a litie s o f c o n tr a c tin g p a rtie s , ( ) d e s c rip tio n o f
t h e p r o p e r ty , e tc ., ( ) p r ic e o f t r a n s f e r a n d te r m s a n d c o n d itio n s .
1
2
3
4
D e p o s itio n s .
T o t a k e te s tim o n y o f w itn e s s r e s id in g o u t o f p a ris h
o r S ta te i t is n e c e s s a r y t o file m o tio n d u ly s w o r n t o s h o w in g n o n -re s i
d e n c e a n d m a te r ia lity o f e v id e n c e . W r itte n in te r r o g a to r ie s a r e p re p a re d
a n d s e r v e d o n o p p o s ite p a r t y , o r h i s c o u n s e l, w h o h a s t h r e e d a y s i n w h ic h
t o c r o s s . C o m m is s io n t h e n is s u e s , d ir e c te d t o s o m e p r o p e r o ffic e r, w ith
in te r r o g a to r ie s a n d c r o s s i n te r r o g a to r ie s a n n e x e d , w h o m u s t c a u s e w itn e s s
t o a p p e a r b e f o r e h im t o a n s w e r u n d e r o a th th e d ir e c t a n d th e c ro ss
in te rro g a to rie s .
H e s h o u ld r e d u c e a n s w e r t o w r i t i n g , r e a d s a m e to
w itn e s s a n d c a u s e w itn e s s to s ig n s a m e .
T h e o f f ic e r t h e n p r< p a r e s a
p r o c e s s v e r b a l o f th e w h o le , a tta c h e s i t to th e c o m m is s io n , in te r r o g a to r ie s ,
e tc ., a n d s h o u ld r e t u r n s a m e to t h e c o u r t i s s u i n g t h e c o m m is s io n w ith in
th e tim e f ix e d th e r e in f o r ta k in g t h e d e p o s itio n .
D e s c e n t a n d
D is trib u tio n
o f P r o p e r ty .
(See Married Women.)
(See Succession.)
D iv o rc e .
C a n n o t g e t a b s o lu te d iv o rc e
e x c e p t f o r a d u lte r y , o r in c a s e s w h e r e th e h u s b a n d o r w ife m a y h a v e b e e n
s e n te n c e d to a n in fa m o u s p u n is h m e n t.
D iv o r c e m a y b e o b ta in e d a fte r
o n e y e a r b y p a rty w h o o b ta in s a ju d g m e n t o i s e p a ra tio n fro m b e d an d
b o a r d , a n d a f t e r t w o y e a r s b y p a r t y a g a i n s t w h o m s u c h j u d g m e n t is
r e n d e r e d , p r o v id e d t h e r e h a s b e e n n o r e c o n c ilia tio n b e tw e e n th e p a rtie s .
(See Separation from Bed and Board.)
D o w e r.
(See Married Women.)
E m a n c ip a tio n .
1. M in o rs o f th e fu ll a g e o f fifte e n y e a rs m a y b e
e m a n c ip a te d b y th e ir f a th e r o r m o th e r b y a c t b e fo re a n o ta r y p u b lic an d
tw o w itn e s s e s .
T h is e m a n c ip a tio n o n ly c o n fe rs th e p o w e r o f a d m in is tra
tio n u p o n th e m in o r.
H e c a n n o t b in d h im s e lf le g a lly f o r a n y s u m e x
c e e d in g o n e y e a rs ’ re v e n u e .
. M in o rs a r e e m a n c ip a te d o f r ig h t b y m a r
ria g e .
H a v e s a m e r ig h ts a s m in o r s e m a n c ip a te d a t fifte e n y e a rs .
.
M in o rs o v e r th e a g e o f e ig h te e n y e a r s m a y b e re lie v e d fr o m th e tim e p re
s c rib e d b y la w fo r a tta in in g th e a g e o f m a jo rity .
T h is d o n e b y p e titio n
to c o u r t h a v in g ju r is d ic tio n a n d ju d g m e n t g iv e s h im fu ll p o w e r to d o an d
p e rfo rm a ll a c ts a s if h e w e re tw e n ty -o n e y e a rs .
2
3
E v id e n c e .
T r a n s f e r s o f im m o v a b le p r o p e r ty m u s t b e in w r itin g an d
c a n n o t b e p r o v e d b y p a r o l e v id e n c e . A l l a g r e e m e n ts r e la tiv e to m o v a b le
p ro p e rty a n d a ll c o n tra c ts f o r p a y m e n t o f m o n e y w h e n v a lu e d o e s n o t ex
ceed
w h ic h a r e n o t r e d u c e d to w r itin g m a y b e p r o v e d b y a n y o th e r
c o m p e te n t e v id e n c e ; s u c h c o n tr a c ts a b o v e
in v a lu e m u s t b e p ro v e d a t
le a s t b y o n e c r e d ib le w itn e s s a n d o th e r c o r r o b o r a tin g c irc u m s ta n c e s . ■
P a r o l e v id e n c e s h a ll n o t b e re c e iv e d :
“ T o p ro v e a n y a c k n o w le d g m e n t o r
p r o m is e to p a y a n y ju d g m e n t, s e n te n c e , o r d e c re e o f a n y c o u r t o f c o m p e t
e n t ju r is d ic tio n , e ith e r in o r o u t o f th is S ta te , f o r th e p u r p o s e o r in o rd e r
t o t a k e s u c h j u d g m e n t , s e n te n c e , o r d e c r e e o u t o f p r e s c r i p t i o n , o r t o re v iv e
. T o p ro v e any
th e s a m e a f te r p re s c r ip tio n h a s r u n o r b e e n c o m p le te d .
a c k n o w l e d g m e n t o r p r o m i s e o f a p a r t y , d e c e a s e d , t o p a y a n y d e b t o r lia b il
ity , i n o r d e r t o t a k e s u c h d e b t o r l i a b i l i t y o u t o f p r e s c r i p t i o n , o r t o re v iv e
th e s a m e a f te r p r e s c r ip tio n h a s r u n o r b e e n c o m p le te d .
. T o p ro v e any
p ro m is e to p a y th e d e b t o f a th ir d p e rs o n .
. T o p r o v e a n y a c k n o w le d g
m e n t o r p ro m is e to p a y a n y d e b t o r lia b ility e v id e n c e d b y w ritin g , w h e n
p re s c rip tio n h a s a lre a d y r u n .
B u t i n a ll t h e c a s e s m e n tio n e d i n t h is a rtic le
t h e a c k n o w l e d g m e n t o r p r o m i s e t o p a y s h a l l b e p r o v e d b y w r itte n , e v id e n c e
s ig n e d b y th e p a r ty , w h o is a lle g e d to h a v e m a d e th e a c k n o w le d g m e n t o f
p ro m is e , o r b y h is s p e c ia lly a u th o r iz e d a g e n t o r a tto r n e y in f a c t.”
[A rt.
R . C . C .]
E v i d e n c e o r c o n t e n t s o f l o s t o r d e s t r o y e d i n s t r u m e n t s in
w r i t i n g s o u g h t t o b e e n f o r c e d , m a y b e s h o w n , p r o v i d e d , t h e p a r t y firs t
p r o v e t h e lo s s , a n d p r o v id e d t h e ju d g e m a y re q u ii-e r e a s o n a b le s e c u r ity as
in d e m n ity a g a in s t th e a p p e a ra n c e o f th e in s tru m e n t.
A ll p e rso n s of
p r o p e r u n d e r s ta n d in g m a y g iv e e v id e n c e .
H u s b a n d a n d w if e c a n n o t te s
tif y f o r o r a g a in s t e a c h o th e r u n le s s th e y a r e jo in e d a s p la in tiffs o r d e fe n d
a n ts a n d h a v e s e p a ra te in te re s ts .
A tto r n e y s s h a ll n o t g iv e e v id e n c e of
a n y th in g c o n fid e d to th e m b y th e ir c lie n ts w ith o u t th e ir p e rm is s io n . A tto r
n e y s m a y b e w itn e s s e s i n t h e c a u s e s i n w h i c h t h e y a r e e n g a g e d a s c o u n s e l.
A n a ffid a v it o f th e c o rre c tn e s s o f a n o p e n a c c o u n t is re c e iv e d a s
p r o o f to c o n firm a ju d g m e n t b y d e f a u lt.
P a r o l e v id e n c e in c o m
p e te n t to p ro v e d e b t o r lia b ility o f a p a ity d e c e a s e d e x c e p t it c o n s is t o f
te s tim o n y o f a t le a s t o n e c re d ib le w itn e s s o f g o o d m o ra l c h a ra c te r b e
s id e s th e p la in tiff, o r e x c e p t i t b e to c o rro b o ra te w r itte n a c k n o w le d g m e n t
o r p r o m is e to p a y s ig n e d b y d e b to r , o r u n le s s a c tio n u p o n a s s e ite d
in d e b te d n e s s b e b r o u g h t w i t h i n tw e lv e m o n th s a f t e r d e c e a s e o f d e b to r.
$500
$500
2
3
4
2278
prima
fade
[A c t
207o f 1906. ]
fieri facias
E x e c u tio n .
P ro p e rty ta k e n u n d e r a w rit o f
m u st be
a d v e r tis e d a n d a p p r a is e d , a n d c a n n o t b e s o ld f o r le s s t h a n tw o J h ir d s of
th e - a p p r a is e d v a lu e , u n til i t h a s b e e n re -a d v e rtis e d .
A d v e rtis e m e n ts of
m o v a b le s th r e e tim e s in t e n d a y s — o i r e a l e s ta te o n c e a w e e k f o r th irty
d ay s.
I f tw o - th ir d s o f a p p r a is e d v a lu e is n o t b id , p r o p e r ty m u s t b e re
a d v e r t i s e d f o r f i f t e e n d a y s , a n d s o l d o n a c r e d i t f o r t w e l v e m o n t h s fo r
w h a te v e r i t w ill b rin g .
T h e r e is n o r e d e m p tio n o f p r o p e r t y s o ld u n d e r
e x e c u tio n o r m o r tg a g e . N o s t a y o f e x e c u tio n i s g iv e n e x c e p t o n a p p e a l,
a n d e x e c u tio n , m a y is s u e a t a n y tim e a f te r t h e d e la y f o r a p p e a lin g su sp e n s iv e ly h a s e x p ire d .
A ct
of
a u th o r iz e s s h e riffs a n d c o n s ta b le s
to p u t p u rc h a s e r o f s e iz e d p ro p e rty in p o s s e s s io n .
113 1906
E x e m p tio n s .
T o h e a d o f f a m ily , r e a l e s ta te if o w n e d a n d o c c u p ie d
a s a r e s id e n c e , to g e th e r w ith c e r ta in f u r n itu r e , s to c k , im p le m e n ts , p ro
v is io n s , e tc .; th e p ro p e rty n o t to e x c e e d $ ,
, a n d p r o v id e d th e p e r
s o n c la im in g th e b e n e fit o r th e h o m e s te a d e x e c u te a w r itte n d e c la ra tio n
o f h o m e s te a d (A c ts
, N o.
) , a n d n o e x e m p tio n i f w ife h a s
s e p a ra te p ro p e rty w o rth o v e r $ ,
. N o r e g is tr y r e q u ir e d in p a ris h e s
o th e r th a n O rle a n s .
(O p e ra tiv e J a n . ,
.) W i d o w o r m i n o r c h i l d r e n
s u rv iv in g is e n title d to $
o u t o f d e c e a s e d h u s b a n d ’s e s t a t e , i f i n
n e c e s s ito u s c irc u m s ta n c e s , b y p re fe re n c e o v e r e v e n
a firs t-m o rtg a g e
c re d ito r.
S h e r if f o r c o n s ta b le c a n n o t s e iz e lin e n a n d c lo th e s o f d e b to r
o r h is w ife , n o r h is b e d , n o r th o s e o f h is f a m ily , n o r h is a r m s a n d m ilita ry
a c c o u tr e m e n ts , n o r to o ls a n d in s tr u m e n ts a n d b o o k s , s e w in g m a c h in e s
n e c e s s a r y f o r t h e e x e r c is e o f h is o r h e r c a llin g , tr a d e , o r p ro fe s s io n , b y
w h ic h h e m a k e s a liv in g , t h e r ig h ts o f p e r s o n a l s e r v itu d e , o f u s e a n d h a b i
ta tio n , o f u s u f r u c t to th e e s ta te o f a m in o r c h ild , th e in c o m e o f d o ta l
p r o p e r t y , m o n e y d u e f o r s a l a r y o f a n o ffic e r, w a g e s o r r e c o m p e n s e f o r
p e r s o n a l s e r v ic e ( la b o r e r s ’ w a g e s ) c o o k in g s to v e , p la te s , e tc ., fa m ily
- p o r tr a its , m u s ic a l in s tr u m e n ts p la y e d o n b y fa m ily .
(A c ts
, N o.
.)
2000
1880
1,000
114
2000
1 1899
1876
79
F o r e ig n C o rp o ra tio n s .
C o r p o r a tio n s , c o m p a n ie s , o r a s s o c ia tio n s
o r g a n iz e d o r d o m ic ile d o u t o f th e S ta te , b u t d o in g b u s in e s s th e r e in , m a y
B A N K IN G
A N D
C O M M E R C IA L
b e lic e n s e d a n d ta x e d b y a m o d e d iffe re n t f r o m t h a t p ro v id e d f o r h o m e
c o r p o r a tio n s o r c o m p a n ie s ; p r o v id e d , s a id d if f e r e n t m o d e o f lic e n s e s h a ll
b e u n ifo rm , u p o n a g r a d u a te d s y s te m , a n d s a id d iffe re n t m o d e o f ta x a tio n
s h a ll h e e q u a l a n d u n if o r m a s t o a ll s u c h c o r p o r a tio n s , c o m p a n ie s , o r
a s s o c ia tio n s t h a t t r a n s a c t th e s a m e k in d o f b u s in e s s .
N o d o m e s tic o r f o r
e ig n c o r p o r a t i o n s s h a l l d o a n y b u s in e s s i n t h i s S t a t e w i t h o u t h a v i n g o n e
o r m o re k n o w n p la c e s o f b u s in e s s a n d a n a u th o r iz e d a g e n t o r a g e n ts in th e
S ta te u p o n w h o m p r o c e s s m a y b e s e r v e d .
[A rt.
, C o n s t, o f ’
.] A l l
c o rp o ra tio n s ( e x c e p t m e rc a n tile c o rp o ra tio n s ) d o m ic ile d o u t o f th e S ta te
a n d d o in g b u s in e s s i n th e S ta te in d e f a u lt o f filin g w ith th e s e c r e ta r y o f
s ta te a d e c la ra tio n o f th e p la c e o f its lo c a lity o r d o m ic ile to g e th e r w ith th e
n a m e o f its a g e n t in th e S ta te u p o n w h o m s e rv ic e o f p ro c e s s m a y b e m a d e ,
m ay b e s u e d u p o n a n y c a u se o f a c tio n in a n y p a ris h w h e re th e r ig h t o f
a c tio n a r is e s .
I t i s u n l a w f u l f o r a n y c o r p o r a tio n n o t d o m i c i l e d .in
L o u is ia n a to e n te r i n t o a n y c o m b in a tio n o r a g r e e m e n t w ith a n o th e r
c o rp o ra tio n t o p r e v e n t i t s le g a lly a u th o r iz e d r e p r e s e n ta tiv e s i n L o u is ia n a
fro m a c c e p tin g a h ig h e r c o m p e n s a tio n t h a n th e c o r p o r a tio n s p a r tie s to
t h e a fo re s a id ^ , a g r e e m e n t p a y .
[A c t
of
.]
F o r e i g n c o r p o r a t i o n s d o i n g b u s i n e s s i n t h i s S t a t e m u s t f ile i n o ffic e o f
s e c re ta ry o f s ta te a w r itte n d e c la r a tio n s e ttin g f o u r t h a n d c o n ta in in g
th e p la c e o r lo c a lity o f i t s d o m ic ile , th e p la c e s i n th e S ta te w h e r e i t is
d o in g b u s in e s s , a n d t h e n a m e o f i t s a g e n t o r o th e r o ffic e r i n t h i s S ta te
upon w h o m p ro c e ss m ay b e se rv e d .
[A c t
of
.]
264
98
182 1904
54 1904
F o re ig n J u d g m e n ts .
J u d g m e n ts re n d e re d in th e d iffe re n t c o u rts
o f th e U n ite d S ta te s s h a ll im p o rt fu ll p r o o f in th e c o u rts o f th is S ta te if
th e c o p ie s o f th e m w h ic h a r e o ffe re d b e c e r tif ie d b y th e c le r k o f th e c o u r t
in w h ic h th e y a r e r e n d e r e d , b e s e a le d w ith h is s e a l, i f th e r e b e o n e , a n d
c lo th e d w ith a c e r tif ic a te o f t h e ju d g e , c h ie f ju s tic e , o r m a g is tr a te w h o
p re s id e s i n t h e c o u r t, a s t h e c a s e m a y b e , d e c la r in g t h a t t h e a tte s ta tio n is
m ade in d u e fo rm .
J u d g m e n ts o f o th e r S ta te s a re a lw a y s o p e n to in v e s ti
g a tio n a s t o t h e j u r i s d i c t i o n o f t h e c o u r t t o r e n d e r th e m ; th e y m a y b e
c o n tra d ic te d a s to ju d ic ia l.r e c ita ls a s to s u b je c t m a tte r o r th e p e rs o n o r
in p r o c e e d in g s i n r e m a s to t h e t h in g .
W h e n ju d g m e n ts re n d e re d in
fo re ig n c o u n tr ie s , c o p ie s p r e s e n te d s h a ll b e c o n s id e r e d a u th e n tic a n d a d
m itte d in e v id e n c e i n th e c o u r ts o f th is S ta te i f c lo th e d w ith a ll th e fo rm s
re q u ire d t o p r o v e t h e i r a u th e n tic ity i n t h e p o u n tr ie s w h e r e t h e y a r e p r o
nounced.
F r a u d v itia te s a ll c o n tra c ts .
to a n n u l s a l e o n a c c o u n t o f f r a u d .
G a rn is h m e n t.
W ages
th is S ta te , s h a ll b e e x e m p t
w h e re c a n s e o f a c tio n a r o s e
g a rn is h e e s in s u c h c a s e s to
is a c t u a l l y s e r v e d w i t h p r o c
A c tio n b a r r e d
e a rn e d o u t
fro m a tta c h
o u t o f th is
p le a d s u c h
ess.
[A c t
by
o n e y e a r lim ita tio n
o f th is S ta te a n d p a y a b le o u t o f
m e n t o f g a rn is h m e n t in a ll c a se s
S ta te , a n a i t s h a ll b e th e d u ty o f
e x e m p tio n u n le s s th e d e fe n d a n t
of
.]
165 1904 (See Attachment.)
G u a ra n ty C o m p a n ie s .
A n y c o rp o ra tio n o rg a n iz e d u n d e r th e la w s
o f th is S ta te o r o th e r S ta te s fo r th e p u rp o s e o f tr a n s a c tin g th e b u s in e s s o f
g u a r a n t e e i n g th e " f i d e l i t y o f p e r s o n s h o l d i n g p l a c e s o f p u b l i c o r p r i v a t e
tru s t; g u a ra n te e in g th e p e rfo rm a n c e o f c o n tra c ts o th e r th a n in s u ra n c e
p o lic ie s , a n d e x e c u t i n g a n d g r a n t i n g b o n d s o r u n d e r t a k i n g s r e q u i r e d o r
p e rm itte d in a c tio n s o r p ro c e e d in g s b y la w a llo w e d a n d h a v in g a p a id - u p
c a sh c a p ita l o f n o t le s s t h a n $
,
, a n d w h ic h h a s c o m p lie d w i t h a n d is
q u a lifie d u n d e r t h e la w s o f t h i s S ta te a n d w h ic h h a s a s s e ts a llo w e d a s s u c h
u n d e r th e la w o f th is S ta te o r u n d e r th e la w s o f th e S ta te in w h ic h i t is
in c o rp o ra te d , in e x c e s s o f its c a p ita l s to c k , its o u ts ta n d in g d e b ts a n d a
p re m iu m re s e rv e o n a ll o u ts ta n d in g r is k s m a y b e a c c e p te d a s s o le a n d
s u ffic ie n t s u r e t y u p o n a n y b o n d , u n d e r t a k e n o r o b l i g a t i o n r e q u i r e d o r p e r
m itte d b y la w , e tc .
S u c h c o m p a n ie s s h a ll b e s u b je c t to a ll th e lia b ili
tie s a n d h a v e a l l t h e r i g h t s o f s u r e tie s u n d e r t h e l a w ; s u c h c o m p a n ie s s h a l l
n o t t r a n s a c t b u s i n e s s i n t h i s S t a t e u n t i l t h e y file w i t h t h e s e c r e t a r y o f
s ta te a w r itte n a p p lic a tio n to b e a u th o r iz e d to d o s o , a c o p y o f its c h a r te r
an d a s ta te m e n t s ig n e d a n d s w o rn to b y its p re s id e n t a n d s e c re ta ry s ta tin g
th e a m o u n t o f i t s p a id - u p c a s h c a p ita l, t h e a m o u n t o f p r e m iu m s o n e x is t
in g b o n d s u p o n w h ic h i t is s u r e ty a n d th e a m o u n t o f lia b ility f o r u n e a r n e d
p o rtio n th e r e o f , e s tim a te d a t
p e r c e n t o f a n n u a l p re m iu m s o n a ll o u t
s ta n d in g r is k s f o r o n e y e a r o r le s s , s p e c if y in g a ls o th e a m o u n t o f i ts o u t
s ta n d in g d e b ts , th e a m o u n t o f i ts in c o m e a n d e x p e n d itu r e s , e tc .
If
su c h c o m p a n y i s in c o r p o r a te d i n a n o th e r S ta te i t m u s t a ls o file a p o w e r o f
a tto rn e y a p p o in tin g s o m e re s id e n t o f th is S ta te u p o n w h o m s e rv ic e o f
p ro c e ss c a n b e m a d e .
C e rtific a te o f s e c re ta ry o f s ta te , a u th o r iz in g s u c h
c o m p a n y to b e c o m e s u r e ty o n b o n d s , e tc ., s h a ll b e c o n c lu s iv e p r o o f o f
its s o lv e n c y a n d c r e d i t .
[S e e A c t
of
f o r d e ta ile d in f o r m a tio n .]
A ll g u a r a n t y , f i d e l i t y , s u r e t y a n d b o n d c o m p a n i e s
d o in g b u s in e s s in
th is S ta te , m u s t d e p o s it w ith S t a t e T r e a s u r e r a g u a r a n te e f u n d f o r p r o
te c tio n o f c itiz e n s o f t h i s S ta te a n d in s u r in g a c o m p lia n c e w ith a ll c o n
tra c ts m a d e b y t h e m i n t h e S ta te .
[A c t
of
.]
250000
50
41
1894
71 1904
{See Bills and Notes.)
H u s b a n d a n d W ife .
(See Married Women.)
In h e rita n c e T a x .
{See Successions.)
H o lid a y s ..
1
2
3
In s o lv e n c y .
1
A b r o g a te d b y U . S . B a n k r u p tc y A c t.
105
1898
144
1900
In s u ra n c e C o m p a n ie s .
A ct
of
and A ct
of
as
am ended by A ct
o f
, p r o v id e g e n e ra lly f o r th e o r g a n iz a tio n o f in s u r
a n c e c o m p a n ie s in t h is S ta te o n th e s to c k p la n a n d u p o n th e m u tu a l p la n .
F ifte e n p e r s o n s a r e r e q u ir e d to o r g a n iz e su c h c o m p a n ie s , a n d th e y m u s t b e
re s id e n ts o f t h e U n ite d S ta te s a n d o f t h i s S ta te .
T h e a m o u n t o f c a p ita l
v a rie s p c c o r d m g t o t h e n a t u r e o f t h e b u s i n e s s .
T h e s e c re ta ry o f s ta te
p asses u p o n th e ir a p p lic a tio n s to d o b u s in e s s a n d is s u e s c e rtific a te s a u
th o riz in g t h e is s u a n c e o f p o lic ie s , e tc .
N o in s u ra n c e c o m p a n y o r g a n iz e d
u n d e r th e la w s o f o th e r S ta te s o r fo r e ig n c o u n trie s s h a ll is s u e p o lic ie s ,
a te ., u n t i l i t s h a l l h a v e f i r s t a p p o i n t e d i n w r i t i n g t h e s e c r e t a r y o f s t a t e a s
50 1902
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
1229
S — L O U IS IA N A .
its tr u e a n d la w f u l a tto r n e y , u p o n w h o m le g a l p ro c e s s m a y b e s e rv e d .
T h e s e c r e ta r y o f s ta te s h a ll, u p o n b e in g s e rv e d , fo r w a r d b y re g is te re d m a il
s a id c o p y o f p ro c e ss to th e s e c re ta ry o r m a n a g e r o i th e c o m p a n y .
N o
ju d g m e n t b y d e fa u lt c a n b e ta k e n a g a in s t th e c o m p a n y if it b e s h o w n
t h a t th e s e c re ta ry o f s ta te n e g le c te d to fo r w a r d th e c o p y
o f p ro cess
s e r v e d u p o n h im .
N o in s u ra n c e c o m p a n y o rg a n iz e d o u t o f th e S ta te
s h a ll d o b u s in e s s h e r e u n til:
.
I t s h a ll d e p o s it w ith th e s e c r e ta r y o f
s ta te a c o p y o f its c h a r te r , s ta te m e n t o i fin a n c ia l c o n d itio n , i n s u c h f o r m
a s h e m a y re q u ire , s ig n e d a n d s w o rn to b y its p re s id e n t a n d s e c re ta ry , o r
o t h e r p r o p e r o ffic e r.
. I t s h a ll s a tis f y th e s e c re ta ry o f s ta te o f its le g a l
o r g a n iz a tio n u n d e r th e la w s o f its S ta te to d o th e b u s in e s s it p ro p o s e s to
tr a n s a c t in th is S ta te ; t h a t if i t is a s to c k c o m p a n y i t h a s a f u lly p a id -u p
c a p ita l, e x c lu s iv e o f s to c k h o ld e rs o r o b lig a tio n s o f a n y d e s c rip tio n , a n
a m o u n t o f n o t le s s th a n is r e q u ir e d o f c o m p a n ie s o r g a n iz e d u n d e r th e
S ta te la w , a n d if a m u tu a l c o m p a n y , t h a t i t h a s a c a p ita l r e q u ir e d o f lik e
c o m p a n ie s o r g a n iz e d in th is S ta te .
. I t s h a ll a p p o in t s o m e re s id e n t in
th is S ta te a s its a g e n t.
. I t s h a ll o b ta in f r o m th e s e c re ta ry o f s ta te a
c e rtific a te a u th o r iz in g i t to m a k e c o n tr a c ts o f in s u r a n c e . I t s h a ll, b e s id e s ,
b e re q u ire d to m a k e a d e p o s it w ith th e tre a s u re r o f th is S ta te , o r w ith th e
f in a n c ia l o ffic e rs o f s o m e o t h e r S ta te s i n w h i c h s a i d c o m p a n y h a s b e e n
d u ly a u th o r iz e d to d o b u s in e s s , a s u m n o t le s s t h a n $
,
, w h ic h
d e p o s it m u s t b e in e x c lu s iv e t r u s t f o r th e b e n e fit a n d s e c u r ity o f a ll th e
p o lic y h o ld e rs a n d c re d ito rs in th e U n ite d S ta te s , w h ic h d e p o s it s h a ll b e
d e e m e d f o r a ll p u rp o s e s O f th e in s u ra n c e la w s o f th is S ta te th e c a p ita l o f
th e c o m p a n y .
I n s u r a n c e c o m p a n ie s m u s t file a n n u a l l y a c c o u n t s w i t h t h e
s e c re ta ry o f s ta te ; d iv id e n d s lim ite d to
p e r c e n t; b u s in e s s m u s t b e
w r itte n th r o u g h lic e n s e d re s id e n t a g e n ts .
F ir e in s u ra n c e c o m p a n ie s s h a ll
n o t e n te r in to c o m b in a tio n s to fix r a te s .
[A c t
of
.]
V a lu e o f
im m o v a b le p ro p e rty , p a r tia lly d a m a g e d o r d e s tro y e d , a s a s s e s s e d a t th e
tim e o f th e in s u ra n c e b y th e in s u re r, o r a s b y h im a llo w e d to b e a s s e s s e d ,
s h a ll b e c o n c lu s iv e ly ta k e n to b e th e tr u e v a lu e o f th e p r o p e r ty a t th e
tim e o f th e is s u a n c e o f th e p o lic y , a n d th e tr u e v a lu e o f t h e p r o p e r ty a t th e
tim e o f th e d a m a g e o r d e s tru c tio n .
[A c t
of
.]
A fire m a r s h a l
c re a te d b y A c t
of
, w h o s h a ll in v e s tig a te th e c a n s e , o rig in , a n d
c i r c u m s ta n c e s o f fire s .
T a x le v ie d o n in s u r a n c e c o m p a n ie s t o b e a r
e x p e n s e s . In s u ra n c e c o m p a n ie s m a y o rg a n iz e a F ir e P re v e n tio n B u re a u .
[A c t
of
.]
1
2
3
4
200000
10
110
135
122 1904
189 1904
I n te
upon.
e n tire
tw e lv e
p rin c ip
5
1900
1900
8
r e s t.
L e g a l r a te is
p e r c e n t, b u t
p e r c e n t m a y be ag re e d
If
h ig h e r th a n
p e r c e n t is c h a rg e d , su c h c h a rg e fo rfe its
in te re s t.
I f p a id , i t m a y b e s u e d fo r a n d re c o v e re d w ith in
m o n th s .
B u t a h ig h e r r a te m a y b e re c o v e re d if in c lu d e d in th e
a l o f th e n o te .
8
J u d g m e n t s r e c o r d e d i n t h e o ffic e o f t h e p a r i s h r e c o r d e r b e c o m e
m o rtg a g e s fro m d a te o f re c o rd u p o n a ll re a l e s ta te o f th e d e b to r, a n d
m a y b e th u s re c o rd e d in a n y p a ris h w h e re d e b to r o w n s re a l e s ta te .
T h e y a re v a lid fo r te n y e a rs, w h e n th e y m u s t be re n e w e d .
L a w s.
T h e la w s o f th i s S ta te a re f o u n d in th e L o u is ia n a C iv il C o d e ,
C o d e o f P ra c tic e , a n d R e v is e d S ta tu te s o f th e S ta te , a d o p te d in
, and
le g is la tiv e a c ts , a n d th e n e w c o n s titu tio n , a d o p te d M a y
, a s in te r
p r e te d b y th e d e c is io n s o f th e s u p re m e c o u r t o f th e S ta te , p u b lis h e d
in its L a w R e p o rts fro m th e
s t M a r t i n ’s R e p o r t s i n
, to th e
A n n u a l R e p o rts p u b lis h e d in
, in c lu s iv e .
12 1898
1811
1
1906
1870
115
L i c e n s e v a rie s a c c o rd in g to c h a r a c te r a n d a m o u n t o f b u s in e s s .
A ll
p e rs o n s , a s s o c ia tio n s o f p e rs o n s , a n d c o rp o ra tio n s p u r s u in g a n y tr a d e , p r o
fe s s io n , b u s in e s s , o r c a llin g a r e lia b le to s u c h ta x , e x c e p t c le rk s , la b o re rs ,
c le rg y m e n , s c h o o l te a c h e rs , th o s e e n g a g e d in m e c h a n ic a l, a g ric u ltu ra l,
h o rtic u ltu ra l, a n d m in in g p u rs u its , a n d m a n u fa c tu re rs o th e r th a n th o s e o f
d is tille d , a lc o h o lic , o r m a lt liq u o r s , to b a c c o , c ig a rs , o r c o tto n s e e d o il [S e e
A ct
of
am ended by A ct
of
and A ct
of
an d A ct
of
and A ct
of
, a u d A c ts
and
of
S, a m e n d i n g A c t
of
, f o r a m o u n ts o f lic e n s e s .]
.P e d d le r s a n d h a w k e rs s h a ll p a y lic e n s e s .
“ P e d d le rs a n d h a w k e r s ”
in c lu d e a n d a p p ly to a ll tr a n s ie n t m e rc h a n ts a n d itin e r a n t v e n d o rs
s e llin g to c o n s u m e rs b y s a m p le o r b y ta k in g o rd e rs f o r im m e d ia te o r
f u tu r e d e liv e ry
D o e s n o t a p p ly to p e rs o n s s e llin g a t w h o le s a le to
m e rc h a n ts , n o r to p e rs o n s s e llin g a n d d is tr ib u tin g f r e s h m e a t, e g g s, e tc .
(A c t
of
.)
A rt
o f C o n s t, o f
g iv e s G e n e ra l A s s e m b ly th e
r ig h t to le v y a lic e n s e ta x .
171 1898
1904
49 1904
1898
49 1904
133 1902
103 1900
62 214 190
229
47
171
1898
L i e n s o r P r i v i l e g e s a r e r ig h ts w h ic h th e la w g iv e s c e r ta in c r e d
ito r s in p r e fe re n c e to a ll o th e r s u p o n th e p r o p e rty o f th e ir d e b to rs a c c o rd
in g to th e n a tu r e o f th e i r c la im s . L ie n s a n d p riv ile g e s r e s t u p o n im m o v a b le
a n d m o v a b le p ro p e rty .
P r i v i l e g e s u p o n 'i m m o v a b l e s a f f e c t t h i r d p e r s o n s
o n ly w h e n r e c o r d e d a g a in s t th e p ro p e rtie s in th e p a ris h in w h ic h th e y a re
s itu a te d .
T h e n a tu r e a n d th e r a n k o f p riv ile g e d c re d ito rs a re f u lly s e t
f o r th in th e c iv il c o d e .
T h e d e b ts w h ic h a r e p riv ile g e d o n a ll m o v a b le s
in g e n e r a l a r e a s fo llo w s , a n d a r e p a id in t h e fo llo w in g o r d e r :
. F u n e ra l
c h arg es.
. L a w c h a rg e s.
. C h a rg e s o f w h a te v e r n a tu r e , o c c a s io n e d b y
th e la s t s ic k n e s s , c o n c u r r e n tly a m o n g th o s e to w h o m th e y a re d u e .
.
T h e w a g e s o f s e r v a n ts f o r t h e y e a r p a s t, a n d s o m u c h a s is d u e f o r th e
c u rre n t y e a r.
. S u p p lie s o f p r o v is io n s m a d e to th e d e b to r o r b is f a m ily
d u r i n g t h e l a s t s i x m o n t h s , b y r e ta il d e a le r s , s u c h a s b a k e r s ,, b u tc h e r s ,
g ro c e rs ; a n d d a r in g th e la s t y e a r, b y k e e p e rs o f b o a rd in g -h o u s e s a n d ta v
e rn s.
. T h e s a la rie s o f c le rk s , s e c re ta rie s , a n d o th e r p e rs o n s o f t h a t k in d .
.
D o ta l r ig h ts d u e to w iv e s b y th e ir h u s b a n d s .
[A rt.
C . C .]
D e b ts
w h ic h a r e p riv ile g e d o n c e r ta in m o v a b le s a r e a s fo llo w s , v iz .:
. T he
a p p o in tm e n ts o r s a la rie s o f th e o v e rs e e r f o r th e c u rre n t y e a r o n th e c ro p s
o f th e y e a r a n d th e p ro c e e d s th e r e o f ; d e b ts d u e f o r n e c e s s a ry s u p p lie s
fu rn is h e d to a n y f a rm o r p la n ta tio n , a n d d e b ts d u e fo r m o n e y a c tu a lly
a d v a n c e d a n d u s e d to th e p u rc h a s e o f n e c e s s a ry s u p p lie s a n d th e p a y m e n t
o f n e c e s s a ry e x p e n s e s f o r a n y f a r m o r p la n ta tio n , o n th e c ro p s o f th e y e a r
a n d th e p ro c e e d s th e re o f.
. T h e d e b t o f a w o rk m a n o r a rtis a n f o r th e
p r ic e o f h is la b o r, o n th e m o v a b le w h ic h h e h a s re p a ire d o r m a d e , i f th e
th in g c o n tin u e s s till in h is p o s s e s s io n .
. T h e r e n ts o f im m o v a b le s a n d
th e w a g e s o f la b o r e r s e m p lo y e d in w o r k in g th e sa m e , o n th e c ro p s o f th e
y e a r, a n d o n th e f u r n itu r e , w h ic h is f o u n d in th e h o u s e le t, o r o n th e f a r m ,
a n d o n e v e ry th in g w h ic h se rv e s to th e w o rk in g o f th e fa rm .
. T he debt
o n t h e p l e d g e w h i c h i s i n t h e c r e d i t o r ’s p o s s e s s i o n .
. T h a t o f a d e p o s ito r,
o n th e p r ic e o f th e s a le o f th e th in g b y h im d e p o s ite d .
. T he debt due
f o r m o n e y la id o u t in p r e s e r v in g th e th in g .
. T h e p ric e d u e o n m o v a b le
e ffe c ts , if th e y a r e y e t i n th e p o s s e s s io n o r t h e p u r c h a s e r .
. T h e th in g s
w h ic h h a v e b e e n f u r n is h e d b y a n in n k e e p e r, o n th e p r o p e r ty o f th e t r a v
e le r w h ic h h a s b e e n c a r r ie d to h is in n .
. - T h e c a r r i e r ’s c h a r g e s a n d t h e
a c c e s s o ry e x p e n se s o n th e th in g c a rrie d .
T h e r e a r e a ls o th e f o llo w n g
s p e c ia l p riv ile g e s , v i z . :
. L e s s o r ’s p r i v i l e g e .
. P riv ile g e o f th e c r e d ito r
o n th e tn i n g p le d g e d .
. P riv ile g e o f a d e p o s ito r o n th e p ric e o f a th in g
d e p o s ite d .
.
P riv ile g e f o r
e x p e n s e s in c u rre d in p re s e rv in g th in g .
.
P riv ile g e o f th e v e n d o r, o f m o v a b le e ffe c ts s o lo n g a s th e y a r e in th e
p o s s e s s io n o f th e v e n d e e ,
.
riv ile g e o f th e in n k e e p e r o n th e e ffe c ts o f
th e tra v e le r.
P riv ile g e s r e s tin g u p o n im m o v a b le s a r e a s fo llo w s , v iz .:
. T h e v e n d o r o n th e e s ta te b y h im s o ld , f o r th e p a y m e n t o f th e p r ic e o r
so m u c h o f it a s is u n p a id , w h e th e r it w a s so ld o n o r w ith o u t a c re d it,
. A rc h ite c ts , u n d e r ta k e r s , b ric k la y e rs , p a in te rs , m a s te r b u ild e r s , c o n
tra c to rs , -u b - c o n tr a c to r s , jo u rn e y m e n , la b o re rs , c a r tm e n , a n d o th e r w o r k
m e n e m p lo y e d in c o n s tr u c tin g , r e b u ild in g , o r r e p a irin g h o u s e s , b u ild in g s ,
o m a k in g o th e r w o rk s .
. T h o s e w h o h a v e s u p p lie d th e o w n e r o r o th e r
2
In ju n c tio n s .
In ju n c tio n s a g a in s t d e fe n d a n t lie : F irs t, fo r o b s tru c
tio n o f p u b lic p la c e ; S e c o n d , f o r o b s tr u c tio n o f b e d s o r b a n k s o f n a v ig a b le
riv e rs ; T h ir d , f o r b u ild in g o n r e a l e s ta te c la im e d b y p la in tif f ; F o u r t h , o f
o p p o s in g e x e c u tio n o f p u b lic w o r k ;' F i f t h , a g a in s t d is tu r b a n c e o f p la in tif f
i n p o s s e s s i o n ; S i x t h , a g a i n s t h u s b a n d ’s d i s p o s i n g o f
ro p e rty d u rin g
w i f e ’s s u i t f o r s e p a r a t i o n ; S e v e n t h , a g a i n s t s e i z u r e s b y s h e r i f f s o f p r o p e r t y
o f t h ir d p e r s o n s o r o th e r ille g a l a c ts ; E ig h th , to p r e v e n t th e d is p o s itio n o f
p ro p e rty c la im e d p e n d in g s u it ; N in th , i n c a s e o f e v ic tio n o f p u r c h a s e r ;
T e n th , a g a i n s t e x e c u t i o n o n g r o u n d o f p a y u e n t. a n d c o m p e n s a t i o n .
In
ju n c tio n s lie a g a in s t th ir d p e rs o n s n o t p a r tie s to th e s u it in th e fo llo w in g
cases, v iz .:
W h e n o n e c la im s p r e fe re n c e o f p a y m e n t o v e r s e iz in g
c re d ito r s h e r if f m a y b e e n jo in e d f r o m p a y in g o v e r p ro c e e d s .
.
W hen
one c la im s t h a t th e o n ly p ie c e o f p r o p e r ty o f d e b to r is s e iz e d a n d p r a y s
th a t th e p ro c e e d s b e b r o u g h t in to c o u r t f o r d is tr ib u tio n a m o n g c r e d ito r s
. A g a in s t d s p o s in g o f p ro p e rty
a c c o rd in g t o t h e i r r e s p e c tiv e p r iv ilè g e s .
, T o p re s e rv e p ro p e rty o r p re v e n t w a s te o r o th e r in ju
rio u s a c t i o n s .
. A g a in s t th e s e iz u re f o r p u r c h a s e p ric e w h ile title to ■
th in g s o ld i s i n d is p u te .
P a r ty a p p ly in g fo r in ju n c tio n m u s t d o so b y
p ro p er p e titio n , s ta tin g u n d e r o a th th e fa c ts w n ic h re n d e r it n e c e ssa ry ,
a n d m u s t a n n e x h i s b o n d i n f a v >r o f d e f e n d a n t f o r s u c h s u m a s c o u r t
in a y f ix .
I n ju n c tio n s m a y b e b o n d e d in a ll c a s e s w h e re n o irre p a ra b le
i n j u r y c o u l d b e d o n e p e r s o n s p r a y i n g f o r - i t , u p o n d e f e n d a n t ’s g i v i n g b o n d
in f a v o r o f p l a i n t i f f f o r a n a m o u n t t o b e f i x e d b y t h e c o u r t .
V io la tio n o f
in ju n c tio n s p u n is h e d b y im p r is o n m e n t.
pendente lite. 4
5
L A W
1
3
4
5
7
6
3191
1
2
3
5
7
8
9
5
4
3
1
2
6
1
2
3
4
6
1230
B A N K IN G
A N D
C O M M E R C IA L
p e r s o n e m p lo y e d b y th e o w n e r, h is a g e n t o r s u b -c o n tra c to r, w ith m a te r ia ls
o f a n y k i n d f o r t h e c o n s tr u c tio n o r r e p a ir o f a n e d ific e o r o th e r w o r k ,
w h e n S u ch m a te ria ls h a v e b e e n u s e d in th e e re c i io n o r re p a ir o f s u c h h o u se s
o r o th e r w o rk s.
[A rt.
.]
P riv ile g e s b e c o m e e x tin c t:
. B y th e e x
tin c tio n o f th e th in g s u b je c t to th e p riv ile g e .
. B y th e c re d ito r a c q u irin g
th e th in g s u b je c t to it.
. B y th e e x tin c tio n o f d e b t w h ic h g a v e b ir th to
it.
. B y p re s c rip tio n .
L ie n f o r la b o r o n lo g s g r a n te d b y a c t o f
.
P riv ile g e o n c ro p s to b e re c o rd e d (A c t o f
).
T h e v e n d o r o f a n a g ri
c u l t u r a l p r o d u c t o f t h e U n i t e d S t a t e s h a s a fiv e d a y s ’ p r i v i l e g e f o r u n p a i d
p u r c h a s e p r ic e in p r e f e r e n c e to a ll o th e r s .
A ll o th e r p riv ile g e s c a n b e
e n fo rc e d a g a in s t th e a rtic le u p o n w h ic h it b e a rs w h ile in th e h a n d s
o f th e p e rs o n w h o c re a te d th e m , b u t c a n n o t b e e n fo rc e d a g a in s t th ir d
h o ld e r s o f th e p ro p e rty .
3252
3
4
1
2
1890
1890
L im ita tio n s to S u its .
P r e s c r ip tio n — A c c o u n ts s ta te d a n d a c k n o w l
e d g e d in w r itin g a re p r e s c rib e d o n ly b y te n y e a rs . [A c t o f
.] P e r s o n a l
a c tio n s o n e y e a r:
A c tio n fo r to r ts o f a ll k in d s ; fo r in ju r y to o r n o n
d e liv e ry o f m e rc h a n d is e s h ip p e d o n v e s s e ls ; fo r fe e s o f ju s tic e , n o ta ry ,
o r c o n s ta b le * f o r in n k e e p e r s ’ a c c o u n ts ; f o r a c c o u n ts o f r e ta ile r s o f liq u o r s ;
f o r w a g e s o f la b o re rs o r s a ilo rs ; fo r f r e ig h t; a n d fo r tu itio n b y m o n th .
T h re e y e a rs : A c tio n fo r a rre a ra g e s o f r e n t c h a rg e s , o r h ir e o f m o v a b le s
o r im m o v a b le s ó r m o n e y le n t; f o r s a la rie s o f o v e rs e e rs , c le rk s , o r tu itio n
b y q u a r te r o r y e a r ; f o r fe e s o f p h y s ic ia n s , a p o th e c a r ie s , a tto r n e y s , s h e riffs ,
c le rk s , a n d re c o rd e rs ; o n o p e n a c c o u n ts o f m e rc h a n ts , w h e th e r w h o le s a le
o r r e ta il, a n d o th e r s . P o u r y e a rs : A c tio n s b y m in o rs a g a in s t th e ir tu to rs ,
c o u n tin g fo u r y e a rs fro m m a jo rity .
F iv e y e a rs : A c tio n o n b ills o f
e x c h a n g e o r p ro m is s o ry n o te s , c o u n tin g fro m m a tu rity , a n d f o r n u llity
o f c o n tra c ts o r w ills ; f o r r e c is io n o f p a r titio n s ; to s e t a s id e p u b lic a n d
ju d ic ia l s a le s f o r in fo rm a litie s . T e n y e a r s : A ll o th e r a c tio n s ; th e r i g h t to
a u s u f r u c t o r s e rv itu d e ; a ll ju d g m e n ts , w h e th e r re n d e r e d w ith in o r
w ith o u t th e S ta te , b u t ju d g m e n ts m a y b e re v iv e d b e f o r e la p s e o f te n
y e a r s , a n d a r e th e n g o o d f o r t e n y e a r s f r o m d a te o f re v iv a l. R e a l a c tio n s —
T e n y e a rs : W h e re p o s s e s s o r h o ld s in g o o d f a ith , a n d u n d e r a n a p p a re n tly
g o o d title , tra n s la tiv e o f p ro p e rty , h is title is p e rfe c t b y te n y e a rs ’ p o s s e s
s io n .
T h irty y e a rs : P o s s e s s o r, w h e th e r in g o o d o r b a d f a ith , e v e n w ith
o u t title , a c q u ire s title b y th ir ty y e a rs ’ p o s s e s s io n .
R e n u n c ia tio n o f a n
a c q u ir e d p re s c r ip tio n c a n b e p ro v e d o n ly b y w ritin g , s ig n e d b y d e b to r,
o r h is a g e n t; in te r r u p tio n , i f d e b to r liv in g , m a y b e p ro v e d b y p a ro l,
b u t if h e b e d e a d , m u s t b e p ro v e d b y s ig n e d w ritin g .
A s a le o f re a l
e s ta te m a y b e re s c in d e d fo r n o n - p a y m e n t o f th e p ric e w ith in te n y e a rs
a f te r th e la s t p a y m e n t b e c o m e s d u e .
P re s c rip tio n d o e s n o t ru n a g a in s t
m in o rs o r p e rs o n s u n d e r in te rd ic tio n .
H u s b a n d a n d w ife c a n n o t p r e
s c rib e a g a in s t e a c h o th e r.
1888
M a r r i e d W o m e n . S e p a ra te p r o p e r ty o f w ife m a y b e c o n tro lle d b y
h e r ; re v e n u e s o f a ll s e p a ra te p ro p e rty a d m in is te re d b y th e h u s b a n d ,
a n d a ll p r o p e r ty a c q u ire d b y e ith e r h u s b a n d o r w ife a f te r m a rria g e c o n
s titu te p a r t o f c o m m u n ity , u n le s s b o u g h t w ith th e s e p a ra te m e a n s o f
e ith e r a n d a s a s e p a ra te a c q u is itio n .
A m a rrie d w o m a n c a n n o t su e
w ith o u t th e c o n c u rre n c e o f h e r h u s b a n d o r th e a u th o riz a tio n o f th e
c o u rt, a n d s h e c a n n o t b in d h e r s e lf o r h e r p ro p e rty fo r h is d e b ts .
W ife
h a s n o d o w e r i n h e r h u s b a n d ’s r e a l e s t a t e .
T h e w if e c a n h a v e n o c la im
u p o n th e p ro p e rty o f th e h u s b a n d to th e p re ju d ic e o f th ir d p a r tie s , u n le s s
re c o rd e d .
W h e re o n e o f th e s p o u s e s is a g e n t f o r th e o th e r, h e o r s h e m a y
b e w itn e s s fo r th e o th e r in a m a tte r c o n n e c te d w ith th a t tra n s a c tio n .
A lte r .d is s o lu tio n o f m a r r ia g e b y d e a th o r d iv o rc e t h e s u r v iv o r is e n title d
to o n é - h a lf o f a ll p r o p e r ty r e m a in in g a f te r p a y m e n t o f d e b ts , a c q u ir e d
d u rin g m a rria g e , a n d in c a se o f d e a th , th e u s u fru c t o f th e o th e r h a lf,
u n le s s t h i s h a l f is d is p o s e d o f b y w ill o f d e c e a s e d s p o u s e .
M in e s a n d M in in g .
T h re e p e rs o n s m a y fo rm th e m s e lv e s in to a n d
c o n s titu te a c o r p o r a tio n f o r th e p u rp o s e o f c a r r y in g o n a m in in g b u s in e s s ;
th e c a p ita l m u s t b e n o t le s s t h a n $
o r m o re th a n $ ,
,
.
5,000
Corporations.)
1000000 {See
M o r t g a g e s c a n b e fo re c lo s e d a t a n y tim e a fte r m a tu rity o f th e d e b t,
b y in s titu tin g a re g u la r s u it a n d o b ta in in g ju d g m e n t th e re o n , o r, if th e
a c t im p o r ts a c o n fe s s io n o f ju d g m e n t in fa v o r o f th e h o ld e r, h e c a n a p p ly
to th e c o u r t fo r a n o rd e r d ire c tin g th e s h e riff to s e iz e a n d s e ll th e
p ro p e rty .
A ll m o rtg a g e s m u s t b e r e c o r d e d b e fo re th e y c a n h a v e a n y
.e ffe c t a s a g a i n s t t h i r d p a r t i e s .
T r u s t d e e d s a r e n o t le g a l, a n d c h a tte l
m o rtg a g e s a re u n k n o w n to th e la w s o f L o u is ia n a .
T h e re is n o re d e m p
tio n o f p r o p e r ty s o ld u n d e r m o rtg a g e .
A ll ta c it m o rtg a g e s h a v e b e e n
a b o lis h e d s in c e
. I n m a k in g s a le s o r g iv in g a m o rtg a g e u p o n h is
p ro p e rty , i t is n o t n e c e s s a ry fo r th e h u s b a n d to o b ta in th e s ig n a tu re o f
th e w ife .
A m o rtg a g e r e s u ltin g fro m re c o rd in g a ju d g m e n t c a n n o t h a v e
t h a t e ffe c t u n til a f te r a d jo u r n m e n t o f c o u rt.
[A c t
.]
1870
1888
10000
N o ta rie s P u b lic .
M u s t g iv e b o n d f o r $
,
, i n N e w O rle a n s , a n d
n u m b e r lim ite d to
; b o n d t o b e r e n e w e d e v e r y fiv e y e a r s .
[A c ts o f
am ended by A ct
of
.]
T h e y a re a p p o in te d f o r life .
175
187 1902
1896
P a r tn e r s h ip , L im ite d a n d S p e c ia l.
A ll p a r tn e r s h ip s m u s t b e
c re a te d b y c o n s e n t o f p a rtie s .
S tip u la tio n s th a t o n e s h a ll p a itic ip a te in
th e p ro fits a n d s h a ll n o t c o n tr ib u te to lo s s e s is v o id , b o th a s r e g a r d s p a r t
n e rs a n d th ir d p e rso n s.
A p a r tn e r s h ip c a n n o t b e e x e c u to r, c u ra to r, o r
t u t o r , a n d c a n n o t e x e r c is e a n y p r i v a t e o ffic e .
P a r tn e r s h ip s a re d iv id e d a s
to th e ir o b je c t in to c o m m e rc ia l a n d o rd in a ry p a rtn e rs h ip s .
C o m m e rc ia l
p a rtn e rs h ip s a re s u c h a s a re f o r m e d :
. F o r th e p u rc h a se o f a n y p e r
s o n a l p r o p e r ty , a n d th e s a le th e r e o f e ith e r in th e s a m e s ta te o r c h a n g e d
b y m a n u fa c tu re .
. F o r b u y in g o r s e llin g a n y -p e rso n a l p ro p e rty w h a t
e v e r , a s fa c to rs o r b ro k e rs .
. F o r c a r r y in g p e rs o n a l p r o p e r ty f o r h ire ,
i n s h ip s o r o th e r v e s s e ls .
[A rt.
, C. C ]
O rd in a ry p a r tn e r s h ip s a re
a ll s u c h a s a r e n o t c o m m e rc ia l; th e y a r e d iv id e d in to u n iv e rs a l a n d p a r
tic u la r p a rtn e rs h ip s .
C o m m e rc ia l p a r tn e r s h ip s a re d iv id e d in to tw o k in d s ,
g e n e ra l a n d sp e c ia l.
T h e r e is a ls o a s p e c ie s o f p a r tn e r s h ip w h ic h m a y b e
in c o rp o ra te d w ith e ith e r o f th e o th e r k in d s , c a lle d p a rtn e rs h ip
U n iv e rs a l p a rtn e rs h ip is a c o n tra c t b y w h ic h p a r tie s a g re e to
m a k e a c o m m o n s to c k o f a ll th e p ro p e rty th e y m a y p o s s e s s .
I t m ay em
b ra c e o n ly p e rs o n a l p ro p e rty , o r b o th re a l a n d p e rs o n a l.
I t m u s t b e in w r i t i n g a n d r e c o r d e d i n m o r t g a g e o f f ic e .; P a r t i c u l a r p a r t n e r s h i p s a r e s u c h
a s a r e fo r m e d f o r a n y b u s in e s s n o t o f a c o m m e rc ia l n a tu r e .
M u st b e re
d u c e d to w ritin g if p a r t o f s to c k c o n s is ts o f r e a l e s ta te a n d re c o rd e d in
m o r t g a g e o ffic e .
P a rtn e rs h ip
is fo rm e d b y a c o n tra c t, b y
w h ic h o n e p e rs o n o r p a rtn e rs h ip a g re e s to fu rn is h a n o th e r p e rs o n o r p a r t
n e rs h ip a c e rta in a m o u n t, e ith e r in p ro p e rty o r m o n e y , to b e e m p lo y e d b y
th e p e rs o n o r p a r tn e r s h ip to w h o m i t is fu rn is h e d , in h is o r th e ir o w n
n a m e o r firm , o n c o n d itio n o f r e c e iv in g a s h a r e in th e p r o f its , i n t h e p r o
p o rtio n d e te rm in e d b y th e c o n tra c t, a n d o f b e in g lia b le to lo s s e s a n d e x
p e n s e s to th e a m o u n t.f u r n is h e d a n d n o m o re .
P a rtn e r
c a n n o t b in d o th e r p a rtn e rs b y h is a c t.
P a rtn e rs h ip
m u st
b e m a d e in w ritin g ; m u s t e x p re s s a m o u n t fu rn is h e d o r a g re e d to b e f u r
n is h e d ; th e p r o p o r tio n O f p ro fits w h ic h p a r tn e r is t o re c e iv e a n d e x p e n s e s
a n d lo s e s h e is to b e a r ; m u s t s ta te w h e th e r i t b e re c e iv e d i n g o o d s o r
m o n e y , e tc . ; m u s t b e s ig n e d b y p a r tie s in p re s e n c e o f a t le a s t o n e w itn e s s
a n d r e c o r d e d i n f u l l w i t h i n s i x d a y s i n m o r t g a g e o ffic e .
I f b ra n c h h o u ses
a re e s ta b lis h e d th e c o n tr a c t m u s t b e re c o rd e d m p a ris h w e re b ra n c h e s a re
lo c a te d .
I f p a rtn e r
a llo w h is n a m e to b e u s e d , o r i f h e
ta k e a n y p a r t in th e b u s in e s s o f th e p a rtn e rs h ip , h e w ill b e lia b le a s a
1
2
3
2825
in com
mendami.
https://fraser.stlouisfed.org
Federal Reserve Bank of St. Louis
in commendam
in commendam
in commendam
in commendam
L A W
S — L O U IS IA N A .
in solido
g e n e ra l p a rtn e r.
O rd in a ry p a rtn e rs a re n o t b o u n d
fo r d e b ts o f
p a r tn e r s h ip , a n d n o o n e o f th e m c a n b in d h is p a rtn e rs u n le s s th e y h a v e
g iv e n h im p o w e r to d o s o ; e a c h is b o u n d f o r h is s h a r e o f t h e d e b t in p ro
p o rtio n to th e n u m b e r o f p a rtn e rs .
C o m m e r c i a l p a r t n e r s a r e e a c h lia b le ,
fo r th e e n tire d e b ts o f th e p a rtn e rs h ip .
P a rtn e rs h ip s e n d :
. B y th e ex
p ira tio n o f th e tim e fo r w h ic h s u c h p a rtn e rs h ip w a s a lte r e d in to .
. By
th e e x tin c tio n o f th e th in g , o r th e c o n s u m m a tio n o f th e n e g o tia tio n .
.
B y th e d e a th o f o n e o f th e p a rtn e rs , o r b y h is in te rd ic tio n .
. B y h is
b a n k ru p tc y .
. B y t h e w ill o f a ll t h e p a r tie s , le g a lly e x p r e s s e d , o r b y th e
w ill o f a n y o f th e m , f o u n d e d o n a le g a l c a u s e , a n d e x p r e s s e d in th e m a n
n e r d ire c te d b y la w .
.
.
1
3
5
P o w e rs o f
g e n e ra l f o r a ll
g e n e ra l te rm s
o r d o a n y o th e
2
4
A tto rn e y .
M a y b e w r i t t e n o r o ra l.
M a y b e e ith e r
a f f a ir s o r s p e c ia l f o r o n e a f f a ir o n ly .
O n e c o n c e iv e d in
c o n f e r s o n ly p o w e r o f a d m i n is tr a tio n ; to s e ll m o rtg a g e
r a c t o f o w n e rs h ip , th e p o w e r m u s t b e e x p re s s a n d s p e c ia l.
P riv ile g e s .
P r iv ile g e s a g a in s t m o v a b le s , s u c h a s
fo r th e u n p a id p u rc h a s e p ric e , n o t re q u ire d to b e re c o rd
c a s e s a s th e G e n e ra l A s s e m b ly m a y p re s c rib e b y la w .
s titu tio n o f
.)
A fu rn is h e r o f w a te r fo r c ro p s h a s
s e c u re p a y m e n t th e re fo r.
[A c t
of
.]
A ct
of
e rm e n a lie n a n d p riv ile g e o n c ro p .
1898
26 1898
th
ed
(A
a
e v e n d o r ’s lie n
e x c e p t in su ch
rtic le
, Con
lie n th e re o n to
g iv e s th re s h -
187
53 1906
P ro b a te L a w .
T h e r e is n o s p e c ia l p r o b a te c o u r t.
D is tric t c o u rts a re
v e s te d w ith p r o b a te ju ris d ic tio n .
S u c c e s s io n s a r e o p e n e d u p o n p e titio n
o f in te re s te d p e rs o n s in th e p a r is h w h e re th e d e c e a se d re s id e d if h e h a d a
d o m ic ile o r fix e d p la c e o f r e s id e n c e in th e s t a t e ; in th e p a r is h w h e re h e
l e f t h i s la n d e d p r o p e r ty , i f h e h a d n e ith e r d o m ic ile n o r p la c e o f re s id e n c e
in th e s ta te ; o r in th e p a ris h in w h ic h it a p p e a rs fro m th e in v e n to ry th a t
h is p r in c ip a l p r o p e r ty w a s s itu a te d , if h e le f t p r o p e r ty in s e v e ra l p a ris h e s ;
i n t h e p a r i s h w h e r e h e d i e d , i f h e h a d n o c e r t a i n d o m i c i l e n o r a n y fix e d
p ro p e rty .
T h e j u d g e a p p o in ts a n a d m i n i s t r a t o r w h e n d e c e a s e d le a v e s n o
w ill.
A d m in is tr a to r s m u s t r e n d e r a n n u a l a c c o u n ts , a n d a r e a llo w e d
p e r c e n t o n th e in v e n to r y a s c o m m is s io n s .
A tto r n e y s a t la w a r e a p p o in te d
.to r e p r e s e n t a b s e n t h e i r s .
P ro p e rtie s a c q u ire d d u rin g m a rria g e a re p re
s u m e d to b e c o m m u n ity p ro p e rty , a n d s u rv iv in g sp o u s e is o w n e r o f oneh a lf.
W h e n e ith e r h u s b a n d o r w if e d ie s , le a v in g n o a s c e n d a n ts o r
d e s c e n d a n ts , a n d w ith o u t h a v in g d is p o s e d b y w ill o f h is o r h e r s h a re in
th e c o m m u n ity , th e s u r v iv o r h o ld s s u c h s h a r e in u s u f r u c t d u r in g h is or
h e r n a tu r a l life
C
2%
SeeSuccessions.)
(See Bills and Notes.)
P ro te s t.
R a i l r o a d s n o t p e r m i t t e d t o c h a r g e m o r e t h a n t h r e e c e n t s p e r m ile .
rA c to fl
.]
R a ilro a d s m a y m o rtg a g e its p ro p e rty a n d fra n c h is e s .
[A c t
of
.]
S tre e t r a ilr o a d c o m p a n ie s m a y c o n s o lid a te . [A c t
of
.]
R a ilr o a d C o m m is s io n to h a v e ju r is d ic tio n o v e r ra ilro a d s .
[A c ts
and
of
and A ct
of
.]
890
23 1898
1902
100 1898
73 74
24 1904
R e c o rd s .
N o ta rie s p re s e rv e re c o rd s o f a c ts p a s s e d b e fo re th e m , an d
m u s t re c o rd a ll d e e d s re q u ire d to b e re g is te re d w ith in f o rty -e ig h t h o u rs
a fte r p a s s in g th e m .
C o u rt re c o rd s m a y b e w ith d ra w n b y a tto rn e y s u p o n
m o tio n a n d u p o n re c e ip tin g fo r sa m e .
R
der
s a le
and
e d e m p tio n .
P ro p e rtie s so ld u n d e r fo re c lo s u re o f m o rtg a g e , o r u n
w rit o f
c a n n o t b e re d e e m e d .
N o re d e m p tio n e x c e p t fo r
f o r t a x e s , a n d a r e l i m i t e d t o o n e y e a r f r o m d a t e o f r e g i s t r y o f s a le ,
p a r ty re d e e m in g m u s t p a y ta x e s , c o s ts , a n d
p e r c e n t m o re.
fieri facias
20
{SeeLiens and Privileges.)
R e v is io n .
T h e c iv il c o d e , c o d e o f p r a c tic e , a n d re v is e d s ta tu te s w e re
r e v i s e d i n 1870. N e x t s e s s i o n o f t h e G e n e r a l A s s e m b l y w i l l b e h e l d i n 1908.
R e p le v in .
N o t k n o w n in L o u is ia n a la w .
S e p a ra tio n fro m B ed . a n d B o a rd .
M a y b e c la im e d re c ip ro c a lly
fo r:
. A d u lte ry .
. W h e n s p o u s e c o n d e m n e d to in f a m o u s p u n is h m e n t.
. H a b i t u a l in te m p e r a n
@FedFRASER