Full text of Rand McNally Bankers Directory : January 1909 : Banking and Commercial Laws

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BANKING AND COMMERCIAL LAWS.
COMPILED EXPRESSLY FOR THE BANKERS’ DIRECTORY,

SYNOPSIS OF THE LAWS OF ALABAMA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y M e s s r s . B o n d u r a n t & S m i t h , Attorneys
at Law, Birmingham. (See Card in Attorneys’ List.)
Acknowledgments or proof of real estate instruments may be
before one of the following courts or officers: 1st. Within this State,
judges of the Supreme and Circuit Courts and the clerks of such courtl
chancellors registers m chancery, judges of the courts of probate
justices of the peace, and notaries public. The official should certify
that the person signing the conveyance is known to him and acknowl­
edges that being informed of the contents of the conveyance he
EÇHB8 Æ 0 J S * voluntarily on the day the same bears date.”
2d. Outside of State— Judges and clerks of any federal court, judges
and clerks of any court of record in any state, notaries public or
commissioners appointed by the Governor of this State; beyond the
limits of the Umted States by the judges of any court of record
mayor or chief magistrate of any city, town or borough, or county'

I»IIB IliiW B B B B M I

^nects which are liable to the satisfaction of his debts1
plaintiff must give bond m double the amount claimed. Attachments
enforce the cofiectffin of
A t V tA o * b due °J n,ot’ at the time-the attachment is taken
Artaiffiy Acertaffiexl0rlT d Tdemaild'
am9™ t of which can be
contracf wh°pn
3'
recover damages for a breach of
Ww f
tb damages are not certain or liquidated
4may sue
h* damage? merely. One non-resident
m a L ig oath tha? l l B i B
aga® st another non-resident by
w S t h f State nfthhA def(Udant bas L ot sufficient property
A - i f ? tne btate of his residence wherefrom to satisfy the debt
M
M
M
b® sued out in aid of a pending suit X n any
° i . % aboYe grounds exist. Garnishment process will issue in
by gA ingCb“ n d t
caf s-,f Garnishment may be dissolved
the v m n n rii w
A all cases of attachments sued out solely upon
tne ground that the defendant is a non-resident the attachment
may issue without giving bond, but if defendant appears and pleads
| bond must be given or the attachment dismissed.
Pleads,

SI

The nai ionai bank system is in force in this State uncon. : Ü y “ y d ‘ p W " ’ ° ™ » 1" ' » “ » i ™ ! « » y;
tn tIA ,fP any
by Stat? laws> except that the shares are subject
t lm t S !
aS ° ther personal ProPerty. but the bank is required to pay
Actions. All ordinary suits at law are commenced by suing out
a summons which must be accompanied by a complaint stating the
cause of action. Non-resident plaintiffs are required to give security
in Tthtse | L ^ PrRVisl°n I B
for tbe establishment of banks of issue
for costs. When two or more persons are jointly bound b y judgment
iLu au ta^e‘ ?.anb3 of discount and deposit may be established
bond, or agreement, the obligation is several as well as joint.
!
A r p A general incorporation laws. Depositors not claiming interest
are preferred creditors m case of insolvency.
.
Acceptance. Unconditional promise in writing to accept a bill
Any banker who discounts a bill or note at a greater rate than 8
before or after drawn is good m favor of all who take it upon faith
per cent ca,nnot enforce the collection of same except as to the printhereof for vaiue The holder may decline a qualified acceptance and
prmcipak ^ ^
mterest has been paid R must be deducted from the
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged.
"
nnlVAAi?ral? L Rec,eiPt must be given for if demanded. Pledges or
A Check. Is a bill of exchange on a bank payable on demandtransferable without transfer of the debt; after two
must be presented with reasonable time after issue and if dishonored
notice must be given or drawer is discharged to the extent of loss
days, at* public outcry2 C°Uaterals may be sold. by advertising for five
caused by delay ; does not operate to assign any part of drawer’s funds
.A „ 0ndliti0nal sJalef ,are g?od between the parties, but void where
m bank, and bank is not liable unless it accepts or certifies. If holder
I l i a l B
debyered to vendee as against purchasers for a val­
V m
certified the drawer and endorsers are discharged
consideration without notice, mortgagees and judgment credii ou
? resent n^ otiable instrument law of Alabama, consisting of [ uable
tors,
unless
m
writing
and recorded in the office of the probate ju d g i
196 sections went into force August 9, 1907. Its provisions do not
apply to instruments made prior thereto. The act so materially
tbe fobowing cases, every agreement is void,
unless such agreement, or some note or memo, thereof, expressing
changes the law m this State as to suggest the propriety of special
examination in any doubtful ease.
^
the consideration, is in writing and signed by the party to be charged1. Fvery agreement which by its terms is not to be performed within
Administration of estates is had in the Probate Courts of decedents’
fr°m the making thereof. 2. Every special promise by an
residence All claims must be presented within twelve months after
executor or administrator to answer damages out of his own estate
the same have accrued or withm twelve months after the grant of
L L Vei7 spe°ial Promise to answer for the debt, default, or miscarletters testamentary or of administration, or else barred. Infants and
? ,L an0th-eL , 4-, Rvery agreement, promise, or undertaking,
persons of unsound mind have one year to present their claims after
™ad° uP«n consideration of marriage, except-mutual promises to
disabilities removed. Administration of intestate is granted, 1stmarry. 5. Every contract for the sale of lands, tenements, or heredi­
To the husband or widow; 2d: The next of kin entitled to share in
taments or of any mterest therein, except leases for a term of not
longer than one year, unless the purchase money, or a portion thereof,
A®. ^ trlbA 10n .th®es,tate ; .? d: 0Tbe largest creditor of the intestate
residing withm this State; 4th: Such other person as the judge of
be paid, and the purchaser be put in possession by the seller.
Gf+P° m*j' T i ere cf n be no appointment until after
. C on v ey an ces. All persons of the age of twenty-one years, not labor­
expiration of fifteen days from date of death. Preference must be
ing under some legal disability, may convey their real estate or any
exercised withm forty days or rights relinquished-. If several entitled
interest therein by instrument in writing signed by the grantor, or his
to administer, men are preferred to women and whole blood to half
agent
duly authorized m writing, and attested by one witness, or if the
blood. JNon-resident executors and administrators may sue in this
grantor cannot write, by two witnesses who are able to write, and who
j-tate by recording in probate judge’s office copy of letters and giving
sign their names as witnesses. _ If the grantor is not able to sign his
bond to faithfully administer property.
name it must be written for him, and the words “ his mark” written
Affidavits may be taken within the State before every judge or
over or against it. The person writing his name must sign as a wit­
clerk of any court, justices of the peace, and notaries public or any
ness. A parol lease for less than one year is valid. A married woman
other person invested by law with judicial functions. Outside the
over
eighteen years of age may convey dower in her husband’s lands,
¡state and withm the United States may be taken before anv judge or
and has generally the same rights as married women over twenty-one
clerk of Federal Court, judge of any court of record in any state
years
oi age. I he husband must join in any conveyance of the wife’s
notaries public and commissioners appointed by the Governor.
separate estate. Conveyances, to operate as notice, must be acknowlAllens. ‘‘ Foreigners who are, or may hereafter become, bona fide
u n i . ™ recorded. No time is required within which conveyances
residents of this State, shall enjoy the same rights in respect to the
shall be recorded. They operate as notices from date of delivery to
possession, enjoyment, and inheritance of property as native-born citi­
probate judge for record. (See Acknowledgments.) They may be
zens. — bee. 34, Const.
used as evidence without further proof of execution. Leasehold
estates
may be created to last not exceeding twenty years, but if
A lterations. Fraudulent or material, do not affect original instrulonger void as to excess. A married woman must make the following
nient m hands of innocent holder in due course.
acknowledgment to a conveyance of a homestead:
Arbitration. Courts are compelled by statute to make an order
State o f .............. , County o f ........... .. ■
submitting cases for arbitration when moved for by the parties, and
,, R
............. judge o f...............(or other officer) do hereby certify
to continue this cause for one térm for an award, but not longer with­
that, on t h e ........ .,-••• -day ° f ......................., 19. .. ., came before me
out consent of parties, or good cause being shown therefor.
The
the withm named .................................., known to me (or made
award ol the arbitrators may be entered up and enforced as the judg­
known to me) to be the wife of the within named ...........................
ment of the proper court whether made in a pending suit or not.
who, being examined separate and apart from her husband touching
. „ A-:T estj •Tbere cap be no arrest on civil process, except for conher
signature to the within ..................., acknowledged that she signed
tempt and in cases of alleged lunacy.
the same of her own free will and accord, and without fear, con­
straint,
or threats on the part of her husband.
^ , AsSi gA m ents an d Insolvency. Every general assignment made i
ay a debtor, or conveyance by a debtor of substantially all of his
In witness whereof, I hereto set my hand this .............. day of
property m payment of a prior debt, b y which a preference or priority
f PnyL ent ls.?lven to one or more creditors, shall enure to the benefit
oi all the creditors equally, but this section shall not-apply to mort­
.
(Official Character.)
gages, pledges, or pawns given to secure a debt contracted contemCorporation to make following acknowledgment:
_ ...........................
th a t......................................) ...............
poraneously with the execution ?f the mortgage. All assignments by
whose name a s ...................... 7 ......... . of the said corporation,- is signed
°*iïaj de-iW:d;î1 mtent to hinder, delay, or defraud creditors are
to the foregoing conveyance, and who is known to me, acknowledged
L Y A11 «eons of assignment for the benefit of creditors shall, as
soon as executed, be filed and recorded in the office of the judge of
before me on this day that, being informed of the contents of the
irobate oi the county m which the property is situated. Every
conveyance, he, as such officer, and with full authority, executed the
judgment confessed, attachment procured bv the debtor, or other dissame voluntarily for and as the act of said corporation.
posffion of property by which a debtor conveys all, or substantially !
Corporations. Every company, corporation, or association, not
’ U nis property which is subject to execution in payment or as
organized under the laws of Alabama, engaged in any other business
security lor a debt shall be deemed a général assignment.
than insurance, shall, before engaging in any business in this State',
Proces,s wil1 issue upon affidavit by the creditor or his
file ni tbe office of the Secretary of State, at tbe capitol in Montgomerys
A
amount due and that the debtor absconds, or resides,
an instrument in writing, under the seal of such company, corporation,
ut oi the ¡state, or secretes himself so that process cannot be served
or association, and signed officially b y the president and secretary
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1141

1142

BANKING AND COMMERCIAL LAW S—ALABAMA.

thereof, designating at least one known place of business in this State *
and an authorized agent residing thereat. If such corporation is
engaged in any business of insurance, the statement must be men in the
office of the insurance commissioner. If the agent is changed, a new
aper must be filed. Held not to apply to corporations selling goods
y traveling agent or sample. Foreign corporations transacting busi­
ness in this State without complying with above provisions, for each
offense forfeit to the State $1,000, and any person acting as agent 101
foreign corporation that has not so compiled, forfeits for eacm onense
$600.
All foreign corporations doing business m this State are
required to pay license fees ranging from $25 upward, according to
capital. Foreign corporation's can do ilo business until fees are paid
and all contracts before then are void. Every foreign corporation
required to procure from Secretary of State a permit to do
business in the State. This permit costs $10 per annum.
C ou rts. Terms and jurisdiction. The Supreme Court, except
to issue writs of injunction, habeas corpus, quo warranto, and other
remedial and original writs necessary to its supervision of interior
courts, and impeachments of judicial officers, has only appellate juris­
diction and cases are tried on the record sent up. Circuit Courts
have u n lim ite d common law jurisdiction when the matter or sum
in controversy exceeds $50, and exclusive jurisdiction of libel, slander,
assault and battery, and ejectment. The courts of chancery have
exclusively equity jurisdiction. Regular terms of both twice a year
in nearly every county. Chancery Courts have full equity powers.
Justices of the peace have jurisdiction of all civil causes where the
amount in controversy does not exceed $100 in value, except m cases
of libel, slander, assault and battery, and ejectment. Names of all
parties, plaintiff and individual names of co-partners, must be set out
in writs. Partnership may be sued in courts of law, m firm name,
without setting forth names of co-partners, but judgment m such suits
bind only partnership’s property, not that of individual partners.
The writ may be served upon any one of the partners; the judgment
reaches the partnership property alone. Any one partner, or his per­
sonal representative, may be sued alone on a partnership obligation.
Non-residents must give security for costs when suit is commenced or
within such time thereafter as the court may direct. Money may be
deposited with the clerk instead of sureties.
D a y s o f G race are abolished. (See Negotiable Instruments.)
D e p o sitio n s. In eases at law, depositions may be taken of wit­
nesses who cannot be present at the trial in the following cases;
When the witness is a female; when the witness is too sick to attend
court; when the witness resides more than 100 miles from the place ol
trial, or is absent from the State; when the witness is about to leave
the State, and not return in time for the trial; when the witness is the
sole witness of the facts; when the witness is one of the ofneers desig­
nated in Code No. 4030. Affidavit must be made of one of the above
facts, and of the materiality of the witness. May be taken on inter­
rogatories by a commissioner appointed by the court for that purpose.
The commissioner may be any suitable person, need not be an officer.
In equity suits, where witnesses live within 100 miles of the place ot
trial, depositions may be taken by oral examination before the regis­
ter, or a special examiner, or commissioner appointed for the purpose.
D e sce n t an d D istrib u tio n .
The real estate of persons dying
intestate, in this State, descends, subject to the payment ot debts
and the widow’s dower, as follows: First- to the children ot the
intestate or their descendants per stirpes in equal parts. N ext, to the
parents, if they survive, in equal parts. If only one parent survives,
then one-half to such parent and one-half to the brothers and sisters ot
the deceased or their descendants, and if there be no brothers and sis­
ters and thier descendants, then the whole estate shall go to the sur­
viving parent. If there are no children or their descendants, and no
father or mother, then to the brothers and sisters of the'intestate, or
their descendants, in equal parts. If there are none of the above to
take, then the whole to the husband or wife _of the intestate, and it
there be no husband or wife or none of the foregoing living, then to the
next of kin in equal degree in equal parts. If there are no next ot kin
it escheats to the State. The personal estate is distributed the same
as the real estate, except that if there are no children the widow is
entitled to all of the personal estate. If but one child she takes onehalf. If not more than four children to a child’ s part, and u more than
four to one-fifth. Posthumous children take as others. Illegitimate
children inherit from their mother. The husband upon the death oi
the wife is entitled to half of her personal estate absolutely, and to the
use of all of her real estate for life, unless he has been divested ot all
control over her estate b y a decree of the Chancery Court".
D iv o r c e . The Chancery Court and other courts having equity
powers have exclusive jurisdiction of divorce and all matters
pertaining thereto, and divorce may be for the following causes:
T o either party for adultery, for voluntary abandonment for two
years, for imprisonment in the penitentiary for two. years, when the
sentence is for seven years or longer, for commission ot the crime
against nature, and for becoming addicted to habitual drunkenness
after marriage. May be granted to the husband when the wife was
pregnant at the time of marriage without his knowledge or agency.
May be granted to the wife when the husband has committed actual
violence on her person attended with danger to. life or health, or trom
his conduct there is reason to apprehend such violence. J he plamtin,
if the defendant be a non-resident, must have been a bona fade resident
atlleast twelve months, and when the ground of divorce is abandon­
ment must allege and prove that he or she has been a bona fade resi­
dent of the State for three years next before the filing of the bill.
Pending a suit for divorce the court must make an allowance for tfae
support of the wife out of the estate of the husband, suitable to tfae
estate and condition of the parties, and alimony is allowed after divorce
according to the circumstances of the case. Divorce for adultery bars
dower. A divorce deprives the husband of all control over the wife s
separate estate.
D o w e r ., Unless the wife has relinquished her right of dower in the
manner provided by statute she is, upon the death of the husband,
entitled to dower in all lands of which the husband was seized m tee
during the marriage, or of which another was seized to his use or to
which he had a perfect equity, having paid all the purchase money
therefor. The dower interest is one-half when the husband leaves no
lineal descendants, and one-third when the estate is insolvent or tfae
husband leaves chfidren or their descendants. If the wife has at the
death of the husband a separate estate equal m value to her dower
interest, she shall not have dower, and if of less value is only entitled
to such amount as with her estate will make the full value of the dower.
E x e cu tio n s . Property subject to: 1st: On real property to
which the defendant has a legal title or a perfect equity{ having paid
the purchase money, or in which he has a vested interest,m possession,
reversion, or remainder, whether he has the entire estate, or is entitled
to it in common with others. 2d: On personal property of the defen­

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dant (except things in action), whether he has. the . absolute title
thereto, or the right only to the possession thereof for his own life, the
life of ariother, or a less period. 3d: On an equity of redemption in
either land or personal property, when any interest less than the
absolute title is sold. The purchaser is subrogated to all the rights
of the defendant, and subject to all his disabilities.. Writ of fieri facias
is a lien only within the county m which it is received by the
officer, on lands and personality of defendant subject to levy
and sale, from the time only that, the writ is received by such
officer and continues as long as writ is regularly delivered to the
sheriff without the lapse of an entire term.
A statement of a judg­
ment certified b y the clefk of the court may be filed in the office of the
judge of probate, which makes the judgmeot a lien within the county
in which it is filed for ten years thereafter. Execution may be issued
on such judgment at any time. Executions issued by justices are liens
on the property of the defendant, on which they are levied, from the
time of the levy. An order must be obtained from the Circuit Court
for the sale of lands levied on under execution from a justice s court.
No stay of execution in Circuit Court except by appeal, and supersedeas
bond which delays collection until affirmance b y Supreme Court, and
entails 10 per cent damages, with legal interest and costs. In justice s
court stay is granted on good security, below $20, thirty days; over
$20, sixty days.
F ra u d . Obtaining money or goods on credit under false color or
pretense of carrying on business, or under false representation of
pecuniary condition, with intent to defraud, or bringing into the ¡state
money or goods so obtained, punished as larceny.
G a rn ish m en t may issue in any case after suit commenced upon
affidavit of necessity and bond as in attachment cases, or after judg­
ment, without bond.
H u sb a n d a n d W if e . The wife has full legal capacity to contract
as if she were sole, except that she can not alienate or encumber her
real estate without the husband joining m the conveyance, unless the
husband be insane or has abandoned her, or is a non-resident, or is
imprisoned under a conviction for crime for a period of two years or
more, in which cases the wife may convey it as if she were sole.
Husband and wife may contract with each other, but the wife can­
not be surety for the husband. All of the property and the earnings
of the wife are her separate estate, and are not liable for the debts of
the husband. The wife must sue and be sued alone for all matters
relating to her separate estate or contracts, and for all torts to her
person or property. The Chancery Court has power to relieve of any
or all disabilities of coverture.
In terest. Legal rate is 8 per cent, and same is allowed on all open
accounts, judgments, and decrees. Usury forfeits all interest Usu­
rious interest paid may be recovered back within twelve months after
completed payment.
J u d g m en ts of courts of record are proved by a certified transcript.
Judgment not a lien, but when a certified statement thereof,.made by
the court of the clerk, is filed in the office of the probate judge, it
becomes a lien on all property of the defendant therein m the county,
which is subject to execution for ten years, to enforce which execution
may issue at any time within that period. Execution received by
sheriff during life of defendant may be levied after his decease or alias
execution issued and levied if there has not been lapse of entire term
do as to destrov lien originally created. Above applies to executions
from Circuit and Chancery Courts. An execution issued by a justice
of the peace is a lien only from time of its levy. All agreements to
confess judgment, or to authorize another to confess judgment, made
before the commencement of the suit in which such judgments are
so confirmed are void.
M ech a n ics’ L ie n . Mechanics, material men, and laborers have a
lien on houses built and the ground on which they stand upon com­
plying with the law.
L ien fo r R e n t. The'landlords of any store house, dwelling house,
or other building, shah have a lien on the goods, furniture and effects
belonging to the tenant, and sub-tenant for his rent, which shall be
superior to all other liens, except those for taxes, also on crops grown
on rented premises for rent of the current year.
L im ita tio n s. Notes and stated accounts, six years; open accounts,
three years; sealed instruments, real actions, and motions agamst
officers, ten years; judgments, twenty years; actions on the case, one
vear Bar created by statute can only be removed by a partial pay­
ment, made on the contract before the bar is complete, or by an uncon­
ditional promise in writing. If anyone entitled to bring an action,
or make an entry on land, or defense founded on title to real estate,
be at the time such right accrues, within the age of twenty-one years,
or insane or imprisoned on a criminal charge for a term less than life,
he shall have three years, or the period allowed by law, for bringing
such action, if the period allowed by law be less than three years, after
the termination of such disability to bring such suit, etc., but no action
can be commenced after twenty years. Statutes of limitation apply
to married women’ s separate estates. Actions founded on a promise in
writing not under seal, or for trespass to person or property, must-be
brought within six years. Statutes of limitation are made applicab e
to equitable as well as legal demands, but do not run agamst direct
trusts Any agreement or stipulation to shorten the period prescribe
b v law for the bringing of any action is void. Actions seeking relief
on the ground of fraud where the statute created a bar, the clause of
action begins to rim upon discovery of the fraud by aggrieved Part}No promise or acknowledgment is sufficient to remove the bar to a
suit, except a partial payment made upon the contract by the party
sought to be charged before the bar is complete, or an unconditional
promise in writing, signed b y the party to be charged thereby.
M arried W o m e n . (See Husband and Wife.)
M o rtg a g es are executed and acknowledged in the same manner as
deeds. May be foreclosed b y bill in equity, or if there be a Provision
to that effect, b y sale under power, upon such default as authorized
a sale All mortgages are void against creditors or purchasers without
notice, unless recorded. Mortgages operate as notlceJ r™
delivery to probate judge for record. There is no fixed time wthin
which they shall be recorded. Homestead realty cannot be mort
gaged or otherwise aliened without the voluntary signature and assent
of wife, evidenced b y acknowledgment, upon private examirintion
separate and apart from the husband and certified. A ll mortgages
must be in writing, signed by the mortgagor.
Payment of mortgage
debt made before or after maturity of debt, revests m the mort­
gagor, or his assigns, the. title to the real or personal Prop
ertv mortgaged, if made in the lifetime of the mortgagor,
made after his death, such payment revests title to personal
property in the personal representative, and title to reaity in the heirs
devises, or legatees of the mortgagor. Chattel mortgages must be
writing. When the mortgagor issued b y the mortgagee for posses

BANKING AND COMMERCIAL LA W S—ALASKA.

114?

_____________________________ .____________________________

«Sp P P j mortgaged property he may defend by showing payment
i f after judgment Payment and a tender of the balance, or may pay
Negotiable Instruments. I Must be payable in money and must
contain an unconditional promise to pay a sum certain on demand or
at a fixed or determinable future time; must be payable to a specified
person or bearer ; may be m installments and contain provision that
on any default the whole shall become due; with exchange fixed or
current rate, interest and attorney's fees for collection; may authorize
sale of collaterals andconfessionof judgment; if it reads “ I promise to
pay” all signers are jointly and severally liable; may be payable at
fixed time after date or sight, or after specified certain event but not
upon a contingency; cannot waive exemption from execution- need
not specify value given nor place where drawn or payable- if issued
accepted, or endorsed when overdue it is payable on demand; may be
payable to two or more payees jointly, or one or more of several payees
or to the estate of a deceased person; absence or failure of considera.tion a defense against one not a holder in due course and partial failure
a defense pro tanto. One not a party to instrument placing a signature
m blank before delivery becomes an endorser. Every endorser engages
that on due presentment it shall be honored or that he will pav fh l
amount to holder or any subsequent endorser who may be compelled
to pay; no days of grace; when maturity falls on Sunday or holidav
payment is due on next business day; if due on Saturday must be pre­
sented on next business day, but if payable on demand holder may
present same before noon on Saturday. Fraud and circumventionin
procuring execution of instrument is a defense against any holder
Presentment.^ Is’ not necessary to charge one primarily liable
except m case of bank notes; if payable at special place ability and
willingness to pay ,t there at maturity is equivalent to a tender
if not on demand it must be presented on day it falls due, if on demand
then within a reasonable time after its issue, except a bill of exchange
must be presented within reasonable time after its last negotiation
P rotest of Foreign B ills. May be made by notary public or by
anyrespectable rif d ent of the. place in presence of two or more
credible witnesses; bill of exchange does not operate to assign funds in
hands of drawee and he is not liable unless he accepts.
Promissory; Note. Must be unconditional promise in writing to
pay on demand or at fixed or determinable time a sum certain in money
to order or bearer, and where drawn to maker’s own order is not com­
plete until endorsed by him; may be in installments.
Powers of Attorney. Powers of attorney or other instruments
conferr ng authority to convey property may be proved or acknowl­
edged m the same manner and must be received as evidence to the
same extent as conveyances (see Conveyances), and must be exe­
cuted as conveyances. A power of attorney to relinquish dower must
be executed b y husband and wife jointly. Her signature must be
attested by two witnesses who are able to write or acknowledge as
required for conveyances of land.
eQge as
P robate Law . A court of probate, consisting of one judge is
established for each county in the State. This court has jurisdiction
of the probate of wills, of granting letters testamentary and of admin“
istration, and the repeal or revocation of the same; of the settlements
of accounts of executors and administrators, of the sale and disposition
of the real and personal property belonging to, and the distribution of
intestates estates. I Also of the appointment, removal, and settlements
of guardians for mmors and persons of unsound mind the binding out
of apprentices, the allotment of dower, and the partition of land belong° T DerS- +t,A eourt,?f Probate njust be held at the court house
of each county on the second Monday of each month, and the judge
may hold special or adjourned terms whenever necessary, but such
court must at all times be considered open, except on Sundays.
Protest. (See Negotiable Instruments.)
R eplevin . Writ of replevin lies to take property in custody if an
officer of the law and is limited to this. The action of detinue lies
to recover personal property in all other instances.
become delinquent on the 31st of December of the year for
which they_were levied, and the lands may be sold by certain proceedmgsin the Probate Court commenced in the month of March following
land% sold f« r delinquent taxes receives from the
collector a certificate of purchase, containing a description of the
property the date and amount of assessment, taxes, costs, 'fees etc
which after the expiration of two years from the date of the sale is
e v f d e ^ o f tiH0/ a r eed, frori1j tile Probate judge— which is prima facie
flivTu 6 iiT t d ' Lands sold for taxes may be redeemed within two
? wn?r>mortgagee, or any person having a beneficial inter£ I 9
| depositing with the probate judge of the countv in
which the lands were sold; the amount of purchase monev, with interest
to thePsearieea n d ? f nnT F and a11 ta£es i ]>|| have accrued subsequent
° J X Ie' and interest thereon, at 8 per cent per annum; also all costs
? J ± ChaigeS- Whenever land is sold for State or county taxes, and
from any cause such sale is invalid to pass title to purchaser, sale
aS transfer
Purchaser of lien of state or county, or the
property ior payment of taxes for which sold. All cotton factories
vkrs^hall h cl3 whlcA sha11, be constructed in this State within five
X
mill« H
Pt fro-m taxation for a period of ten years, provided
such mills represent an mvestment of $50,000.
»ivopd^hv- fhp
of -real or pers° nal property must be in writing
wgned by the testator in presence of two witnesses. Unwritten will
$500 inOva iir ? d ty V?Kd only M
th? P^Perty doesT otexcIed
his hnmJ 1 p ’
d mUSt b! made dunng last sickness by testator at
te ta to ^ win f T 3 PIT lent “ ust be cal ed on to witness that it is
wTthln sfx
d
be reduced to writing by one of-the witnesses
WoDertv N'JA-nM «0r +° Ver eifbteen mayi make a will of personal
Probate or C hanceV court™ ™
probated' May he contested^ in

SYNOPSIS OF THE LAWS OF ALASKA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by F. E. F uller , N ome.
(See Card in Attorneys List.)
A ck n ow led g m en ts.

(See Deeds.)

and Cil1l°?!frmpThfe distinction between actions at law and suits in equity
suitshi i n ^ L 0f Pieadmg heretofore existing in actions at law and
fcnonfinated*»
ab9hshed, and there is but one form of action,
vate r i X « « A i T 1 aci lon- for the enforcement or protection of pria c M
iaK
nd the redress or prevention of private wrongs. Every
action must be prosecuted m the name of the real party in interest

ill


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®Y<fP t t bat an administrator or executor, a trustee of an express trust
authorized by statute may sue without j?oiffing

the ¿ourt the ¡ ¡ ¡ ¡ 1
1
j her.ein specified, and the existence o f
liinpnoAN L-e •ct Ylat su°h judge is a member thereof, and the eenunder t h f s e l f S o f 6 B
be certified by the clerk’ of the comt,,
speak in t fe L s t person
affidavits OT depositions witness should.

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Y ]ami
ye l s‘ Any ah“ may also acquire and hold lots or parcelsAJand in any incorporated or platted city, town, or vfllage or m anv
TTni+p
c aim’ but is not authorized to acquire title from the
United States to any of the public lands
q
me irom ther

acHons-St*1 S
tdu feadant may he arrested in the following civil
• % m m ^he recovery of money or damages when the defendpsjfficjNpiSpJt0 r™ ove / rom *he district with intent to defraud his
fully taking1" detaining t0 person; °.r For willfully injuring or wrong^ gV detaining, or converting property. 2. For a fine or
apphed or conA rtcY tn l l Pr°Perty embezzled or fraudulently misney or | W
? T i r ^ H by a public officer, or by an attoro^Ali r Dy ,an otheer or agent of a corporation m the course of hi«.

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is i

benefit
m
m s©

thereof11’ ¡1
S 1defendant
? i? ntj to* d?pri7
e guiltv
plaintiff
of the
tnereoi.
4. When
When Ithe
has been
of fraud
in
hrmLh+tmg a debt, or incurring the obligation for whicffithe action is

"

“ d.*hni , t e „ m3 S ri S H

f H

|

“ is i b » ‘ *»

or B S S P l ®
T ue Plai? tiff’ H the time of issuing the summons
actffin unnndn’ ema7 h? Ve the Pr°P.erty of defendant attached in an.
monev and 1
ex+press °r™ plied , for the direct payment o f
money, and, 1, which is not secured by mortgage, lien, or Dledve unnn
rpnd°r P,ersonal Property, or if so secured, when the security 1ms been
reSdfn^ f fgaY ry. byA he ac* of the defendant; or, 2, against I non“
resident defendant. Ih e writ issues whenever the plaintiff or anvto Diaintiffbf«npr!ffi-es
aibdavit showing that defendant is ’indebted
legal set fffl orcm m L h1 ^m°sUnt of indebtedness over and above alb
for+hp
F oounter-claims) upon a contract, express or implied
secured v l i S l ° f m° ^ ; that the Paymeat ¿ s noTbeen
Ind that+hF«umgf S ’ l®Y ° L plt dge uP°n reaI °r personal property;:
exiiti™ d ^ t d torwhich attachment is asked is an actual, bona fide,
oi+otvY deA due and owing from plaintiff to defendant; and that theattaehment is not sought nor the action prosecuted to hinder delav
undeftakinv nw-thedlt° r ° f the defendant.. Plaintiff must also file an
h ^ d d j gn Wltb OIie or more sureties, in a sum not less than onehundred dollars, and equal to the amount for which he demandsjudgment, condemned that plaintiff will pay all costs adjudged and
aU damages sustained by reason of the attachment if the same b e
specified1 ° r wltbout sufficient cause, not exceeding the amount

i

h,
M ortg ag es. Any interest in personal property, capabFe
^ei,ng transferred, may be mortgaged; but the mortgage is void
a® af f Y +k cr®,ditors and subequent purchasers and incumbrancers in
good faith and forvalue, unless possession of the property be delivered
Drooertve manv d hy Y e mortgagee or the mortgage provide that the
property may .emain m the possession of the mortgagor and be
ac°3“ PaA eA f y-Ah! affidavit of afi the parties thereto that the same is
made in good faith to secure the amount named therein, and without.
d®*,lgjP, A b!^ider’ d?iay> or defraud creditors, and be acknowledged
and hied. The mortgage must be acknowledged by the mortgagor
al aJ ° nV<iyAnce of .real Property is and be filed in the office of the
° f tbue Precinct where the mortgagor resides and of the prePx^C;tQ+w,reftbe propei ty 1S-, Within thirty days next preceding the
expiration of one year from the filing, a true copy of the mortgage, With
a verified statement of the interest of the mortgagee in the property
at the time the same is renewed, must be filed in the office wliere the
original was filed, and the hen is thereby extended another year. Chattel
mortgages are foreclosed m the same manner as mortgages and liens
upon real property, but a clause may be inserted in a mortgage author­
izing the marshal to execute the power of sale therein granted to th©
mortgagee.
Corporations. , Domestic Corporations. Three or more adult persons, bona fide residents of the district, may form a corporation for
the following purposes: To construct, own, and operate railroads,
tramways, street railways, wagon roads, flumes, and telegraph and
telephone lines m Alaska; to acquire, hold, and operate mines in
Alaska; to carry on the fishing industry in Alaska and the waters
adjacent and contiguous thereto: to construct and operate smelters,
electric and other power and lighting plants, docks, wharves, elevators
warehouses, and hotels in Alaska; and to carry on trade, transportation, agricmture, lumbering, and manufacturing in Alaska.
foreign Corporations. Every corporation or joint stock company
under the laws of the United States or any state or territory
shall before doing business within the district, file in the office of the
secretary of the district and: in the office of the clerk of the district •
court fqr the division wherein it intends to carry on business a duly
authenticated copy of its charter or articles of incorporation, and also
a statement verified by the oath of its president and secretary and
attested by a majority of its board of directors.
D eed s. A conveyance of lands, or of any estate or interest therein,
may be made by deedt- signed and sealed by the person from whom
the estate or interest is intended to pass, and acknowledged or proved
and recorded, without any other act or ceremony. A quit-claim deed
passes all the estate which jjhe grantor could convey by deed of bargain
ana sale. ^ o covenants are implied in any conveyance. The term
heirs, or other words of inheritance, are not necessary to create a

1144

BANKING AND^COMMERCIAL LAW S— ALASKA.

convey an estate in fee simple. Husband and wife may, by their
joint deed, convey the real estate of the wife, in like manner as she
might do by her separate deed if she were unmarried. A married
woman residing in the district, joining her husband in a deed, must
acknowledge that she executed such deed freely .and voluntarily.
When a married woman not residing in the district joins her husband
in conveying real estate situate in the district, the conveyance has the
same effect as if she were sole, and the acknowledgment or proof of the
execution may be made the same as if she were sole. bWithin the
district deeds must be executed in the presence of two witnesses, who
shall subscribe their names as such; and the person executing a deed
may acknowledge the execution before a judge, clerk of the district
court, notary public, or commissioner within the district, and the
officer taking the acknowledgment must indorse thereon a certificate
o f acknowledgment and the true date of making the same under his
hand.
Depositions, The testimony of a witness, in the district, may
be taken by deposition, in an action, at any time after the service of
the summons or the appearance of the defendant, and in a special
proceeding after a question of fact has arisen, when, 1, the witness is
a party to the action or proceeding, by the opposite party; 2, the
witness’s residence is more than one hundred miles from the place of
trial; 3, the witness is about to go more than one hundred miles beyond
the place of trial; 4, the witness is too infirm to attend the trial; or. 5,
the testimony is required upon a motion, or in any other case where
the oral examination of the witness is not required.
.
The testimony of a witness, out of the district, may be taken by depo­
sition, by commission issued, upon five days’ notice to the other party,
by the clerk of the court, or justice of the peace in a cause m his own
court, to a person agreed upon by the parties, or, if they do not agree,
to a judge, justice of the peace, notary public, or clerk of a court
selected by the officer issuing the commission.
.
,
The amount of the commissioner’s fees should be indorsed upon the
deposition.
Descent and Distribution, The real property of an intestate
descends as follows: 1. In equal shares to his or her children and to
the issue of any deceased child by right of representation'» and it '¡here
be no child of intestate living at the time of his or her death, to all his
or her other lineal descendants; and if all such descendants are in the
same degree of kindred to the intestate, they take equally ; otherwise,
by representation. 2. If intestate leave no lineal descendants, to his
wife; or if intestate be a married woman, to her husband; and if intes­
tate leave no wife nor husband, to his or her father. 3. If intestate
leave no lineal descendants, neither husband nor wife, norA father,
such real property descends in equal shares to his brothers and sisters,
and to the issue of any deceased brother or sister by right of representa­
tion; but if intestate leave a mother, she takes an equal share with such
brothers and sisters. 4. If intestate leave no lineal descendants,
neither husband nor wife, nor father, brother, nor sister, such real
property descends to his mother, to the exclusion of the issue ot
deceased brothers and sisters. 5. If intestate leave no lineal descend­
ants, neither husband nor wife, nor father, mother, brother, nor sister,
such real property descends to his next of kin in equal degree, except­
ing that when there are two or more collateral kindred in equal degree
but claiming through different ancestors^ those who claim through
the nearest ancestor are preferred. 6. If intestate J-eave one .or mor®
children, and the issue of one or more deceased children, and any of
such surviving children die under age without having been married,
all such real property that came to such deceased child by inheritance
from such intestate descends in equal shares to the other children of
such intestate and to the issue of any other children who have died,
by right of representation. But if all the other children of intestate
be dead, and any of them have left issue, such real property so inher­
ited by such deceased child descends to all the issue of such other
children of the intestate in equal shares, if they are in the same degree
of kindred to such deceased child; otherwise, they take by right ot
representation. 7. If intestate leave no lineal descendants or kindred,
such real propertv escheats to the United States.
Divorce, A marriage prohibited by law on account of consan­
guinity of parties, or on account of either having a former husband
or wife then living, is, if solemnized within the District, absolutely
void, and for any of such causes may be declared void from the begin­
ning’ at the action of either party.
1 The dissolution of the marriage contract may be declared at the
action of the injured party for either of the following causes: 1. Impotency existing at the time of the marriage and continuing to the
commencement of the action. 2. Adultery. 3. Conviction of felony.
4. Willful desertion for the period of two years. 5. Cruel and inhuman
treatment calculated to impair health or endanger life. 6. Habitual
gross drunkenness contracted since marriage and continuing tor one
year prior to the commencement of the action. Plaintiff must be an
inhabitant of the district at the commencement of the action and tor
two years prior thereto. Neither party may marry a third person
until the action is determined upon appeal or the time for taking an
appeaUhas expired.
Dower and Curtesy. The widow of every deceased person
is entitled to dower, or the use during her natural life of one-third part
in value of all the lands whereof her husband died seized of an estate
o f inheritances
When any man and his wife are seized in her right of any estate of
inheritance in lands, the husband, on the death of his wife, holds the
lands for his life as tenant thereof by the curtesy, although such fius~band and wife may not have had issue born alive.
Evidence. No person may be excluded as a witness on account of
being a party or interested in the event of an action or proceedings
having been convicted of a crime, or his opinions on matters of religious
belief. Persons of unsound mind and children under ten years ¡ ■ ¡ f l l
who appear incapable of receiving just impressions of the tact
respecting which they are examined or of relating them, truly may not
be witnesses. An attorney may not, witlmut his client s consent, be
examined as to communications made b y his client to him or his advice
thereon. A priest may not, without the consent of the person making
the confession, be examined as to any confession made to him m his
professional capacity,-in the course of discipline enjoined by the church
to which he belongs. A physician or surgeon may not, against the
objection of his patient, be examined, m a civil action, or proceeding,
as to information acquired in attending the patient winch was neces­
sary to enable him to prescribe or act.
Executions, {See Judgment and Execution.)
Executors and Administrators, When a will is proven letters
testamentary are issued to .the persons therein
a®,
or to such of them as give notice, of their acceptance of the trust
and are qualified. Administration is granted as follows
1. i o the
widow or next of kin, or both, in the discretion of the court. 2, to one


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or more of the principal creditors; or, 3, to any other person competent
and qualified whom the court may select. If deceased were a married
woman administration shall in any case be granted to the husband,
if qualified, and he apply therefor. Claims are paid in the following
order: 1. Funeral charges. 2. Taxes due the United States. 3.
Expenses of last sickness. 4. All other taxes. 5. Debts preferred
by the laws of the United States. 6. Debts which at the death of the
deceased were a lien upon his property, in the order of the priority
of the liens. 7. Debts due for wages earned within ninety days
immediately preceding death of decedent. 8. All other claims.
Exemptions.
1. Earnings of judgment debtor, for personal
services rendered within sixty days next preceding the levy of execu­
tion or attachment, when necessary for the use of his family supported
in whole or in part by his labor. 2. Books, pictures, and musical
instruments owned by any person, to the value of seventy-five dollars.
3 Necessary wearing apparel owned by any person for the use ot
himself or family, but watches or jewelry exceeding one hundred
dollars in value are not exempt 4. The tools, implements, apparatus,
team, vehicle, harness, or library necessary to enable any person to
carry on the trade, occupation, or profession by which such person
habitually earns his living, to the value of five hundred dpllars ; also
sufficient quantity of food to support such team, if any, for six months;
the word ‘ ‘ team ” being construed to include not more than one yoke
of oxen, or a span of horses or mules, or two reindeer, or six dogs.
5 The following property, if owned by the head of a family and in
actual use or kept for use by and for his family, or when being removed
from one habitation to another on a change of residence: le n sheep,
with one year’s fleece or the yarn or cloth manufactured therefrom,
two cows and five swine; household goods, furniture, and utensils to
the value of three hundred dollars; also food sufficient to support such
animals, if any, for six months, and provisions actually provided for
family use and necessary for the support of such person and family
for six months. 6. The seat or pew occupied by the head of a family
or his family in a place of public worship. 7. All property of any
public or municipal corporation. No article, or the proceeds derived
from its sale or exchange, is exempt from execution on a judgment
recovered for its price.
Homestead. The homestead of any family, or the proceeds thereof,
is exempt. Such homestead must be the actual abode of, and owned
by such family or some member thereof, and not exceed two thousand
five hundred dollars in value, nor exceed one hundred and sixty acres
in extent, if not located in a town or city laid off into blocks or lots;
or if located in any such town or city, one fourth of an acre, this
exemption does not apply to decrees for the foreclosure of any
mortgage properly executed; but if the owners of such homestead be
married, the mortgage must be executed by husband and wife.
Garnishment. (See Attachment.)
Interest, The legal raté of interest is eight per cent, but on con­
tracts interest at the rate of twelve per cent may be charged by express
agreement of the parties. If usurious interest has been received or
collected, the party paying the same, or his legal representatives, may,
bv action brought within two years, recover double the amount of
such interest. If it is ascertained in any action upon contract that
an unauthorized rate of interest has been contracted for, judgment
must be rendered against the defendant for the amount due, without
interest, and against the plaintiff for costs. If the rate contracted for
is eight per cent or less, the debtor may also agree to pay the taxes
upon the debt, credit, or mortgage.
Judgment and Execution. A judgment is docketed imme­
diately after entry. At any time thereafter while execution may
issue a certified transcript of the docket may be filed m the office
of the recorder of any recording district, and from the date of docket­
ing a judgment or transcript thereof the judgment is a lien upon au
the real property of the defendant within the recording district ot
districts where docketed, or which he may afterwards acquire therein
during the time an execution may issue. If no execution issues
within ten years the lien expires, but is renewed if afterwards leave
is given to issue execution and a transcript of the docket of the order
docketed with the recorder.
H p llS
, I
H L
Execution may issue at any time within five years from the entry
of the judgment, and thereafter on order of the court made on motion
of the party in whose favor the judgment was given. Such motion
must, be subscribed and verified as a complaint, and summons ifiust
be served upon the judgment debtor or his representatives, to which
he or they may demur or answer. The order made must be docketed
as a judgment. Execution may be against the property of the judg­
ment debtor, his person, or for the delivery of the possession of real
or personal property or such delivery with damages. Execution from
the district court is returnable within sixty days; from the commis­
sioner’s court within thirty days. Until a levy property is not affected
by the execution.
Licenses. (See Taxes.)
Liens, Every mechanic, artisan, machinist, builder, contractor,
lumber merchant, laborer, teamster, drayman, and l other person
performing labor upon or furnishing material of any kind to be used
in the construction, development, alteration, or repair, either in who
or in part, of any building, wharf, bridge, flume, ditch, mine, tunnel,
fence, machinery, or aqueduct, or any structure or superstructure,
has a lien upon the same for the work or labor done or material fur­
nished at the instance of the owner of the building or other improve­
ment or his agent; and every contractor, sub-contractor, architect,
builder, or other person having charge of the work, in whole or in
part, is, for this purpose, deemed the agent of the owner.
Limitations. Civil actions must be commenced within the fol­
lowing periods after the cause of action accrued: Within ten years
action for the recovery of real property, or the possession thereof; upon
a judgment or decree of any court of the United States, or of any
State or Territory within the United States; upon a sealed instrument.
Within six years— action upon a contract or liability, express or im­
plied, except judgment or sealed instrument; upon a liability created
by statute, other than a penalty or forfeiture; for waste or trespass
upon real property; for taking, detaining, or injuring personal prop­
erty, including an action for the specific recovery thereof. Within
three years— action against a marshal, coroner, ot constable, upon a
liability incurred by the doing of an act m his official capacity or in
virtue of his office, or by the omission of an official duty, including
the non-payment of money collected upon execution, but not an
action for an escape; action upon a statute for penalty or fojfeitur ,
where the action is given to the party aggrieved, or to such party and
the United States, except the statute prescribe a different limitat on:
Within two years— action for libel, slander, assault, batterysedu c
tion, false imprisonment, or for any injury to the person or rights oi
another not arising on contract ; upon a statute for a forfeiture o
penalty to the United States. Within one year— action against the

BANKING AND COMMERCIAL LAW S—ARIZONA.
marshal or other officer for the escape of a person arrested or impris­
oned on civil process; upon a statute for the penalty given in whole
or in part to the person who will prosecute, but if not commenced
within one year by private party may be within two years by the
United States.
M arried W o m e n .
The property and pecuniary rights of
every married woman at the time of marriage, or afterwards acquired
by gift, devise, or inheritance, or by her own labor, are not subject
to the debts or contracts of her husband, and she may manage, sell,
convey, or devise the same by will to the same extent and in the same
manner that her husband can property belonging to him. For civil
injuries damages may be recovered from a married woman alone,
and her husband is not responsible therefor. Contracts may be made
by a wife, and liabilities incurred, and the »ame inforced by or against
her to the same extent and in the same manner as if she were unmar­
ried. All laws which impose or recognize civil disabilities upon a wife
which do not exist as to the husband are repealed. Wife may record
list of her property and such list is prima facie evidence of her separate
ownership, and property not so registered is deemed prima facie the
property of the husband. Neither husband nor wife is liable for the
debts or liabilities of the other incurred before marriage. Husband
and wife may make conveyances and transfers and create liens between
themselves, and either may constitute the other his or her attorney
in fact. A woman becomes of age at twenty-one or upon being mar­
ried according to law.
M ortgages. Mortgages are executed, acknowledged, and recorded
in the same manner as deeds. No covenant is implied for the
payment of the sum intended to be secured. Record of assignment
is not notice to the mortgagor, his heirs, er personal representa­
tives. Mortgage may be discharged by entry in margin of record,
signed by mortgagee or his personal representative or assignee and
witnessed by the commissioner or deputy, or by certificate executed
and acknowledged as other conveyances. 9Foreclosure is by action of
an equitable nature in which a deficiency judgment may be had.
N otes an d B ills o f E x ch a n g e .
On all bills of exchange and
all negotiable promissory notes, orders, and drafts payable at a
future day certain within the district, grace is allowed; but grace is
not allowed on bills of exchange, notes, or drafts, payable at sight or
on demand.
R e co rd s, An unrecorded conveyance of real property is void
as against any subsequent innocent purchaser in good faith and for
a valuable consideration whose conveyance is first duly recorded.
Aeommissioner is ex-officio recorder of a recording district, the boundaries of which are fixed by the court. Conveyances of lands not in
any recording district are recorded with the clerk of that division of
the district court within the limits of which such lands are situated.
R ep le v in . The plaintiff, at any time after the commencement
of an action to recover the possession of personal property and before
judgment, may claim the immediate delivery of such property upon
filing an affidavit showing that he is the owner of the same or entitled
to the- possession thereof; that the property is unlawfully detained
by defendant; the alleged cause of detention; that the same has not
been taken for a tax assessment or fine, pursuant to a statute, or
seized under an execution or attachment against the property of the
plaintiff; or, if so seized, that it is exempt; and the actual value of
the property.
Service, (See Actions.)
S upplem entary P ro cee d in g s. (Nee Judgment and Execution.)
T axes, Every person or corporation prosecuting or attempting
to prosecute any of the following lines of business within the district
must first .apply for and obtain license so to do from the district court
or a subdivision thereof, and pay per annum for such license for the
respective lines of trade and business as follows: Salmon canneries,
four cents per case; salmon salteries, ten cents per barrel; fish oil
works, ten cents per barrel; fertilizer works, twenty cents per ton'
freight and passenger transportation lines, propelled by mechanical
power on inland waters and ocean and coastwise vessels doing local
business for hire, one dollar per ton on net tonnage; railroads, one
hundred dollars per mile; tramways, ten dollars per mile; saw-mills,
ten cents per thousand feet on lumber sawed; quartz mills, three dol­
lars per stamp; mercantile establishments and manufactories doing a
business of under four thousand dollars per annum., ten dollars, and
in proportion to the amount of business done to five hundred dollars
for establishments doing a business of one hundred thousand dollars
per annum; in other lines of trade and business the amount is fixed
for each and ranges from ten to five hundred dollars.
W ills. Every person of twenty-one years of age, of sound mind,
may dispose of all his or her property by will, saving a widow’ s dower
and a husband’ s rights as tenant by the curtesy. Will must be in
writing, signed by the testator, or under his direction, in his presence,
and attested by two or more competent witnesses subscribing their
names in the presence of the testator. A will by an unmarried per­
son is revoked by his subsequent marriage. Children or descendants
of children not named or provided for in the will.take, as if testator
had died intestate. A mariner at sea or soldier in military service
may dispose of his personal property as at common law. Proof of
nuncupative will must be made within six months, and the words or
their substance reduced to writing within thirty days after they are
spoken. A person owning property in, but not an inhabitant of,
the district may devise or bequeath the same according to the laws
of his domicile. If such will be probated without the district, copies
of the will and the probate thereof, certified by the clerk of the court
in which it was probated, with the seal of the court affixed thereto,
if there be a seal, together with a certificate of the chief judge'or presiding magistrate, that the certificate is in due form, and made by
the clerk or other person having the legal custody of the record, may
be recorded, admitted in evidence, or contested and annulled as if
executed and proved witnin the district.

1145

i ™
4? ’ ai.d Yuedfitor® ^ave been allowed,” is prima facie evidence,
under oath1 H i ^e^ore K | | defendant files written denial of any item

AeKnowledgments. Married women, men, and attorneys, in
a notary
fact, use this form: On this day, before me, .......... .
public in and for said county and state, personally appeared.. . .
known to me to be the person who subscribed to the foregoing inst'riiment, and acknowledged to me that the instrument was executed
tor the purpose and consideration therein expressed as the free act
and deed ot such corporation and was by him voluntarily executed.”
Certificate must show date of expiration of officer’s commission.
Instruments relating to property rights must be acknowledged before
recording.
-,
D
. ^Actions. _Distinction in forms between law and equity are abol­
ished. Pleadings are : Complaint and answer, and in some cases a
reply.
¡5;
A d m in istration o f E states. Lie in Probate Court. No public
administrator. Where person dies intestate letters shall issue.
A ffidavits. May be taken' from any officer authorized to take
acknowledgments, including judges, masters in chancery, and others.
A lien s. Unless rights are secured by treaty cannot hold land in
the territory, unless acquired prior to March 3, 1887; may acquire
by inheritance, or, in ordinary couise of justice in the collection of
debts, may acquire liens on real estate, may lend money and secure
same on real estate, but title so acquired must be sold within ten
years; may acquire patented mines and hold stock in domestic cor­
poration owning unpatented mines.
A p peals. Appeals are allowed from justice of peace, probate
court, to district court in certain cases and from district court to
supreme court where amount involved is $100 or over.
A rbitration . There are statutory provisions which are not
exclusive of the common law arbitration.
A rrest. Abolished in civil cases, debtor fraudulently removing
| property out of territory or concealing it may be prosecuted criminally.
A tta ch m e n t. Writ will issue on affidavit showing: 1. That
defendant is indebted to plaintiff upon a contract, express or implied
for the direct payment of money and that such contract was made or
is payable m this Territory, and that the payment of the same has not
been fully secured by mortgage, lien, or pledge of personal property
I or if originally so secured, that such security has, without any act of
plaintiff or the person to whom the security was given, become value­
[ less, and shall specify the character of the indebtedness, that the same
is due to the plaintiff over and above all legal Set-offs or counter-claims
and that demand has been made for the payment of amount due; or’
2. That defendant is indebted to plaintiff, stating amount and char­
acter of debt; that same is due and payable over and above all legal
set-offs and counter-claims, and that defendant is a non-resident of
this Territory or is a foreign corporation doing business in this Terri­
tory; or, 3. That an action is pending between the parties, and that
defendant is about to remove his property beyond the jurisdiction of the
the court to avoid payment of judgment; and, 4. That the attach­
ment is not sought for a wrongful or malicious purpose, and that the
action is not prosecuted to hinder or delay any creditor of defendant.
5. No such attachment shall issue until suit has been duly instituted^
but it may be issued in a proper case either at the commencement of
the suit or at any time during its progress. 6. The writ may issue,
plaintiff’s debt or demand be not due under specified facts of
] although
intent to defraud; no final judgment shall be rendered until such debt
or demand shall become due. Writ may issue at or after action began
upon plaintiff or some one in his behalf filing the affidavit, and upon
filing a bond with two sureties in an amount equal to amount sued for.
can be compelled to justify upon notice. When more than
i Sureties
one attachment is levied on same property writs take priority accord­
ing to time of levy. (See Liens, Garnishment.)
B an ks an d B a n k in g . Banks of discount and deposit (but not
of issue) may incorporate^under the statute relating to corporations
in general, which title vide. Banking business may be carried on
by individuals or firms, or by corporations organized for that purpose.
j
B a n k s— Savings and L o a n . May be incorporated to loan and in­
vest property. May hold lot and building in which business is carried
on to value of $100,000; such as may accumulate on good faith loans
and such personal property as may be required in transacting its bus­
iness. To purchase and convey evidence of debt except national, territoral, and municipal bonds must have a capital of $100,000. Married
i women and minors may transact business with such banks. Are
required to have license and are examined by The bank examiner.
Provisions are made for the contents of the charter.
B ills an d N otes. The negotiable instrument code adopted by the
American Bar Association'is in force Joint obligor may be released
without releasing others. (See Holdings.)
B on d s. Any standard surety company, organized under laws of
United States or of any state, may execute bonds in judicial proceed­
ings within the territory when they have complied with license laws..
(See Guaranty Companies.)
C hattel M ortg ag e. To be valued against others than the parties
thereto, chattel mortgage must set out the residence of the mortgagor
and the mortgagee, the rate of-interest to be paid and time and place of
payment of the debt secured, and be accompanied by the affidavit of
both mortgagor and mortgagee that the mortgage is bona fide and
| made without design to defraud or delay creditors. Immediate
I delivery of the mortgaged property must be made to the mortgagee and
the change of possession must be actual and continued, unless;,'the
| mortgage or a true copy thereof shall be forthwith deposited and filed
in the office of-the recorder of the county where the property shall
then be situated. Removal, sale, or other disposition of mortgaged
property without consent of mortgagee entitles mortgagee to imme­
diate possession of it, and such removal, transfer, or sale, or subsequent
encumbrance is felony. If mortgagee permits mortgaged property to
be removed to another county, he §hall within one month record his;
mortgage in such other county,
Chattel ihortgage may be fore­
SYNOPSIS OF THE LAWS OF ARIZONA
closed in justice court if amount of debt does not exceed $300 ; other'
wise in .district court. Mortgagee may obtain possession of property
RELATINS TO
on default and sell after notice which must be served on owner. Upon
stock of goods, wares, and merchandise with continued possession in
BANKING AND COMMERCIAL USAGES.
Mortgagor void. If copy is filed with recorder, original must be
acknowledged, and copy certified to by county recorder.
Prepared and Revised by E. M. S a n f o r d , Attorney at Law, Prescott.
C laim an d D e liv ery . (See Replevin.)
C ollaterals. No statutory provisions— common law prevails. ;
A cco u n ts. When stated draw interest when action is upon
itemized account and affidavit of party, his agent or attorney is
C om m u n ity P rop erty . (5ee Conveyances.)
attached, stating that such “ account is within affiant’s knowledge
C on d ition al Sales. Where title remains in vendor until purchase
just and true,, that it is due, and that all just and lawful offsets,
73


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1146

BANKING AND COMMERCIAL LAW S— ARIZONA.

price is paid, void as to persons not parties thereto, and persons
without notice, unless subscribed, acknowledged, and filed with
county recorder.
C on tracts. (See Bills and Notes.)
One or more obligors on a
joint or joint and several instrument may be released without releasing
the others, and may be sued separately under certain conditions with­
out releasing the others.
Married women may contract as if sole. C o n v e y a n ce s. Conveyances of estate in lands for term more than
one year shall be by instrument in writing subscribed by party making
it or his agent, duly authorized thereto by writing. A conveyance is
not effectual against creditors or bona fide purchasers unless recorded
in recorder’s office in county where land is situate. A conveyance
purporting to convey a greater estate than the grantor has passes only
the estate that he actually has. A general grant or devise passes the
fee unless expressly limited to a less estate. All deeds must be signed
b y both husband and wife except as to miners. Deeds must be signed
and must be acknowledged before some officer authorized to take
acknowledgement, and properly certified by him to entitle same to
registration. The use of the word “ grant” or “ convey implies the
following covenants and none other: 1. That previous to the time
of the execution of the conveyance the grantor has not conveyed the
same estate, or any right, title or interest therein, to any person other
than the grantee. 2. That such estate is at the time of the execution
of'such conveyance free from incumbrances. Married women ^seven­
teen years of age and upward may convey their own lands without being
joined by their husbands. (See Acknowledgment, Dower, Husband
and Wife, Homestead.)
C orp ora tion s in G en era l. Two or more persons may become in­
corporated for the transaction of any lawful business. Before com­
mencing any business, two or more persons, who need not be residents
of the territory, must adopt articles of incorporatmn which shall be
signed and acknowledged b y them, and be recorded m the office of the
county Tecorder of the county where the principal place of business is
to be and a certified copy in the office of the territorial auditor, lh e
articles of incorporation must contain: 1. The name of corporators,
and its principal place of transacting business. 2. The general nature
of the business proposed to be transacted. 3. The amount of capital
stock authorized and the times when and conditions upon which it is
to be paid in. 4. The time of the commencement and termination
of the corporation. 5. B y what officers or persons the affairs of the
corporation are to be conducted, and the times at which they are to
be elected. 6. The highest amount of indebtedness or liability to
which the corporation is at any time to subject itself. 7. Whether
private property is to be exempt from corporate debts. Unless so
exempted stockholders are liable for the debts of the corporation in
the proportion which their stock bears to the whole capital stock.
Must be published for six days in some newspaper in the county where
the principal business is located. Proof of publication must be filed
with the auditor. Corporations to endure for twenty-five years.
Corporation must file in office of territorial auditor an appointment
of agent who is a bona fide resident of this territory for three years
prior thereto, on whom all notices and process, includmg summons,
may be served and constitutes personal service. Charges for incorpor­
ation : Recorder's fees, 20 cents folio. Recorder’ s fees, certified copy,
20 cents folio. Recorder’ s fees certificate to copy, 75 cents, .terri­
torial auditor’ s fees, filing cost copy, $10. Printers’ fees per inch,'publishing articles six days, 80 cents. Territorial auditor s lees, filing
proof publishing $3.00. Territorial auditor’s fees, filing appointment
of agent, $3.00. Where charter provides assessments may be levied on
shares to par Value (1907).
C o rp o ra tio n s, F o re ig n . Before it can transact business it must
file certified copy of Articles with territorial auditor and county re­
corder in county of principal place of business, also an appointment of
agent upon whom a service personal to the corporation may be made.
C o r p o ra tio n s, I n s u r a n c e . May be organized under provision
peculiarly applicable to insurance companies.
C o r p o r a tio n s , R a ilr o a d . Are organized under a statute especially
providing for them.
C o r p o r a tio n s , S av in g s an d R o a n . (See Banks and -^Bankingi)
C o r p o r a tio n S to c k , T ra n s fe r o f. Transfer of stock shall not be
valid, except as between the parties thereto, until the same is regularly
entered upon the books of the company, so as to show the names of the
person by whom and to whom the transfer is made, the number of their
designation of the shares, and the date of the transfer.
Costs. Discretionary to taxes on motion; plaintiffs who are nonresidents, or those who own no property upon which execution may he
levied are required to give security for, within ten days after order made;
bonds’for, must authorize j udgment to be entered against sureties.
C o u rts. Are the Supreme Court of the Territory, the district court
of the five several districts, the district court for each County, the
probate court for each County, justices of the peace. The district court
of the several counties is a court ol general jurisdiction, both civil and
criminal. It has both original and appellate jurisdiction. Its original
jurisdiction extends to all civil cases where the amount involved exceeds
$100 exclusive of interest, and in all cases involving the title to or possession of real estate. Justice courts have general jurisdiction when amount
in controversy does not exceed $300, except when title to real estate is
involved. (See Jurisdiction.)
C r e d ito rs’ B ills . No statutory provisions.
D a y s o f G ra ce . None.
D e p o s itio n s . Depositions maybe taken on commission or by stip­
ulation before any officer authorized to take acknowledgements of
deeds. The officer shall certify that the answers of the witness were
signed and sworn to before him, and shall seal them up m an envelope,
together with the commission and interrogatories and cross-interroga­
tories if any, and shall write his name across the seal and indorse on the
envelope the names of the parties to the suit, and o f the witnesses, and
shall direct the package to the clerk of the court or justice of the peace,
as the case may be. Depositions may be returned to the court either by
mail or by hand. I f sent by mail, the postmaster or his deputy shall in ­
dorse thereon that he received them *from the hands of the officer before
whom they were taken. The deposition of a party to action may be taken
and his statements may be controverted.
D e s c e n t and D is t r ib u t io n . (See Savings Banks). The law of com­
munity property prevails. The separate estate of an intestate, when he or
she shall die leaving surviving no husband or wife,shall descend as provided.
When an intestate leaves surviving a wife or husband another method is
provided. Children o f the intestate’ s brothers, sisters, uncles and aunts,
take per capita. A ll property belonging to the community estate of the
husband and wife shall go to the survivor, if the deceased spouse have no
„hild or children; if the deceased have a child or children, his or her suryiviug spouse will take one half, and tlie other half goes to such child or


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children. The community property always passes charged with the debts
against it. Intermarriage between man and woman to whom a child or
children had before been born, and recognition by the father of such
child or children legitimizes the child or children. Bastards inherit from
the mother and transmit estates as if legitimate. The statute provides for
the adoption of heirs. (See Bower, Husband and Wife, Homesteads
D iv o r c e . Plaintiff must be a bona fide resident of Territory for one
year, and in county for six months. Grounds: Adultery; physical mcompetency at marriage and continued to institution of suit; conviction
of felony and sentence thereon to imprisonment in prison, providing,
judgment of divorce shall not be entered until one year after conviction*
and providing the imprisoned one has not been convicted on the testi­
mony of the plaintiff; willful desertion of two years; extreme physical
cruelty; husband’ s neglect to provide for wife for two years, having the
ability so to do, or because he is idle or profligate ; when, prior to marriage,
either party shall have been convicted of a felony and the conviction is*
at marriage, unknown to the other; and, in favor of husband, when wife
is with child by another at marriage, and thè fact is then unknown to hus­
band Alimony and counsel fees may be allowed■pendente lite; corrobo­
rating eviden ce must be produced. Division of community property m ay
be allowed. Divorce from bed and board may be granted.
D ow er. Dower is abolished. See Prance vs. Conner, 16 Supreme Ct.
E v id e n ce . The common law rules have not been codified. Parties
may be examined and the other side not concluded thereby. Statutes of
other states and territories purporting to be printed under authority may
be read. No one is incompetent to testify because of religious belief,
Certified copies of all records in territory, counted by law, may be read.
Certified copies ox records of all notaries may be read. All instruments
competent to be recorded may be read. Court may order inspection or
copy of documents.
E x e c u tio n s . Upon a judgment of district court, executions may be
issued to any county. Lien of dates from levy, and if on real property,
the description is endorsed on execution and filed with C9unty recorder.
A range levy may be made upon all of stock under a certain brand. (See
Judgment, Liens.) Proceedings supplemental to execution — when re­
turned unsatisfied, creditor is entitled to an order requiring debtor to
answer concerning his property, but not elsewhere than in the county of
his residence. Third parties may, upon affidavit, be required to surren­
der property. Court or judge may order suit brought to determine
the denial of owning or of having property.
E x e m p t io n s . Every head of a family is entitled to homestead not
exceeding $2,500 in value, and every family $500 worth of personal prop­
erty. The head of family allowed one-half i earnings during thirty days
next before service of garnishment on proof same is necessary for sup­
port of family. (1907.) Officer levying writ of attachment or execution
must notify debtor to select exempted property. (See Homestead, Liens.)
F ra u d s an d F ra u d u le n t C o n v e y a n ce s . Agreements must be in
writing and signed by the parties to be charged: 1. By an executor or
ad m in istrator to answer for the debt of his testator or intestate out of his
own estate. 2. By a person to answer for the debt, default or miscarriage
of another. 3. To charge any person upon an agreement made upon con­
sideration of marriage. 4. For sale of real estate or lease thereof for a
term longer than one year. 5. Those which are not to be performed
within the space of one year after the making thereof. Every gift, convey­
ance, or assignment, or transfer, or charge upon any estate, real or personal;
any suit commenced on decree, judgment, or execution suffered or obtained,
or any bond or other writing given with intent to delay, hinder, or defraud
creditors,, purchasers or other persons, shall to such persons be void. All
bargains sales, and other conveyances of lands, tenements, and heredita­
ments, deeds of settlement of marriage, deeds of trust, and mortgages,
are void as to creditors and subsequent purchasers, without notice, unless
properly recorded. The creditor must be a judgment creditor, and
notice must be prior to date of judgment lien. A judgment creditor may
be an innocent purchaser. Every gift, conveyance, assignment, transfer
or charge made by a debtor which is not upon consideration deemed valu­
able in law shall be void as to prior creditors, if debtor had not then other
property in the Territory sufficient to pay all his indebtedness. Not on
that account, however, void as to subsequent creditors. No gift of any
goods and chattels shall be valid unless duly acknowledged, or proven and
recorded, or by will, or unless actual possession shall have come to and re­
mained with the donor or some one claiming under him. Fraudulent
intent is a question of fact and not of law. Conveyance shall not be ad­
judged fraudulent merely because not for valuable consideration. If any
person shall do or transact business as a merchant or trader, with the ad­
dition of the words agent, factor, company, or & Co., or words of like
significance or import, and shall fail to disclose the name of his principal,
or partner, or other person who may be interested in such business by a
sign in letters easy to read, placed conspicuously at the place where such
business is transacted, or if any person shall transact business in his own
name without any such addition, all the property, stock, money and
choses in action used or acquired in such business except such property
as may be exempt from execution, shall, as to the creditors of any such
person, be liable for his debts, and be, in all respects, treated in favor of
his creditors as his property. Criminal prosecution for fraud is provided.
(See Conditional Sale.)
G a r n is h m e n t. Writ may issue: 1. Where writ of attachment has
issued 2 Upon affidavit that the debt is just due, and unpaid, and that
defendant has not, within affiant’s knowledge, property in his possession
subject to execution sufficient to satisfy such debt, and that the writ is
not sued out to injure either the defendant or garnishee. 3. Upon judg­
ment when affiant makes affidavit that the defendant has not, within his
knowledge, property in his possession within this Territory sufficient
to satisfy said judgment. Proceedings under subdivision 2 requires a
bond in double the amount of the debt, conditioned that plaintiff will
prosecute the suit to effect, and pay all damages and costs that may be
adjudged against him for wrongfully suing out the garnishment. The
proceedings are docketed and judgment rendered as if iff an independent
proceeding. (See Attachment.)
H o lid a y s . Legal holidays are January 1, February 22, July 4,
Thanksgiving, May 30, December 25, every Sunday, and general Terri­
torial election day, or any special election day that may be called by
the governor, and any day appointed by the president or governor. Any
promissory note, bank check, bill of exchange, acceptance, or other
negotiable instrument, made payable at any future period, which falls due
on any of these days mentioned, shall be considered due and collect­
ible on the day following: and if January 1, February 22, July 4, Decem­
ber 25 or May 80 shall fall upon Sunday, then the Monday following shall
be considered as a legal holiday. Writs of injunctions, attachments,
replevin, and prohibition may be issued and served on. If a statutory
holiday falls on Sunday the next day is not a holiday.
H o m e s t e a d . Deed to, must be signed by husband and wife. (See
Exemptions.)

BANKING AND COMMERCIAL L A W S —ARKANSAS.
H u sban d a n d W if e . All property, both real and personal, of
the husband or wife, owned or claimed by him or her before mar­
riage, and that acquired afterward by gift, devise, or descent, as also
the increase, rents, issues, and profits of the same, shall he his or her
separate property. The earning and accumulations of the wife and her
minor children in her custody while she has lived or may live separate
and apart from her husband, shall also be the separate property of the
wife. All property acquired by either husband or wife during the mar­
riage, except that which is acquired by gift, devise, or descent, or
earned by the wife and her minor children while she has lived or may
live separate and apart irom her husband, shall be deemed the common
property of the husband and wife, and during the coverture may be dis­
posed of by the husband only. Married women o f the age of twentyone years and upwards shall have the same legal rights as men of the
age of twenty-one years and upwards, except the right of suffrage and of
holding office, and except the right to make contracts binding the com­
mon property of the husband and wife; and shall be subject to the same
legal liabilities; shall not be so construed as to prohibit women from
voting at school elections or holding office as school trustees or notary
public. (See Bower, Conveyance.')
I n ju n c t io n . Is issued, where party is entitled to relief and restraint,
is required of some prejudicial act; where, pending litigation, an act is done
which tends to render judgment ineffectual, and when applicant is entitled
under principles of equity. Under certain conditions may be granted
ex parte at chambers or by consent. Bond may be fixed by judge and
approved by clerk.
In s u r a n c e . Insurance companies must give bond in sum of $15,000
for security of policy holders, or in lieu thereof, $15,000 of county or terri­
torial interest bearing bonds must be deposited with territorial treasurer.
Acts 1895, p. 35.
In terest. May contract, in writing, for any rate of. No usury laws.
When no express contract, on bond, bill, note, or instrument of writing,
or judgment, for money lent, or due on settlement of accounts from date
of ascertained balance, and money received for use of another, interest is
computed at 6 per cent per annum.
J u d g m e n ts. Judgments of district courts become a lien upon all
real estate of judgment debtor in the county as soon as entered and
docketed. Upon filing with the clerk of the district court a transcript of
.judgment from justice court or of district court of another county, the
same becomes a lien on all real estate of judgment debtor in the county.
No execution can be issued on any judgment after the expiration of five
years from the date of its rendition and entry, unless such judgment be
revived by scire facias or action for debt be brought thereon within such
five years.
J u d ic ia l B on d s. (See Bonds.)
L ev y . (See Executions.)
L ice n se s. For gambling prohibited.
L iens. All persons who may labor or furnish materials in the con­
struction or repairing o f any building, superstructure, canals, dams, mines,
or other improvement, or cufs cordwood, shall have a lien on the same, and
in case of buildings and superstructures, on the lot of land wheron the
same is situate and connected therewith. To fix and secure the lien,
the person performing labor or furnishing material must, within sixty
days, after the completion of such labor or the furnishing of materials,
file his contract in the office of the county recorder where the property
is situate. If the contract be verbal, a duplicate’ copy o f the bill of
particulars should be made, under oath, and one delivered to the recorder
and filed for record and the other furnished the party pwing the debt,
or his agent. Laborers’ and like liens are preferred fo all subsequent liens,
mortgages, and incumbrances, and such as lien claimant had no notice.
Suit to foreclose such liens must be commenced within six months after
filing the same in the recorder’s office. In case o f the levy of writ of
attachment or execution, clerks, laborers, and employes of debtors have a
preference claim for wages for services performed sixty days before levy
of writ, not exceeding $200, upon filing notice of claim unpaid with
creditor, debtor, and officer executing writ. Proprietors of hotels, board­
ing houses, and lodging houses have special lien on all property or bag­
gage deposited with them by guests for price of guests’ entertainment.
Agister and liverymen have lien by statute. (See Judgment, Mortgaged)
L im ita tio n s. To recover realty against person in peaceable and
adverse possession under color of title, three years; against such posses­
sion where person pays taxes and has deed recorded, five years, otherwise
ten years; to recover lots in city or village against person having recorded
deed, and pays taxes, five years; where party in possession claims by right
of possession only, two years. Personal Actions — One year: Personal
injuries, malicious prosecution, false imprisonment, libel, slander, seduc­
tion, breach of promise. Two years: Trespass to property, detention or
conversion of personal property to own use, taking and carrying away
goods and chattels; and injuries to person where death ensues, to accrue
from date of death. Three years: Actions for debt not in writing; on
stated or open accounts other than mutual between merchants or their
factors and agents; all accounts, except as between merchants and factors
and agents, limitations run from date of each item of delivery. Four
years: For penalties or damages on any bond to convey real estate;
between partners for settlement of partnership accounts; on mutual or
current accounts between merchants, their factors or agents, to accrue
from cessation o f dealings; upon judgment or instrument without the Ter­
ritory; debt evidenced by writing within the Territory; bonds of executors,
administrators, or guardian, after death, removal, etc.; specific perform­
ance; to contest will after discovery of fraud; and where no provision
is otherwise made. Five years: On domestic judgment where execution
has been issued within one year after rendition.
M ines unpatented are real estate for the purpose of inheritance and
conveyance. Location requires seven monuments, three at each end,
and one at discovery, in which notice is to be placed on discovery; title
work consisting o f a shaft 4 x 6 x 10 feet deep, or its equivalent in an
open cut so that removal in place is discovered 10 feet from the surface
must be done and notice recorded within three months, and annual assess­
ment work amounting to $ 100, maintained each year thereafter, until
patent is ordered.
M inors. (See Savings Banks.)
M ortg ag es. Mortgage may contain power of sale. Whether it does
or not, mortgage may be foreclosed by suit in district court. Failure of
mortgagee to lawfully release a satisfied mortgage for seven days after de­
mand for the release, subjects him to liability for $100 and actual
damages. Mortgages on real estate are executed, acknowledged, and re­
corded as conveyances o f real estate. (See Conveyances, Chattel Mortgage,
Acknowledgments, Redemption.)
N otary P u b lic . In all certificates and acknowledgments the date
of expiration of commission must be stated, as “ commission expires----- ”
No certificate of holding office, etc., is required when notary acts in foreign
state.or country.


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1147

N otes an d B ills o f E x ch a n g e . (See Bills and Notes.)
P a r tn e rs h ip s using fictitious name may file certificate showing
names of partners with county recorders. Foreign partnerships may do so.
P ow ers o f A tt o r n e y . No special statutory provisions relative to.
l o confess judgment must be executed subsequent to maturity of debt
confessed, and must be acknowledged. To convey lands or release mort­
gages should be acknowledged as deeds, and recorded.
P ro b a te L a w . (See Savings Banks and Administration o f Estates.)
P rotest. Liability of drawer or indorser of bill or note may be fixed
Dy regular protest and notice, etc., according to the usages and custom o f
merchants. (Soe Bills and Notes.)
R e c o r d s . The district and probate courts of each county are courts1
of record. The recorder’s office in each county relates to titles of real
estate and personal property, and probably record instrument therein is
notice. The minutes of the Sanitary Live Stock Board is notice to all
brands and marks of live stock.
. -^bpdenaptioxis. From sheriff or judicial sales, six months, and if
debtors or successors on interest any lien holder may redeem within
rnree months thereafter by serving and filing statutory notice, by serving
notice m five days after end of said six months. The same rule anplies to
foreclosure of mortgages and trust deeds whether by court or under
powers of sale.
,
R e p le v in . Is denominated “ claim and delivery” for possession! of
specific personal property which has not been seized under any process
execution or attachment against the property of the plaintiff.
S ales. The “ uniform sales law ” is in force.
...
. ^-uumon or omission or seals or scrolls to instruments oi
writing m no way affect the force and,validity of the instrument. Instru­
ments executed by corporations must have a corporate seal attached.
S ervice. All summons upon persons shall be personal, or by leaving
a copy with copy of complaint at the usual place, of residence of defendant, with a member of his family over the age of sixteen years; against
incorporated city, or town, or village; upon mayor, clerk, secretary or
treasurer; against incorporation or joint stock association, upon president
secretary, or treasurer, director or local agent representing company, or
by leaving a copy of summons and complaint at the principal office
during office hours; upon any railroad, telegraph, or express company,
or any agent of such company who resides in or may be found in the
county where_ suit is brought; upon domestic corporation by serving on
statutory resident agent, and where there is no officer upon whom
service can be made in the Territory, service may be had by delivering
duplicate cop'es of summons and complaint to the secretary of the
Territory, and upon foreign corporation by delivery to statutory agent.
Suits. (See Actions.)
T ax es. Aside from those levied by legislative enactment for specific
purposes, as for the construction and maintenance of public institutions
etc., Territorial taxes are levied by the Territorial Board of Equalization;
county taxes by the boards of supervisors of the several counties, and city
taxes by the common councils of the various cities. Railroads are valued
for the purpose of taxation by the Territorial Board of Equalization.
Other property is valued by county assessors. The assessing of value
begins in February of each year. Taxes are levied on the fourth
Monday of August in each year. The lien attaches on the first Monday of
March in each year. Taxes become due not later than the third Monday
m September, and become delinquent if not paid on the third Monday of
December. The penalty for delinquency is 5 ner cent. Within 60 days
after delinquency action may be commenced in district court to foreclose
delinquent real estate tax liens, and property sold as under execution.
Personal property tax is collected by distress warrant. Taxes after de­
linquency draw interest at one per cent, per month after action com­
menced to foreclose tax lien penalty of twenty-five per cent, is added.
There is doubt about the right to redeem from tax sales.
W a re h o u s e s. Personal property in, may be sold for unpaid charges.
T ra n sfer o f C o r p o r a tio n S tocks. (See Corporations.)
W ills. Wills must be in writing, signed by the testator, or by someone
for him, in his presence and by his direction, and must be attested by two
or more credible witnesses above the age of fourteen years, in the pres­
ence of each other and the testator. When the will is wholly written by
the testator, no witnesses are necessary. Nun-cupative wills may be made
when property willed does not exceed in value $50, unless it be proved
by three credible witnesses that the testator called on some person to
take notice and bear testimony that such is his will, and that the testi­
mony, or the substance thereof, was committed to writing within six
days after the making of such will ; in such case the amount willed is
not limited. Wills are revocable by subsequent will, codicil, or declara­
tion in writing, executed with like formalities as in execution of will,
or by testator destroying, canceling, or obliterating the same, or causing
it to be done in his presence, or by subsequent marriage, and no provision
is made for wife. Foreign wills, the probate whereof is duly authenti­
cated, may be probated' here. Contests of wills can not be initiated
after one year from daté of probating.

SYNOPSIS OF THE LAWS OF ARKANSAS
RELATING TO

BANKING AND COMMERCIAL USAGES.
Revised b y Messrs. M o o r e , S m it h & M o o r e , Attorneys at Law, Little
Rock. (See Cârd in Attorneys' List.)
A c c o u n ts verified by the plaintiff as just and correct prove themselves
in suits thereon unless denied under oath.
A c k n ow led g m en ts may be taken within the State before the
supreme or circuit court, or a judge thereof, or clerk of any court of record,
or a justice of the peace or notary public; elsewhere in the United States
before any court having a seal, or clerk of such court, notary public,
mayor having a seal, or commissioner of Arkansas; without the United
States before any court having a seal, mayor of a city having a seal, United
States consul, or any officer authorized by the laws of such country to
probate conveyances of real estate, provided he has a seal.
A c t io n s . Suits are prosecuted under a reformed code of civil proced­
ure differing from the New York code chiefly in maintaining the distinc­
tion between law and equity.

1148

BANKING AND COMMERCIAL LAWS—ARKANSAS.

Adm inistration o f E states. Executors and administrators must
be residents o f the State and must give bond in double the value of the
property. Foreign executors and administrators can maintain actions in
our courts. Claims are paid in the following order: First, funeral ex­
penses; second, expenses of last illness; third, judgments which are liens
on the lands of the deceased; fourth, demands presented within six
months; fifth, demands presented within one year. All demands not pre­
sented in one year are barred. Demands must be authenticated by an
affidavit to the effect that nothing has been paid or delivered toward their
satisfaction except what is credited thereon, and that the sum demanded,
naming it, is justly due. Demands must first be presented to the executor
or administrator, and if disallowed by him may be presented to the pro­
bate court, or sued upon in any court of competent jurisdiction.
A ffidavits in this State are made before a judge, justice of the peace,
notary public, or clerk of the court: without the State before a judge,
mayor, notsry public, justice of the peace or commissioner for this State.
A lien s may hold and transmit property in all respects as residents.
A r b it r a t io n . Controversies may be submitted to arbitration, and the
award of the arbitrators is filed in court, and is subject to review on equi­
table principles only, and not for matters of form. When not set aside
they are entered of record and become the judgment or decree of the court.
A r r e s t . Defendant's may be arrested for debt only when the plaintiff
flies an affidavit charging that the debt was fraudulently contracted; that it
is just, giving its amount, and that he believes that the defendant is about
to depart from the State, and, with intent to defraud his creditors, has
concealed or removed from the State his property or so much thereof that
the process of the court after judgment can not be executed; or that the
defendant has money or securities m the possession of himself or of others
for his use, and is about to depart from the State not leaving sufficient
property therein to satisfy the pl'aintifTs claim. Bond must be given
conditioned to pay the defendant all damages that he may sustain if
wrongfully arrested.
A ssignm ents fo r the Benefit of Creditors may be general or
partial, with or without preferences, and where all the debtor’s property
is conveyed, may exact releases as a condition of preference. The as­
signee, must file an inventory of the property assigned and give a bond
conditioned that he will execute the trust confided to him, sell the prop­
erty to the best advantage and pay the proceeds to the creditors men­
tioned in the assignment according to its terms, and faithfully perform
his duties according to law. He must sell within 120 days all property
except the choses in action, which he is required to collect, the sale to
be at public auction after thirty days’ notice. Assignments are vitiated
by the fraud of the assignor alone, or by any provision varying from
the requirements of the statute. Attacks upon them are made by Pro­
ceedings in equity, and, if they are set aside, the proceeds are distributed
equally among all the creditors. Assignees close up their accounts
under the direction of the chancery courts. Corporations can not prefer
creditors.
A ttachm ents may be sued out where the defendant is a foreign
corporation or non resident, or has been absent from the State four
months, or has left the State with intent to defraud his creditors, or has
left the county o f his residence to avoid the service of summons, or con­
ceals himself so that summons caD not be served on him, or is'about to
remove or has removed a material part oi his property out of the State,
not leaving enough to satisfy his creditors, or has sold, conveyed or
otherwise disposed of his property, or suffered it to be sold with the fraud­
ulent intent to cheat, hinder or delay his creditors, or is about so to do.
They are obtained by filing an affaaavit stating the nature o f the plain­
tiff’s claim, that it is just, its amount and the existence o f the ground, and
by giving bond conditioned to pay all damages the defendant may sustain
if the attachment is wrongfully sued out. The defendant is allowed to
traverse the attachment, and the affidavit and traverse then stand as
pleadings upon which the issue is tried. If the attachment is dissolved,
the defendant may have an assessment of damages upon the bond in the
same suit. Persons claiming the attached property may interplead in
the same action. Attachments may be sued out before the debt is due
where the defendant has sold, conveyed, or otherwise disposed of his
property, or permitted it to be sold with the fraudulent intent to
cheat, hinder or delay his creditors, or is about so to do, or is about to
remove his property, or a material part thereof, out of the State with the
intent of cheating, hindering or delaying his creditors.
B a n k s . Banking may be carried on by individuals or by corporations
organized under the general incorporation law of the State, or by national
banks. The State laws prescribe no special regulations for banking.
Officers and employes of banks are criminally liable for making false re­
ports, and for receiving deposits knowing bank to be insolvent.
P ills of E x c h a n g e a n d P r o m is s o r y N o te s. No person can be
charged as an acceptor of any bill o f exchange unless his acceptance shall
be in writing. If the acceptance is written on another paper than the
bill, it shall not bind the acceptor except in favor of the person to whom
such acceptance shall have been shown; and who, on the faith thereof,
shall have received the bill for a valuable consideration. Every holder
o f a bill presenting it for acceptance may require an acceptance on the
bill; otherwise the bill can be protested for non-acceptance. Notwith­
standing the above provisions any one promising to accept a bill is liableto any person to whom a promise to accept it may have been made; and
who, on the faith of the promise, has drawn and negotiated the bill. Any
person on whom a bill is drawn, and to whom the same may be delivered
for acceptance, who shall destroy it or refuse within twenty-four hours
or such time as the holder may allow to return the bill accepted .or not
accepted to the holder, shall be deemed.to have accepted the same. The
following are the holidays: Sunday, Christmas, Fourth day of July,
Washington’s Birthday, Lee’s Birthday, January 19th, and the first Satur­
day of March each year, Arbor Day and Thanksgiving day. When the bills
become due on any of these days, they are payable the next day preced­
ing. But the holders need not give the notice of dishonor until the next
day after such holiday. The following damages are allowed where a bill
is protested for non-acceptance or non-payment: If the bill is drawn on
any place in this State, two per cent; if payable in the States of Alabama,
Louisiana, Mississippi, Tennessee, Kentucky, Ohio, Indiana, Illinois, or
Missouri, or any point on the Ohio River, 4 per cent; if drawn on any
other place in the United States, 5 per cent; if beyond the limits of the
United States, 10 per cent. If the bill be drawn by any person at any
place within this State, at the rate o f 2 per cent; if drawn by any person
at any place without this State, but within the limits of the United States,
6 per cent; if drawn by any person without the limits of the United
States, 10 per cent. The holder of any bill protested for non-payment or
non-acceptance is entitled to costs of protest and interest at the rate of
10 per cent per annum on the amount of the bill from date of protest.
The term Bill o f Exchange includes ail drafts or orders drawn by one
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


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consideration they were executed. This applies to patent rights and
rights to use any patented thing of any kind. But this provision does not
apply to merchants and dealers who sell patented things in the usual
course of business. All blank assignments are taken to have been made
on such day as shall be most to the advantage of the defendant. In other
respects the general rules of commercial law apply. "Days of grace fo l­
low law merchant.
B ills o f Lading. (See Warehouse Receipts and Bills o f Lading.)
Collaterals are governed by the law merchant.
C o n tr a c ts 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
as 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,”
makes the acknowledgment and record void; but statutes have, been
passed from time to time curing defective acknowledgments previously
made. " Such a statute was passed in 1907.
Corporations are organized only under general incorporation laws.
Business corporations must consist of not less than three persons who
shall 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 cer­
tificate signed in a like manner and sworn to by the president and a
majority of the directors, setting forth the purpose of the corporation, the
amount of its capital stock, the amount actually paid in, the names of its
stockholders and 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
in which the corporation is to transact business and then with the clerk’s
endorsemeut 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
has 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
the 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
denominations of $25 or $100. All corporations, foreign and domestic are
subject to an annual franchise tax as foliows: Every corporation having
an authorized capital of not over $25,030, $10; between $25,000 and
$100,000, $25; between $LC0,000 and $500,000, $50; over $500,000, $100.
Foreign Corporations 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 must also file a certified copy of
its charter together with a statement of its assets and liabilities, and the
amount of its capital employed in this state 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. It must also
file a resolution of its board of directors consenting that service of pro­
cess on any of its agents or on the secretary of State shall be a good
service. If it sues in the federal court or removes a suit there without
consent of its adversary, its right to do business is revoked. Doing
business here without compliance with the law subjects the corporation
to a fine of not less than $1,000. 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. No foreign corporation can
sue on any contract made in this State until these provisions are complied
with.
C ou rts. The supreme court is held at Little Rock and has jurisdic­
tion of appeals from the circuit and chancery courts. In some counties
separate courts of chancery have been established, but in the greater
number the circuit courts exercise common law and chancery jurisdic­
tion. The estates of deceased persons are entrusted exclusively to the
probate courts, with right of appeal to the circuit and thence to the
supreme court. Claims against counties are heard by the county court,
as also matters touching paupers and the like. The justices’ courts have
jurisdiction of matters of contract not exceeding $300, and matters of tort
not exceeding $100. Two terms of the circuit and chancery court and
four of the county and probate courts are held in each county per year.
Bays of Grace (See Bills of Exchange, Promissory Notes.) Deeds. (See Acknowledgments and Conveyances.)
D e p o s itio n s may be taken in the State before any judge or clerk of
a court of record, justice of the peace,mayor, or notary public; out of the
State before a commissioner for this State, judge, justice of the peace,
mayor, notary public or person commissioned by the court or by consent
of parties.
Descents and Distributions. Property descends to-children and
their descendants in equal parts; if no children, then to father, then to
mother, then to brothers and sisters and their descendants in equal parts,
and in default of such to the nearest lineal ancestor or his descendants
in equal partsper stirpes. Illegii.ima>e children inherit and transmit an
inheritance from the mother in the same manner as if legitimate. If the
parents of illegitimate children subsequently intermai ry and the father
recognizes them as his, they shall be deemed legitimate. In default of
heirs the whole property goes to husband or wife, and in their default to
the State. If the estate is ancestral it goes to the blood of the ancestor
from whom it was derived. Relations of the half-blood inherit equally.
Heirs take as tenants in common.
D iv o r c e s are granted for, first, impotency; second, desertion for one
year without cause; third, another wife or husband living at the time of
the 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:
sixth, adultery. Proceedings must, be had in the county where the plaintiff
resides and the plaintiff must have resided in the State one year before
the commencement of the action, and must show that the cause of divorce

BANKING AND COMMERCIAL LAW S—ARKANSAS.
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
cause of divorce occurred within five years before the beginning of the
suit. Claims for alimony may be asserted either in the suit for divorce or
by a separate action. Upon a divorce each party is required to surrender
to the other all property acquired from the other, and if the wife procures
the divorce she takes one-third o f the husband’s real and personal prop­
erty.
D o w e r . Where there are children the wife tabes one-third o f 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. Where
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 x e cu tio n s from the circuit court are returnable in sixty days1those
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
levying on 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 t io 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, n or'
to he 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 o f 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 mav
do so.
F r a u d . The English statute of fraudulent conveyances has been
re-enacted in this State.
Garnishments may be sued out pending suit upon giving bond in
double the amount garnished, or after judgment without bond.
Holidays. {See Bills o f Exchange and Promissory Notes.)
Husband and W ife . {See Married Women.)
I n ju n c t io 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.
I n s o lv e n c y . Any insolvent debtor may apply to the chancery court
for the appointment o f a receiver, who may have 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>11 creditors who will execute a release; and third, to
the creditors generally.
Interest. 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 o f 10 per cent forfeits the debt. In computing the interest com­
missions paid to the agent o f 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
the 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.
J u risd ictio n . {See Courts)
L ien s. Mechanics, builders, artisans, laborers, and others doing any
work upon or furnishing any material for any building or erection under
any contract with the owner or bis agent, contractor or sub-contractor,
shall have for such work or material furnished a lien on the building or
improvement together with the land on which it stands to the extent o f
one acre if in the country; if in a city the lot or land upon which the
erection is situated. Hotel keepers have lien on baggage and personal
effects o f guests. Liverymen have lien on all stock and property left in
their care.
Lim itations. 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 conversatioii, assault and battery, false imprisonment, and slander, within one
year. Actions on written instruments, within five years; on judgments,
within ten years; on bonds of executors and administrators, within eight
years. In all cases, except actions for the recovery o f 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 o f a suit in
which to begin a new action. No person can avail himself o f a disability
which did not exist at the time the right o f action accrued. No 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 ited P artn ership s may consist of one or more general, and one
or more special partners. The latter of whom shall constitute in cash a
specific amount as his share ( f the capital, beyond which he is not liable
for firm debts. Those forming such partnership must make and file in
office pf circuit clerk of county, and principal place of business, a certifi­
cate showing name of firm, names of partnerships, distinguishing between
general and special, nature of business, amount of capital contributed by
each partner, period of commencement and termination of partnership.
Business to be conducted by general partners and suits brought by or
against them.
Married W om en . The property, real and personal, o f married
women remains their separate estate as long as they choose, and may be
devised or conveyed without the husband’ s assent, and is not subject to his


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1149

1 1 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 property. She can bind herself by contract only
m 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.
Mines an d Mining. Under control of commissioner of mines. All
documents relating to mines must he 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
made lor 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 o f a mine, with work
required by law, gives possessoiy right.
h„^to r .t g ^8:es.-are S i B
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 m the county where the land lies, and mortgages of
personal property m the county of the mortgagor’s residence. If the
mortgagor o f personalty is a non-resident the mortgage is recorded in the
county where the property is situate. Sales under mortgages and deeds
or 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 ana
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 whion
to redeem In action to foreclose a mortgage, it is sufficient defence that
the debt, (which it recites,) is barred by statute of limitations. .
Chattel Mortgages, may be acknowledged and filed as other mortgages, 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
office with the same effect as though recorded. Mortgages of personal
p roP ^ y reserving in the mortgagor the power of disposition are frauduP o w e r s o f A tto r n e y . Lands may be conveyed bypower of attorney,
which is acknowledged as deeds and recorded in the county where the
lands lie. J
Probate L aw . {See Administration o f Estates.)
Protests. {See Bills o f Exchange and Promissory Notes.)
I
Records. {See Acknowledgments, Conveyances, Mortgages, Chattel
Mortgages, and Powers o f Attorney.)
Redemption. {See Executions and Mortgages.)
Replevin. 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 defend5833
; ij. as 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 betaken 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.
Revision. The constitution requires that the statutes shall be revised
every ten years. The last revision was in 1904.
T axes are a lien between vendor and purchaser from the first Mon­
day m 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 per
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. {See also Corporations.)
Testimony. {See Evidence.)
Transfer o f Corporation Stock. {See Corporations.)
T ru st C om p a n ies. 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 Receipts and B ills of Lading 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-comM M ™ which a receipt has bee u 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. A carrier may however deliver
to shipper or consignee goods without presentation of bill of lading upon
receiving from such shipper or consignee bond in double the value of
the goods conditioned for delivery to the carrier thereafter the ori°inal
bill of lading (acts 1907.) Penalties are denounced against any ware­
houseman or other person who shall violate any of the 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 must
acknowledge it to be his will to each of them. He must declare at the
time of his subscription or acknowledgment to the witnesses that the
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 testator
If, however, the entire will is in the hand-writing of the testator, it need
not be attested, but may be proved by three witnesses familiar with the
hand-writing. Such will, however, can not be pleaded in bar of an
attested will) Wills are revoked by marriage and birth of issue, unless
provision for such L sue is made by settlement,or is provided for in the will.
The will of an unmarried woman is revoked by her marriage. Afterborn children, not mentioned in the will, take their regular distributive

BANKING AND COMMERCIAL L A W S—CALIFORNIA.

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share. I f the testator fails to mention in his will any child, or its legal
representatives, living at the time of executing the will, he shall, as to
such child', or its representatives, be deemed to have died intestate, and
such child, or its representatives, is entitled to its regular share.

SYNOPSIS OF THE LAWS OF CALIFORNIA
.RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y Messrs. C h i c k e r i n g & G r e g o r y , Attorneys and
Counselors at Law, San Francisco. (Bee Card in Attorneys' List.)
A c c o u n t s . 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 o f action is deemed to have
accrued from the date of the last item proved in the account on
either side, and such aciions upon mutual or open book accounts are not
barred until four years from the date of the last item. An account con­
sisting of debits on the one hand, and payments on the other, is not such
a mutual account. (_See Actions.)
Acknow ledgm ents. 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 o f 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 j udgment 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 o f 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 o f the peace, to be used in any other county than the onein which the justice resides, it must be accompanied by a certificate
of the clerk o f 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 o f 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 c tio n s . All civil actions, except those in which the supreme court
has. original jurisdiction, are commenced by filing a complaint, upon
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 nerson 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
affidavit 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
o f 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 relatés to, or the subject o f 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 an order that the service be made by publication of summons. Pro­
vided that wffire service is sought to be made upon a person who cannot
after due diligence be found w.thin 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 o f 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 tbe State, or absent 1here­
from, must not 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
deposited in the postoffice, directed to the person to be served, at his place
of residence. But personal service of a copy of the summons and com­


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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 pos ession 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
erty described. Whenever the public records in the office of a county
reco-der 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 prooeriy and to determine all adverse
claims thereto. In such cases the 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 months in
a newspaper of general circulation, published in the county in which the
action is brought, 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 m mtioned 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 describ d in the complaint within
fifteen days after the fieri publication of the summons. The plaintiff
must declare in his affidavit all knowledge that he has with regard to all
persons daiminv any interest or lien in the property, giving 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 must
be made upon them, but if the address discloses their res dence to ba
outsidn of the state, a copy of the summons, memoranda, complaint
and affidavit must be mailed to such persons within fifteen days after
first publicarion r f summons, and if no address is known to 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 run must be commenced before July 1,1909.
A d m in is tr a t io n o f E sta tes. Ail 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 oi 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 oi such party
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 must,
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 qlaiins. 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.
A ffid a v its. 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 before any
court, judge, or officer of this State may be taken before any officer author­
ized to administer oaths. An affidavit taken in another Siateoi the United
States to be used in this State, may be taken before a commissioner
appointed by the governor of this State to take affidavits and depositions
in such other State, or befor; 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, consifl, 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 a ls . 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 aD
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

BANKING AND COMMERCIAL LAW S—CALIFORNIA.
testamentary, or of administration, or of guardianship, or 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 o f real property, or settling an account o f 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
-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 \alue of the properly 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 8300 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 m mandamus certiorari
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 t io n . Persons 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 real property in fee or for life. This qualifica­
tion, however, does not include questions relating merely to the partition
or boundaries oi 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 consent. I f the
submission is not made an order o f 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 rrest. 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 or 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 o f misconduct, neglect in
office, or any professional employment,or willful violation of duties; also
in actions to recover the possession of personal property where it has
been concealed or removed 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
or disposing 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, by affidavit o f 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
money 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 fact must be stated.
Assignments for the Benefit of Creditors. 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 oi
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 ttachm ents may be issued at the time o f issuing the summons, or at
any time thereafter. All property not exempt from execution may be
attached in an action upon a contract, express'or implied, for the direct
payment o f money, where the contract is made or payable in this State,
and is not secured by any mortgage or lien upon real or personal prop­
erty ; or 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
injury to property in this State inconsequence 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


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1151

the amount of such indebtedness over and above all legal set-offs or
counter-claims, upon a contract, express or implied, for the direct paynient of money, and that such, contract was made or is payable in this
btate, and that the payment of the same has not been secured by any
mortgage or lien upon real or personal property, or any pledge of personal
property, or, if originally so secured, that such security has, without any
act oj 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
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 lDjury 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 specified in the undertakmg 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 alter the notice of the levy thereof, the defendant
may except to the sufficiency of the sureties. If he fails to do so he is
d?e.m“ ,t0 hav6.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 justify, or if others m their place fail to justify, at the time and place ap­
point« 1, the judge must issue an order vacating the writ of attachment.
B an k C o m m i ssion er s. N o corporation can use the money or trans­
act the business of a savings bank, or bank, or banking corporation, without 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 tue cashur, manager or agent of two or more persons, not
incorporated, engaged in the business of banking in the State must apply
tor and take out a license for such privilige and shall he subject to the
same requirements, linitattons. 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
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 liouidation 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 f >ur successive
weeks, the cost o f 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 reauired thereby is guilty of a misdemeanor.
B a n k s. The business o f 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
his 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.
Banks, Savings. 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 kin 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 an 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 option 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, banknotes,

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BANKING AND COMMERCIAL LAW S— CALIFORNIA.

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 of
a bill of exchange by a separate instrument binds the acceptor to one
who, upon the faith thereof, has the bill 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 o f L a d in g . A carrier must subscribe and deliver to the con­
signor, on demand, any reasonable number of bills of lading of 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 lading is 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 ladiag
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 e s 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
o f 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 ex­
tractors, also honey at apiaries; machinery,' tanks, stills, agitators, leath­
ers 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 1% 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 o f 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 made in good faith, and without
any design to hinder, delay or defraud creditors.
C la im s A g a in s t E sta te o f D e c e a s e d P e rso n s. Immediately upon
the appointment o f 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 judge 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 o f 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 dea'h, 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 o f 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 ol their date. 5. All other demands against the estate.
Collaterals. Are governed by the law relating to pledges of personal
property. A pledge is a deposit o f personal property by way of security


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for the performance o f 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 peiformance 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
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
due. 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 cts. All persons are capable of contracting except, minors,
persons of unsound mind, and persons deprived of civil rights. A con­
tract 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 making thereof. 2. A
special promise to answer for the debt, default, or miscarriage of another,
except in certain' cases, the general type oi which is where the party
making the promise has assumed the obligation as a principal obligation.
3. 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 the 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 fold, 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 agreeme nt authorizing or employing an agent or broker
to purchase or sell real estate for compensation or a commission. 7. An
agreement which by its terms is not to be per ormed 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 on v ey a n ces. An estate in real property, other than an estate 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 giant 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 o f 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.1) 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 tlfe conveyance the
grantor had not conveyed the same estate, or any right, title, or interest
therein to any person other than 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 dcrivts title to said real estate.
C o r p o r a t io 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 o f such persons must be residents of this
State. Private corporations may be formed for any purpose for which
individuals may lawfully associatethemselves. 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, wbish shall not be
less than five, and the names and residence o f those who are appointed
for the first year. This does not strictly apply to lodge, halt, 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 ol incorporation, there must be filed in his office an affidavit

BANKING AND COMMERCIAL LAW S—CALIFORNIA.
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 whieh the principal business of the
company is to be transacted, a copy thereof, certified by the county clerk,
with the secretary o f State, and the affidavit above mentioned where
such affidavit is required, the secretary o f State must issue to the cor­
poration over the great seal of the State a certificate that a copy of the
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 be 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 m 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 holds 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 o f any articles of incorporation filed in
pursuance o f 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 anpual license tax of $20, to be paid between the first day of July and
four o’clock in the afternoon o f the first day of September of each year
to the secretary of State, who shall pay the same imo the State treasury,
to be paid into the general fund of the State. Whenever articles of in­
corporation have been lost or destroyed by conflagration or other public
calamity, a copy of the certified copy of said articles filed in the office of
the secretary of State, 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, »eals, assessment books certificates of stocks or bonds
or other papers or records of any corporation Just or destroyed by confla­
gration or other pubi c calamity may be restored by decree of couri ren­
dered at hearing fixed upon petition therefor and held at least tweniy-flve
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 o f 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 ma'led to the countyseat
of the county where the principal place of bus.ness is located in the case
of persons affected but whoso addresses are unknown. (See Foreign
Cornorations 1
Liability o f Stockholders. Each stockholderof 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. I f 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. Thè 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 be 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 ofa 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 such 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 recovery
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 $ 500 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, o f 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 prope'ty, 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 o f 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


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1153

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
or such offer, and the plaintiff may recover from such defendant such o?
qis 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.
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
thay 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 ou 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 of 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, of 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. Appellate. 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 then respective counties provided the appeal
be taken within thirty days of the judgment.
District Courts o f Appeal. The State is divided ioto 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 Slate. 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 ep ositio n s. 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 Statesin 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 sendee of the summons or the
appearance of the defendant; in a special proceeding, at any time after a
question of fact has arisen there in. Deposi iions must he 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 betaken 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 writing to
any other mode, the mode so agreed upon must be followed. Special pro­
ceedings are necessary hi take depositions in a country the laws of which
do not permit the execution of a commission to take testimony.
Deposition* 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 o f the State. Any party to an action or
epecial proceeding in a court or before a judge 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 ig pending, on producing

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ihe commissicm 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:
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.
Descent and Distribution of Property. Property, both real and
personal, of an intestate passes to his heirs. A surviving wife succeeds
to one-half o f the community property, i. e., all property acquired by I
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 follow s: If the decedent leaves a surviving hus­
band or wife and only one child, or the lawful issue of One child, in equal
«hares 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. But 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 o f 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.
Distress tor Rent 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.
Divorce. 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 consent of either party was obtained by fraud. 5. If
consent was obtained by force. 6. I f either party was physically in­
capable of entering the marriage state.
Dower. (See Husband and Wife.)
E v id e n c e . 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 e c 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 o f 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 after 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 t io n s . The following property is exempt rrom 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 ana
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, ormulesforone
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 seventylive 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 o f 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 necessaryoffi.ee 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 o f 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 o f 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 o f $500; and two horses,


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Federal Reserve Bank of St. Louis

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
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 his 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 gtate, 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 j udgment recovered for its price or upon a judgment of foreclosure of a
mortgage thereon. (F or Homestead Exemptions, see Homestead.)
F o r e ig n C orp o ra tio n s. 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 o f 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 m 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 ¿hall 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 any demand, whether arising 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 may 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, ih the event
that no such person is designated, then on the secretary of state, and the
service is a valid service on such corporation The $10 annual license tax
described tinder the 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 o f that which is true
by one having knowledge of it, and promises made without any intention
of performing, or any 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 r n 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,

BANKING AND COMMERCIAL L A W 8— CALIFORNIA.
shall he 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.
H o lid a y * 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 o f 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 t e 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 irorn 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 m aybe 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 sb a n d an 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 separateproperty 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 of 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 after marriage. A husband and wife may hold prop­
erty as joint tenants, tenants by entireties, tenants in common, or as com­
munity property.
Interest. 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 may 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 1y2 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.
Judgment* (see Actions). The party in whose favor judgment is
given may, at any time 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 in 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 ien s. 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 reputed 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; ana 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,


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1155

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 tee time when such payments shall be due and
payable, must, before the work is commenced, be filed in the office of the
county recorder of tee 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 tee work, or on tee completion
of specified portions of tee work, or. on the completion of the whole work;
provided teat 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 tee 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 teat of the contractor, tee whole con­
tract price shall be 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 by all
persons except the contractor shall be deemed to have been done and fur­
nished at the personal instance and request of the person who contracted
with the contractor, and they shall have a lien for tee value thereof. Any
of the parties above mentioned may give written notice to' the reputed
owner teat 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 contractor 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 tee 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 is 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: tee 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 the value
of his services, for ten days after ceasing work or labor; .provided, within
that 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 for
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 by
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 irjury 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 sold 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 tee State, 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 inisband 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,

1156

BANKING AND COMMERCIAL LAW S—CALIFORNIA.

signed by the party to be charged. . Part payment will not take the case
out of the statute o f 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.
M arried W om 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 con­
tracted by her in the course of her sole trader’s business unless contracted
upon his written consent. A married woman may convey without conseni
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 afemme sole so as to bind her separate property. The wife may
make a will oi her separate property. The earnings of the wife are not liable
for the debts of 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 and transfer stock in corporations without the consent of her
husband. A married woman may make, execute, and revoke powers of
attorney for the sale, conveyance, or incumbrance o f 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. Mechanics' Liens. (See Liens.)
M o r tg a g e s . 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 o f 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 and Bills of Exchange. (See Bills 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 by 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 m 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 prin cipal 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 passage o f 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 of 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 o f partnership obligations.
P ledge. (See Collaterals.)
P o w e r s o f A t t o r n 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:
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 o f ............. ) to be the person
whose name is subscribed to the within instrument as the attorney m fact
o f ............, and acknowledged that he subscribed the name o f ..................
thereto as principal, and his own name as attorney in fact.
Probate L aw . (See Administration o f Estates, Claims against Es­
tates o f deceased persons, Descent and Distribution.) The superior court
has jurisdiction of proceedings in probate, and such proceedings must be
instituted (1) In the county of which the decedent was a resident; (2) in
the county m which he may have died leaving estate therein, he not be­
ing a resident of the State; (3) in the county in which any part of the
estate may be, if the decedent died out o f the State and was not a resi­
dent. Letters testamentary or of administration, may be revoked for


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misconduct or disobedience o f 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.
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 or joining in
the selection of the same. If none has been selected, the 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 property,
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, and if the
redemption can be effected only in a particular kind of money of 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 elaim 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 must 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 e sc issio n . 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 dis­
covering 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.
Special or Lim ited Partnerships. May be formed by two or
more persons for the transaction of any business, except banking or
•insurance. It may consist of one. or mbre persons called general part­
ners, and one or more called special partners. Persons desiring to
form a special partnership must severally sign a certificate stating:
1. The name under which the partnership is to be conducted. 2. The
gtnsral nature of the business intended to be transacted. 3. 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 o f the firm,
in which cases and some others, he may be held as 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 irom 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.
Sammons. (See Actions.)
Supplem entary Proceedings. When an execution is returned
unsatisfied, the judgment creditor can obtain an order requiring the
j udgment 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 of the
judgment, the judge may make the order, and instead thereof, if it appear
that the debtor is about to abscond, he may, by order of the judge, he
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,

BANKING AND COMMERCIAL LAW S—COLORADO.

1157,

and that tie will not in the meantime dispose of any portion of his prop­
of such court to have been made before such court, and
erty, and in default of security he may be committed to prison.
attested by the seal of such court; before the mayor or other chief officer
S u re ty C o m p a n ie s. In all cases where an undertaking or-bond
Clty
or
a seal>certified under such seal; before any
with any number of sureties, is authorized or required by any provision
consul or consuls of the United States within such foreign country under
of this code, or of any law of this State, any corporation with a paid up
the seal of his consulate.
capital of pot less than $100,000, incorporated under the laws c f this or
Actions. The distinction between actions at law and suits in equity
any other State of the United States, tor the purpose o f making, guaran­
is abolished. All actions must be prosecuted by the party in interest
teeing,gor becoming a surety upon bonds or undertakings required or
and are governed by a code of civil proceedure.
’
authorized by law. or which, by the laws of the State where it was origi­
Administration of Estates. All demands not exhibited in one
nally incorporated has such power, and which shali have complied with all
year are barred, unless such creditor can find other estate of the deceased
the requirements of the law of this State regulating the formation or admis­
sion ot these corporations to transact business in this State, may become
^ r J nv®ntor-le<i’ s1
aT1I1l ’ however, to femmes covert, persons of unsound
and shall he accepted as security, or as sole and sufficient surety upon
1 1 ^ imprisoned or beyond the seas, the term of one year after their
disability has been removed to exhibit their claims. Creditors having
such undertaking or bond, and such corporate surety shall be subject to
Hens on the property of the decedent can not foreclose for one year unless
all the liabilities and entitled to all the rights of natural persons’ sureties*
permitted by the court and m no event until the claim has been allowed.
provided, that the insurance commissioner shall have the same jurisdic­
tion and powers to examine the affairs of such corporations as he has in
Administration is granted to surviving husband or widow, or next of kin
ot an intestate, if they will accept, or are not disqualified; if no such
other cases; shall require them to file similar statemenis, and issue to them
a similar certificate.
relative appears within twenty days after death of intestate, administrahe granted to a creditor; if no creditor appears in ten days
T a x e s. On the last Monday of November of each year taxes become
after twenty days from death of intestate, or if next of kin files written
uGiinQiiGiit, 6xccpt the lust inst&llinent of the re&l property taxes and
relinquishment, county judge may select administrator. In counties
thereafter 15 per cent is added for delinquency; provided, that if they be
having a population of more than 100,000 on default of relatives or
not paid before the last Monday in April next Succeeding, 5 per cent is
creditors, administration is made by public administrator.
added for delinquency.
On the last Monday of April of each year all
A gent. (See Partnerships.)
the unpaid portion o f the remaining one-half of the taxes on all real prop­
erty is delinquent, and thereafter 5 per cent is added for delinquency
A liens. No restrictions as to aliens.
On the last Monday in April, of each year, all the unpaid portion of the
Arbitration. Differences may be submitted to arbitration by con­
remaining one-half of the taxes on all real property is delinquent and
sent
of the parties in the form prescribed by statute, and a judgment
thereafter 5 per cent is added for delinquency; and provided further
may
be entered by the clerk of the District Court upon the finding of the
that the entire tax on any real property may he paid at the time the first
arbitrators.
s
installment as above provided is due and payable; and provided further
that the taxes on all personal property, unsecured by real property, shall
A rresr. imprisonment f ° r debt, except in cases where one refuses to
deliver up his estate for the benefit of his creditors, or in cases of tort or
be due and payable immediately after the assessment of said personal
property is made.
where there is a strong presumption of fraud, is abolished. In civil
actions
founded upon tort, where the finding is in favor of the plaintiff
Transfer o f Corporation Stock. Whenever capital stock of a
and the verdict states that defendant was guilty of fraud, malice, or willful
corporation is divided into shares, and certificates therefor are issued, such
deceit,.execution
may issue against the body of the defendant, but not
shares of stock are personal property, and may be transferred by indorse­
where the defendant shall have been convicted in a criminal proceedino*
ment by the signature of the proprietor, or his attorney or legal representa­
tor
the
same
wrong.
Imprisonment shall not exceed one year, and the
tive, and delivery of the certificate, hut such transfer is not valid, except
prisoner is released upon payment of the debt. The writ of ne exeat is
between the parties, until the same is so entered upon the books of the
granted
under
proper
circumstances.
(See Fraudulent Purchasers.)
corporation as to show the names of the parties by and to- whom trans­
ferred, the number or designation of the shares, and the date of the
Assignments. Assignments for the benefit of creditors maybe made
m accordance with provisions of the Assignment Act. Assignments
transfer. Shares of stock may be held, owned, or transferred by a married
of wages not covered at the time of the assignment, or of other sums
woman as a femme sole. When the stock is owned by a non-resident, the
.to become due to the assignor, are invalid unless recorded with the
officers of the corporation may require of the person presenting the same
recorder of the county where the wages are to be earned, or the sums are
for transfer satisfactory evidence that the owner was alive at the date of
to become due, within five days from date thereof. If the assignor is a
the purported transfer, or in lieu thereof an indemnity bond, and may
married man or woman, residing with the wife or husband, he or she
decline to record the transfer until such requirement is complied with.
must join m the assignment. There are also other provisions regulating
T ru st Deeds may be used instead of mortgages; but are not often
assignments to wage-brokers.
*
“
used except with some savings and loan banks or societies.
A ttach m en ts,. In actions on contracts, the plaintiff may have the
W ills. Every person over the age of eighteen years, of sound mind,
defendant s property attached, upon filing a bond in double the amount
may, by last will, dispose of all his estate, real and personal. A married
sued for; with affidavit of plaintiff, his agent, or’ attorney, setting forth
woman may dispose of all her separate estate by will without the con­
the amount and nature of the debt claimed, and one or more of the fol­
sent of her husband, and may alter or revoke the will in like manner
lowing grounds of attachment: 1. That defendant is a non-resident
as if she were single. Her will must be executed and proved in like
2. A foreign coiporation. 3. A corporation whose chief office or
manner as other wills. Every will other than a nuncupative will must
business is out of this State. 4. Is evading service, or has been absent
be in writing, and every will other than an holographic will and a nun­
from State for four months, while debt has been overdue. 5 Is
cupative will, must be executed and attested as follows: 1. It must be
about
to remove his property out of Sta*e. 6. Has fraudulently con­
subscribed at the end thereof by the testator himself, or some person
veyed, or (7.) fraudulently concealed or removed or disposed of his
in his presence, and by his direction must subscribe his name thereto.
property,
or (8) and (9) is about to do either, or has departed or is about
2. The subscription must be made in the presence of the attesting
to depart from this State, with the intention of having his effects removed
witnesses, or acknowledged by the testator to them to have been made
from
this
State.
10. Has failed or refused to pay the price or value of
by him or by his authority. 3. The testator must, at the time of sub- I any article delivered
to him to be paid for upon delivery, or (11) of any
scribing or acknowledging the same, declare to the attesting witnesses
work
or
labor
performed,
or for any service rendered by plaintiff for de­
that the instrument is his will; and. 4. There must be two attesting
fendant, to be paid for upon completion. 12. That the defendant
witnesses, each of whom must sign his name as a witness at the end of
fraudulently
contracted
the
debt, or procured money or property of the
the will, at the testator’s request, and in his presence and in the presence
plaintiff. In Justice Courts, the fact that the debt is for farm products
of each other. An holographic will is one that is entirely written, dated,
house
rent,
household
furniture
and furnishings, fuel, groceries and pro­
and signed by the hand of the testator himself. It is subject to no other
visions, clothing and wearing apparel for the debtor or his family is
form, and may be made in or out of this State, and need not be witnessed.
additional
ground
for
attachment.
Garnishee process will issue in aid of
A witness to a will should always write his name and residence. All
attachment when money or property of the debtor is found in possession
devises or gifts to a subscribing witness are void unless there are two
of third persons.
other competent subscribing witnesses. No will made out of this State
Banks, Savings. Savings banks shall have a capital of not less than
is valid as a will in this State, unless executed according to the provisions
$25,000, which shall be paid in cash. There must be not less than three
o f the cede, except that a will made in a State or country in which the
incorporators,
and the board of directors must consist of not less than
testator is domiciled at the time of his death, and valid as a will under
three members, all of whom must be stockholders. The board of direc­
the laws of such State or country, is valid in this State as to personal
tors
or
trustees
may invest one-half of the deposits made with them upon
property. A tes<amentary disposition may be made to any person cap­
personal secu rity or in bonds or stock of this State or of the United States
able by law of taking the property so disposed of, except corporations
or
in
the
bonds
of any county, State, or school district of this State,
other than those formed for scientific, _literary or solely educational or
legally authorized to issue such bonds, or loan the sum upon bonds
hospital purposes cannot take under a will, unless expressly authorized by
secured
by
mortgage
upon unincumbered real estate worth at least double
statute.
the amount loaned. From 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 curient pavments. Savings banks
must keep on hand, or subject to call, at least 20 per cent of their sav­
ings
deposits. Such banks must be organized under the laws of Colorado.
SYNOPSIS OP THE LAWS OF COLORADO
Banks, State. Any number of persons, not less than three, may
establish a bank of discount and deposit; the capital stock must not
RELATING TO
he less than $30,000. No bank may take as security a lien on any
part of its capital stock, nor may it hold or purchase any portion of
.. BANKING AND COMMERCIAL USAGES.
its own stock, or of the capital stock of any other corporation,
unless such purchase is necessary to prevent loss upon a debt previously
Prepared and Revised by Messrs. R o g e k s , E l l is & J o h n s o n , Attorneys
contracted in good faith on security which at the time was deemed
at Law, Denver. (See Card in Attorneys' List.)
adequate, independent of any lien on such stock. Stock so purchased
must not he held longer than six months, if it can be sold for what it cost,
Acknow ledgm ents. When executed within this State, before any
or at par. Shareholders in banks, savings banks, trust deposit and
judge, clerk, or the deputy clerk of any court o f record, clerk, and re­
security associations shall be held individually responsible for debts,
corder o f any county, or his deputy, or notary public, with affixing by
contracts, and engagements of said association in double the amount of
either of official seal, or before any justice of the peace within his county.
the par value of the stock owned by them respectively. Any banker,
When executed out of this State and within the United States, before
bank officer, or employe who receives money or property after he
the secretary of any such State or Territory, the clerk of any court of
shall have had knowledge of the insolvency of said bank, shall be deemed
record, any notary public, or any commissioner of deeds for any such
guilty of larceny, and, on conviction, punished by imprisonment in the
foreign State or Territory appointed under the laws of this State, with
penitentiary for not less than one year nor more than ten years, and
affixing by either of official seal; before any other officer authorized by
in addition shall be individually responsible for the property received.
the laws of any such State or Territory to take and certify such acknowl­
Failure of the hank or banker within thirty days after receipt of such
edgment; provided, there shall be affixed to the certificate o f such officer,
money or property is prima facie evidence of knowledge of the insol­
other than those above enumerated, a certificate by the clerk of some
vency at the ti me of such receipt. Loans to any one individual or corpor­
court o f record of the county, city, or district wherein such officer re­
ation are limited to 20 per cent of the stock and surplus of the bank. No
sides, under the seal o f such court, as to the official capacity, true signa­
bank may buy or sell goods, chattels, live stock or real estate, except such
ture, and authority of the person certifying such acknowledgment.
as is needed for its banking bus ness; but may hold and sell such prop­
When executed out of the United States, before any court of record of
erty, including its own stock, when received as collateral security or in
any foreign Republic, etc., the acknowledgment being certified by the ' I the collection of debts. No director may borrow money in excess obten


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1158

BANKING AND COMMERCIAL LAWS—COLORADO

per cent of the capital and surplus, without the consent of a majority of
the directors other than ihe borrower. No officer, whether a diiector or
not may borrow' any sum whatever without the recorded consent of the
Board of Directors. All banks and trust companies, except National
Banks, are under the supervision of the State Bank Commissioner
who examines each institution at least twice yearly. I f he finds capital
impaired he requires the bank to make up deficiency. On failure of
bank so to do for sixty days, the bank is placed in hands of a receiver.
E v e ry bank makes reports o f its condition to the commissioner thrice
yearly. No bank can do business without a .certificate of authority from
the commissioner.
Bill s of Exchange. (.See Commercial Paper.')
B ills o f Lading and Promissory Notes. (See Commercial Paper.)
Chattel 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
record statement stating that the mortgage secures a bona 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
o f stocks of goods which reserve possession and power of sale to mort­
gagor, are void as against creditors acd 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 have 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, when made by husband or
wife residing with the other, must be made by husband and wife jointly.

sand dollars in excess of $50,000. Foreign corporal ions $30, and 30 cents
on each thousand dollars in excess of $50,000. Directors of a mining or
manufacturing corporation cannot 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 mprtgage or encumbrance without such
consent is absolutely void. Cumulative method of balloting for directors
is permitted. 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 individually responsible in
double the amount of the par value of their stock. When the stock be­
comes fully paid up, a certificate to that effect should be filed. The
directors are required annually, and within sixty days from January 1st, to
file a report stating the amount of the capital stock, the proportion
actually paid in, and the amount of existing debts, together with many
other particulars. 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. No meetings of the board of directors 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. A corporation under the laws of Colorado, may extend its
charter by special meeting c f the stockholders, called by 10 per cent of
the entire capital' st< ck. Corporate life shall be renewed for enlire
term, not exceeding twenty years. Foreign corpoiations doing business
in this State are not allowed a longer term of corporate existence than
domestic corporations of like character, but must file renewal certifi­
cates and pay fees therefor in the same manner as domestic corporations,
provided that such renewal must not extend the life of the foreign
corporation beyofid 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, until it has filed in the proper offices copy of its
charter and incorporation act, and designated an agent upon whom ser­
vice of process can be made, and until all prescribed fees including
license tax, shall have been paid, and until issuance of a certificate set­
ting forth such full payment.
In addition to all other fees and taxes, every corporation, whether
foreign or domestic, shall pay on or before the first day of May of each
year an annual State corporal ion license tax to the Secretary of the State of
Colorado, of two cents upon each one thousaud dollars of its capital stock.
Other provisions of the Revenue bill, approved March 22,1902, and
this act 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
in the State to acquaint themselves fully with its requirements. (See
Guaranty Companies; Trust Companies; Transfer o f Corporation Stock.)

Collaterals. 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.
Com m ercial Paper. To be negotiable, an instrument must con­
tain an unconditional order or promise to pay to order, or to bearer, a certain sum of money on demand, or at a fixed or determmaDie time or
times. The instrument may authorize that upon default o f payment of
any installment, or of interest, the wholeshall becomedue, an din case of
nonpayment, the sale of collateral securities, or confession of judgment,
or waive benefit o f any law intended for tbe advantage of tbo obligor. An
instrumeht payable on contingency is not negotiable. The date expressed
is prima facie the true date. One in possession of an incomplete instru­
ment has prima facie authority to fill in the blanks, but authority must
C ou rts. Justices of the peace have jurisdiction in matters involving
be strictly pursued. Where capacity of person signing is not clear he is I
less than $300, County Courts in matters involving less than $2,000,
deemed an indorser. A person adding to his signature words indicating
except in the administration o f estates. The District Court is the court of
that he signs on behalf of a principal, or in a representative capacity, is
general jurisdiction. The Supreme Court is the court of final appeal, and
not liable if duly authorized; but mere words of description without
also has some original jurisdiction, as in cases of habeas corpus, man­
disclosing his principal does not exempt him. Consideration is prima
damus and other remedial writs.
facie presumed. A pre-existing debt is a valuable consideration. An
accommodation party is liable to a holder for value with notice. Two
D ays of Grace. Are abolished. (See Commercial Paper.)
or more payees, unless partners, must all indorse unless one has
Depositions. The deposition of a witness out of the State shall be
authority for all. An instrument payable to a person as cashier
taken upon commission issued by the clerk of the court where the
or other fiscal officer o f a bank or corporation is deemed prima facie
suit is pending, on the application of either party, on five days’ previous
payable to the bank or corporation, and may be indorsed by the cor­
notice to the other, which notice shall be accompanied by a copy of the
poration or by the officer. For one to be a holder in due course the
interrogatories to be attached to the commission. It may be issued to
instrument must be complete and regular, and taken m good faith for
a person agreed upon by the parties or to any judge or justice of the
value before overdue, and without notice of any infirmity m the instru­
peace or to a commissioner appointed by the governor of the State to take
ment or defect in title. Holder is deemed prima facie holder m due
affidavits and depositions in other States and Territories, or to a notary
course; but when the title of a person who has negotiated it is shown to
public. The adverse party may file and have attached to the commission
be defective, the burden is upon the holder to prove himself a holder m
such cross-interrogatories as he may desire. Parties may agree by writ­
due course. A qualified indorser warrants the genuineness of the instru­
ten stipulation to take the deposition orally, or, upon proper cause shown,
ment; that he has a good title, and that he has no knowledge of any
may obtain an order of court directing it to be so taken.
invalidity. An unqualified indorser warrants the instrument valid and
subsisting. One indorsing an instrument negotiable by delivery is liable
D e sce n ts an d D istr ib u tio n s. The estate of an intestate descends,
as indorser. Except when excused, presentment for payment, or accept­
me-half to the surviving husband or wife, and the residue to the sur­
ance on the day when due is necessary to charge drawer or indorser of
viving children and descendants of children, if any; if none, then the
an instrument. Presentment must be made on due day, and notice of
whole descends to such surviving husband or wife. Except as enumerated
she estate of every intestate descends: 1. To his children surviving, and
non acceptance or non-payment given on next business day to all parties
primarily liable unless one has authority for all. Every negotiable
the descendants of his children who are dead, the descendants collectively
instrument is payable at the time fixed without grace. Waiver of protest
taking the share which their parents would have taken if living. 2. If
is deemed a waiver of formal protest, presentment, and notice of dis­
no children nor their descendants, then to his father and mother,
honor. Protest is required only in case of dishonored bills appearing
share and share alike; and if one dead, then to the other, if no father
on their face to be foreign. It is optional in case o f other negotiable
or mother, then to brothers and sisters, and to descendants of brothers
instruments. Bills drawn and payable within this State are inland; others
and sisters who are dead, the descendants, collectively, taking the share
are foreign. Parties secondarily liable are discharged- by extension of
of their immediate ancestors in equal parts. 3. If none of the foregoing
time of payment. Payment by a party secondarily liable, unless an ac­
living then to the grandfather, grandmother, uncles, aunts, and their de­
commodation party, does not discharge the instrument, but he may again
scendants, the descendants tailing collectively the share of their immediate
negotiate it. Acceptance must be in writing. If written on a paper other
ancestors in equal parts. 4. If none of the relatives above enumerated be
than a bill, whether before or after the bill is drawn, it does not bind ac­
living then to the nearest lineal ancestor and their descendants, the de­
ceptor except in favor o f a person taking the bill for value on the faith
scendants collectively taking the share of their immediate ancestors in
thereof. A qualified acceptance discharges drawer and indorser unless
enual parts All posthumous children or descendants of the intestate,
they assent. Assent is presumed, after notice, unless they dissent.
inherit as if born in the lifetime of the intestate; and all children of the
Holder can refuse to receive a qualified acceptance. No presentment lor
half blood and all legally adopted children shall intent as children of the
pavment is necessary after non-acceptance. A note drawn to maker s
whole blood. Illegitimate children inherit if parents subsequently interorder is not complete until indorsed by him. A check must be presented
marry.
within a reasonable time or drawer will be discharged to the extent of
D iv o r c e . Causes for divorce are: 1. Impotency. 2. A husband or
the loss caused by the delay. The bank is not liable to the holder until
wife living. 3. Adultery. 4. Desertion for one year. 5. Cruelty,
it accepts or certifies the check. When not otherwise provided by this
6 Failure to support for one year. 7. Habitual drunkenness for one year,
act, the law merchant prevails. This act applies only to instruments
s' Conviction of felony. Personal service of summons must be made it
executed on or after July 20, 1897.
defendant within the State. If without the State, service of summons
Conveyances. No joint tenancy unless expressly declared in the
and complaint by sheriff of county in which defendant found is required.
deed. Unless so declared grantees shall be deemed tenants in common.
Service may also be made by publication in certain cases. Plaintiff must
Lands not in possession may be conveyed. Not necessary for wife to join
be present and in case defendant defaults, the court appoints an attorney
to defend the action. Except in’ cases of adultery or extreme cruelty,
in deed except in a conveyance o f or a mortgage o f a homestead. Seals
and witnesses are unnecessary. Unacknowledged deeds are deemed
where the offense was committed within this State, plaintiff must have
notice from the date of filing but they can not be read in evidence unless
been a bona fide resident, of the State for one year. Neither party to
m a m a m within one vear from the date of the decree.
subsequently acknowledged or proved. (See Acknowledgments,’ Husband
and Wife.)
D o w e r . Dower and curtesy are abolished.
C o r p o r a tio n s . Three or more persons may form a corporation by
E x e c u tio n s . Executions may be issued immediately where no appeal
filing a certificate in thb proper offices,stating the name, objects for which
. taken, and when placed in the hands of an pfficer become a lien upon
organized, amount of capital stock, number of shares (not less than $1.00
,11 personal property of the debtor not exempt, m the county to which it
or more than $ 100.00 per share), term of existence (not to exceed twenty
s issued, and it may be directed to the sheriff of any county in the State.
years except in particular cases), number of directors (not less than
Sxecutions may issue upon judgments at any time within twenty years
three’ or more than thirteen), and names of those to manage the corpora­
rom the date of entry, but from and after twenty years from the entry of
tion for the first year, the place where principal office is to be kept, and
udgment, it is considered satisfied unless revived as provided by law.
counties in which its business is to be carried on. If part of the comlebtor or legal representative has six months to redeem land from sale
Danv’ s business is to be carried on beyond the limits of the State, that
mder execution. Judgment creditor has three months after expiry of
fact shall also be stated in the certificate. Fee for filing Articles of
aid six months.
Incorporation of domestic companies is |20, and 2Q cents on each thou-


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BANKING AND COMMERCIAL LAW S-CONNECTICUT.
E x e m p tio n s . Homestead, consisting of town house and lot or lots,
or of any farm to the value of not to exceed $2,000, is exempt, when
sucn homestead n&s t)66n entered of record as such, and is occupied
hy a householder, the head o f a family. Personal property exempt
includes all wearing apparel of the debtor and his family pictures,
school hooks 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 cowand
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 o f families are
entitled to tools, working animals, and stock in trade, not exceeding $300
in value. When debtor is head of family, or wife 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.
ITraud. Parties to any fraudulent sale of any lands, goods or chattels
or who conceal, secrete, remove, or dispose of any goods or chattels or
are parties to any bond, suit, judgment or execution, contract or convey­
ance had made, or contrived with intent to deceive and defraud or defeat
hinder, or delay creditors, are criminally liable. 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, wtih intent to de­
fraud the seller, sell, hypothecate, or otherwise dispose of them out of the
usual course of business, or secrete himself, or abscond, shall be guiltv of
a misdemeanor.
°
J
F ra u d s, Statute o f. 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 performed within one year; every sp( cial promise to answer for the
debt, default or miscarriage of another; every agreement, promise, or un­
dertaking made upon consideration o f 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. (See Sales o f Personal Property})
G a rn is h m e n t. (See Attachments.)
Husband and W ife retain their separate property, real, personal and
mixed owned at marriage, and any such property which shall come to
either of them by descent, devise, or bequest, or the gift of any person 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 ii sole and may convey real estate with­
out 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
mortgage upon, a homestead, and aDy assignment of future wages, or sums
to become due in the future, 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 of testatrix.
Marriage revokes a. will previously made. The husband is liable for the
debts and the liabilities o f the wife contracted before marriage to ihe
extent of the real and personal property he may receive with or through
her, or derive from the sale or rent o f her lands, and no further. The ex­
penses of the family and the education of the children are chargeable upon
the property of both husband and wife, and in relation thereto
they may be sued jointly or severally. Either husband or wife living
together can separately declare property of record in the name o f the
other “ A Homestead,” by an entry of record over his or her signature.
Neither can mortgage or convey homestead without the signature of
the other, and wife must acknowledge separate and apart from her
husband.
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 oyerdue 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 a lien 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.)

1159'

lien upon the property; also those who work or furnish materials or
machinery for the working of a mining claim or mineral deposit shall
have a similar lien. Liens rank in the follow ing"orderT L aborers
the day or piece, without furnishing m £
i
s nb-contractors.and material-men, whose claims are either
entirely or principally for materials, machinery or other fixtures 3 All
principai conti actors. 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 enforcePsuch lien
“ pon wWm “ T d a i m l d .11 6ixmonths after completion of the building

and must
fieed
1r“ VInhecase
imdr™
is deemed
and
must b^foreiin
be forecloted
as 0f
such.
ihe ent
public
trusteeaismortgage
named
the property is sold by him as provided in the deed, after advertisement in
a newspaper designated in the trust deed, and such advertisement S n o t
Jdan four weeks. Upon a sale by the public trustee, a certificate of
gate jb 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 mav re­
deem from sale within six months. After six months, and w ithin nine
months, a judgment creditor may redeem. After the expiration of the
redempt:on ihe public trustee executes a deed to the property to
the holder of the certificate of sale, which is assig table. Redemption from
dee?! of^rmTtentitp pr° pertty the ?ame as 8ales under executions A
w an?t *rust>.Pled.Se or mortgage, given to secure a debt, is unenforcible
(It A Z n d Z ^ m m
1X years from the maturity of the debt.Notes and Bills of Exchange. (See Commercial Paper.)
Partnerships, Limited and Special. A limited partnershipmay consist of one or more general partners, jointly and severally Sable*
and one or more special partners contributing a specified am oun/of cash
or property, who are not liable for the debt! of the partnership beyond
the amount so contributed. Only the general partners can bind the firm
Acertificate must be signed, acknowledged, published and filed of record
partners.hiP- B persons doing business under any name
o her than their personal names, must file an affidavit showing the real
Efconvictedandfined.

^

n0t bdng SUitS Upon debts dne’ a* d may

i „ L o w e r ? , ? f A t to r Ae y * ?°wers of attorney for the conveyance of
lands nmst be acknowledged in the same manner as deeds, and^must be
situate6*1m § | 8ame county wherein tne real property to be conveyed i!
voce wm/niGToruu Jraper.)
Replevin. A writ of replevin may issue in any suit to recover pos­
session of personal property upon filing a bond in double the value of the
property, with affidavit of ownership or right to possession, wrongful de­
tention and value of property, etc. Redelivery bond in similar amount
may be given by defendant in 48 hours after levySales o f P erson a l P ro p e r ty . Every sale or assignment of goods
and chattels m the possession or under the control of the vendor is void
as against creditors or subsequent purchasers in good faith, unless accom­
panied hy immediate delivery and followed by actual and continued
change of possession. Sales of any portion of a stock of merchandise
otherwise than m the ordinary course of trade are prima facie fraudulent
.and void against creditors, unless seller and purchaser together before
sale, make inventory, showing quantity, and cost price of the various articles; and unless purchaser makes full inquiry of the seller as to names
and addresses of all creditors of seller, and the amount due to each and
obtains an angwer; and notifies each creditor of the proposed sale the
cost price, and the proposed selling price; and unless the purchaser re­
tains the inventory and written answer at least fix months after the sale.
1ms act does not apply to sales by legal representatives of public officers
conductmg sales m their official capacity. {See Husband and Wife.)
Suits. (See Actions.)
T a x es 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 m in ing property of
the class heretofore exempted by the constitution of the State shall be
assessed and taxed, and che taxes levied and enforced by sale of the
property taxed in default of paym ent, 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.
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 someone for him in his presence and at hisdirection, 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, unlessthe 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 hy 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 by will must be administered by the County Court,
and all property of non-residents must be administered to clear title to
real property situated in this State. ( See Husband and Wife; Descents
and Distributions.)
r iu ic s i,

Limitations. Actions for the recovery of land must be brought within
twenty years after accrual of right. Actions for the recovery of lands '
actually occupied by another under a connected title deducible of
record or under tax or execution or 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 o f all taxes for said period, constitutes the pos­
sessor owner according to the purport of his paper title. The same
is true of vacant and unoccupied lands, unless someone 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. Actions against sheriffs and coroners, for lia­
bility 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 for fraud mast be
filed within three years after discovery, in case of a trust not cognizable by
the courts of commonlaw 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
SYNOPSIS OF THE LAWS OF CONNECTICUT
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
KELATING TO
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
BANKING AND COMMERCIAL USAGES.
ever, been attacked, and is very doubtful. (See 117 Fed., 400.)
Prepared and Revised by J a m e s E. W h e e l e b , Attorney at Law,
M a rrie d W o m e n . (SeeHusband and Wife.)
New Haven.
M ech a n ics’ L ie n s. Mechanics, material-men, contractors, sub-con­
Accounts. In all actions for a book debt, the entries of the parties
tractors, builders, and all persons of every ciass performing labor upon,
in
their
respective
books
shall
be admissible m evidence. (For limita­
or furnishing materials used in the construction or repair of any building,
tion o f actions on accounts, see Limitation to Suits.)
or any other structure or improvement upon land; also all who have
rendered their professional, skilled service upon such structure, have a
Acknowledgments. (See Conveyances.)


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1160

BANKING AND COMMERCIAL LAWS— CONNECTICUT.

Actions. There is hut 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.
A d m in is tr a t io n o f Estates. The probate court has jurisdiction
o f 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 o f 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
probate couit 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 o f the estate, after due applica­
tion to, and hearing in probate court.
A ffid a v its. Civil actions do not ordinarily have to De supported by
affidavits. Affidavits have little weight as evidence, and are rarely
admitted as such.
A lie n s . Any alien resident o f any of the United States, and any
citizen of France, so long as France shall accord the same right to citizens
o f the United States, may purchase, hold, inherit, or transfer real estate in
this State in as full a manner as native-born citizens.
A rbitration. 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 and acknowledge thac 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 partifes 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 rrest. 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. 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.
Assignments in Insolvency. Operation of this section suspended
during continuance of U. S. Bankruptcy 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
such cases. Creditors can, however, have such case removed to United
States court.
A ttachm ents. Attachment may be made upon the original process,
and is served by attaehlng 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.)
Banks. (See State Banks and Trust Cos.)
B ills of Exchange. (See Notes and Bills.)
B ills o f L a d in g . 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. Delivery of bill of lading held a symbolical
delivery of property represented. Shipper bound by valuation in bill of
lading in case of loss.
Chattel M ortgages. (See Mortgages, Conditional Sale's, and
Interest.)
Collateral Inheritance or Succession Tax. (See Taxes.)
Conditional Sales. All contracts for the sale o f 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 be 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 pergonal property held on such
conditional sale.
Contracts. Ordinary provisions of Statute o f Fraudg apply to.
Courts of probate havmg jurisdiction of the settlement of the estate
o f any deceased person may, Concurrently with the courts of equity,
authorize the executor or administrator to convey the title of the deceased


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in any real estate to any person entitled to it, by virtue of sny 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 in
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. Gaming or wagering con­
tracts are void. Contract of 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 proposed 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. The Uniform Sales Act passed in 1907 covers con­
tracts to sell. (See Sales by Retail Dealers.)
Conveyances. 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 used for
a seal. The acknowledgment is made bjr 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 neace,
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 c f 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 ot 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 th® town in which the land lies.
C orp ora tion s. Corporations may be formed under the general laws
by three or more persons for the transaction of any lawful business
except that of bank, savings bank, trust company, building and loan
association, insurance company, surely and indemnity company, steam
railroad or street railway company, telegraph company; and gas and
e'ectric lighting, water company, or any Company which shall need to
have the right o f eminent domain.
A certificate of incorporation must be filed, signed and sworn to by all
the incorporators, giving the name and location of the corporation, the
nature of the business, the amount of authorizel capital s'ock, which
must not be le«s than $2,000,"number of shares and par value of each,
which shall not be less than $25, amount of capital stock with which it
wid commence business, which shall not be less than‘$1,000. A certified
copy must be filed in the town clerk’ s office.
q’ he organization fee must be paid to the state, of fifty cents on every
thousand of its authorized capital stock up to five million, no payment to
be less than $25.
Stock may be paid for either in cash or property, but if in property, a
majority of the directors must make and sign upon a record book a state­
ment of the amount for which the property is received and its actual
value. In case of fraud in such valuation, directors personally liable.
Certificate of organization must be signed and sw orn to by a majority
of the directors and filed in the office of the secretary of state, setting
forth the amount of stock subscribed for, amount paid in cash and in
property, names and addresses of subscribers with number of shares sub­
scribed for, statement that the.directors and officers have been duly
elected and by-laws adopted, names and addresses of directors, the loca­
tion of the principal office in the state with the name of the agent in
charge.
There must be at least three directors; vacancies in directors maybe
filled by remaining directors.
No stock can be issued until it has been paid for in full. Receipts for
partial payments of stock may be issued by the treasurer. Certificates
for fractional shares cannot be issued. The corporation has a lien on
capital stock owned by any person for debts due to it from the stock­
holder. The corporation may acquire its own capital stock with the
approval of three-fourths of the stockholders, given at a meeting called
for that purpose.
Stockholders’ meetings must be held in this state.
Similar corporations may consolidate.
A corporation maybe woundup by voluntary agreement of all stock­
holders, signed and acknowledged, directors acting as trustees to wind
up the business.
Receiver may be appointed on application of stockholders owning onetenth of the stock, in case of fraud, m' smanagement, or if assets are in
danger of waste by attachment, or when corporation has-abandoned its
business.
Annual statements must be filed in the office of the secretary of state
and a certified copy thereof in the town clerk’ s office, either in January
or July, giving the names and addresses of the officers and directors,
amount of outstanding stock not paidUor in full with the amount due
thereon, the location of the principal office in this state with the name of
the agent in charge on whom process may be served. For failure to file
annual statement the corporation may forfeit $100 to the state.
C osts. For case before justice of the peace, actual cash costs not less
than $5; before city court from $5 to $25, according to amount
involved; before court of common pleas or superior court; not less
than $25; before supreme court of errors, not less than $50. Attorney’s
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 ou rts. 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 the estates of deceased, insolvent, and incompetent persons, and are
established in a large number of probate districts — one for each die-

BANKING AND COMMERCIAL LA W S— CONNECTICUT.
trict. Justices o f the peace have civil jurisdiction up to $100. In New
Haven and Hartford jurisdiction o f justice of the peace has been trans­
ferred to city court, except in cases of summary process and bastardy.
Days o f Grace. (See Notes and Bills o f Exchange.)
Deeds. (See Conveyances.')
Depositions. May be taken in a civil action by a judge or clerk oi any
court, justice oi 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 oi age and unable to attend the
trial, is going to sea, or out oi 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
tn&t he was notified, and shall also certify the reason of taking such deposition, 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 goveriaor 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 o f 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 o f witnesses by subpoena and capias.
Descent and Distribution o f Property in Intestate Estates.
<As, to the share of a surviving husband or wife, see the 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 o f any of them who
may be dead (children who have received estate by advancement o f the
intestate in his lifetime being charged with the same in the distribu­
tion) . If there be no children or legal representatives 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 o f the whole blood to take in preference to kindred
of the half blood, in equal degree, and no representatives to be admitted
anfong collaterals after the representatives of brothers and sisters.
D iv o r c e . Divorces are granted by the superior court exclusively, and
for the following causes, viz. : Adultery, fraudulent contract, willful de­
sertion for three years, with total neglect o f duty ; 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
in this State at the time of the marriage, and before bringing thè com­
plaint has returned to this State with the intention of permanently
remaining. Custody of the children m aybe 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 lite, 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 v id e n ce . (See Courts, Insurance Company, Corporations.)
E x e c 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 o f the debtor except for breach o f promise of
marriage, misconduct or neglect in office or professional employment,
or breach o 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 o f paying such judgment,
and may be committed for contempt. (See Exemptions.)
E x e m p t io n s . Homestead, to the value of $1,000, if declaration to
hold it as such is recorded. Of the property o f 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 o f any debt
which has accrued by reason o f 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 o f the personal services of the defendant against the claim for
the defendant’s personal board); o f the property of any one person hav­
ing wife or family, two tons of coal, specified amounts o f 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.
planting or taking oysters or clams or taking shad; one sewing machine
being property o f any one person using it, or having a family; one pew
being property of any person having family who ordinarily occupy it, and
lots in any burying ground; and all benefits allowed by any association
of persons in this látate toward the support o f its members, incapac­
itated by sicknèss or infirmity, shall be exempted from foreign
attachment or execution.
Foreign Attachm ents. 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 o f 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 o f 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.)
Foreign Corporations. Every foreign corporation, except insur­
ance and surety companies and building and loan associations
74


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1161

and investment companies (a corporation which has power to or does
«sUl or negotiate its own choses in action or sell, guarantee, or negotiate
the choses in action of other persons or corporations as invest­
ments), 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
treasurer, and a majority of its directors, showing the amount
oi its authorized capital stock and the amount thereof which has been
paid in, and if any part o f such payment has been made otherwise than
m cash, such statement shall set forth the particulars 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 m
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 served; and in such writing such corporation shall agree that any
process against it which is served on such secretary shall be of the same
iegal_ force and validity as if served on the corporation, and that such
appointment 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 some officer authorized to take
acknowledgments of deeds and shall be filed in the office of said
secretary, and copies certified by him shall be sufficient evidence of such
appointment and agreement. Service upon said attorney shall be sufhcient service upon the principal, and may be made by leaving a dulv
attested copy of the process with the secretary of the state or at his office.
Every foreign corporation doing business in this State shall, within
days after an increase or reduction ot its capital stock file in
tne office of the secretary of the state a certificate substantially like that
required of domestic corporations organized under the like conditions,
in e president and treasurer of every foreign corporation doing business
m this State, which is not required by law to make other annual
returns 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
lor 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 ¿hall
record the same in a book kept by him for that purpose. On the
fifteenth day of Marc h 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, m accordance with the provisions of thig 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 attorney-general shall collect all forfeitures due under
this section. Every corporation whose officers shall fail to comply with
the requirements of this section shall forfeit to the State one hundred
dollars for each failure.
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 mtent, as those of our own courts. In an action on a judgment ren­
dered m 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
same subject comes immediately into controversy. 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 Mm 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 the 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 judg­
ment. Only such pleas are pleadable to a foreign judgment, as are plead­
able 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 a rn is h m en t. (See Foreign Attachments.)
G u a ra n ty C om p an ies. 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.
Holidays. (See Notes and Bills o f Exchange.)
Husband 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 o f $2,000,
and one-half absolutely of the remainder of said estate.

1162

BANKING AND COMMERCIAL LAW S— CONNECTICUT.

I n ju n c t io 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 court 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 of 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 for a 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. Whenever a temporary injunction
is granted in any cause before the return day thereof, it may be dissolved
or modifiodby tbe court or judge who issud it, by any judge ef the court
to which the action is returnable, or by any judge of the superior court;
provided a written motion for such dissolution shall be prepared before
the return day. Any person who may be directly or indirectly interested
in, or affected by the granting of any temporary or permanent injunc­
tion, may appear and be heard with regard to granting or dissolving
the same. When in any action a temporary 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 o f taking the case to the
supreme court of errors, and praying that said temporary injunction may be
continued until the final decision therein ; and unless said court shall be of
opinion that great and irreparable injury will be done by the further concontinuance of said injunction, or that said application is made for delay
and notin good iaith, it shall be the duty of the coart to continue said in­
junction until a final decision be rendered in the supreme court of errors.
When in any action judgment shall be rendered for a permanent injunc­
tion 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 be granted .for similar reasons.
The court in which such case is pending may, however, if in its opinion
the cause of justice shall so require, dissolve said temporary injunction or
remove the stay o f said permanent injunction while said cause is so pend­
ing in the supreme court of errors.
In s o lv e n c y . Suspended except as to voluntary assignments in insol­
vency by corporations, owing to United States Bankruptcy Act.
I n t e r e s t. Legal rate, in absence o f 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.
J u 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 o f both parties. Judgment
by default may be obtained if the defendant makes no appearance on
return day. Certificate of judgment may be recorded by judgment
creditor or his assignee in town clerk’s office, and such judgment from
the time o f filing such certificate 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 predi­
cated 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.
J u ris d ictio n . (See Courts.)
L ie n s . (Mechanics’ Liens.) Mechanics’ liens for labor or materials
furnished in the construction or repair of any building may be filed by
original contractor within sixty days after completion of work; but sub­
contractor 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. Mechanics’ liens are foreclosed same as real
estate mortgages. Unless foreclosure is instituted, liens expire two years
after filing. (For Judament Liens, see Judaments.1
L im it a t io 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 of married women,
minors, lunatics, and those imprisoned. The time during which the
party against whom there may be such cause o f action shall be without
the State shall be excluded from the computation. Title to real estate by
adverse possession may be gained in fifteen years.
L im it e d P a r tn e rs h ip s . Such partnerships (except banking and in­
surance) 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 shall
not extend beyond the capital so furnished by them, to be called special
partners. Such partnerships shall be conducted under a company name,
in which the name of one or more of the general partners shall appear; and
if any special partner’s'name shall be used in said company name, he shall
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 o f the general partners are authorized to trans­
act the partnership business and sign the firm name, and also the amount
o f 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 facie evi­
dence of the matters therein contained; and the partnership shall be re­
sponsible only for the acts o f the general partners designated as specially
authorized as aforesaid; and copies o f 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 be 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


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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 pf 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 r rie d W o m e n .

(See Husband and Wife.)

M o rtg a g e s 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. Chattel mortgages 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: machin­
ery, engines, or implements situated and used in any manufacturing or
mechanical establishment; machinery, engines, implements, cases,
types, cuts, or plates situated and used in any printing, 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 instru­
ment used by an orchestra or band. Brick, burned or unbumed, in
any kiln or ¡brickyard. Hotel keepers may mortgage the furniture, fix­
tures, and other personal chattels contained and used in the hotels
occupied by them or employed in connection therewith. Chattel mort­
gages are foreclosed by sale under order of court, Iu all chattel mort­
gages there must be a particular 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 there­
from.
N o ta r ie 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 function at any glace 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 court of common pleas. • In 1901 the legislature
passed an act validating all ministerial acts previously done by any notary
after the termination of his office or outside of the local limits of his j urisdiction, if otherwise legal.
N otes 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 12tb
(Lincoln Day), 22d of February, 30th o f 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 day, except that instruments payable on
demand may at the option of the holder be presented for payment before
twelve o ’ clock noon Saturday when that entire day is not a holiday.
P o w e r s o f A t t o r n 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 r iv a t e B a n k s. (See end o f State Banks and Trust Companies.)
P r o b a t e L a w , (See Administration o f Estates, Appeals, Assign­
ments and Insolvency, Collateral Inheritance Tax, Courts, Descent and
Distribution o f Property, Husband and Wife, and Wills.)
P r o te s t. (See Notes and Bills o f Exchange.)
R e c o rd s , 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
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 o f the
same, nor until the plaintiff furnishes a bond with sufficient surety in a
sum double the value of the property.
Sales. Uniform Sales Act passed in 1907.
S e r v ic e . 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 or all complaints, writs of error and appeal from
probate, which may be brought to or pending in any court, when the
adverse party, dr 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.

BANKING AND COMMERCIAL LA W S—DELAWARE.
State B a n k s an d T ru st C om pan ies« A reserve fuhd of 15 per
cent of aggregate of deposits must be held and maintained in the hanking
office, o f which 4-15 must be gold and silver coin, demand obligations, or
United States or national bank currency. The remainder of said reserve
fund may consist of balances subject to demand draft with reserve agents
ì? iLe w Tork, Boston, Philadelphia, Chicago, Albany, New Haven or
Hartford, and of railroad bonds whiòh are legal investments for savings
banks. No new loans or discounts may be made when the reserve is
below 15 per cent. Bank commissioners may apply for appointment of a
receiver when the reserve falls below 15 per cent after thirty days1notice
No one person, corporation or firm may borrow more than 10 per cent’
of the amount of the capital stock paid in and surplus undivided profits
combined, of any state bank or trust company. This does'not apply to
collateral loans. Penalty of $3,000 for violation of this law. Paper of
executive officers or clerks may not be discounted. Loans to parties out­
side the state can only be made when the loans and discounts in the
aggregate amount to one-half of the capital stock.
Books o f a bank may be examined by stockholders under certain con­
ditions.
Three-fourths of the directors must be residents, of the state. No
director may be obligated to a bank or trust company in an amount
exceeding 5 per cent of the capital actually paid in and surplus undivided
profits combined. This does not apply to loans secured by collateral.
Cashier’s bond o f $10,010.
At least five reports, verified by oath, must be made each year to the
bank commissioners, exhibiting in detail the resources and liabilities of
the bank or trust company, ten days after receipt of request therefor
from the bank commissioners, which shall be published in a newspaper
in the county where the bank or the trust company is located. Penalty
of $10 for each day o f delay in transmitting report.
Words “ bank,” “ trust,” or “ savings” may only be used by banks
trust companies and building and loan associations incorporated by thè
United States or by the general assembly, but this shall not apply to firms
or individuals doing business as private bankers or brokers under their
own names, who deposit with the state treasurer a bond of $10,000, or
acceptable securities of that amount for the protection of customers from
styling themselves banket s in the conduct of their business. Banks and
trust companies maintaining savings departments must invest deposits
according to the laws of the state concerning investments of savings
banks, and must make sworn statements to the bank commissioners on
October 1st in each year and of tener if required by the commissioners, of
the amount of such deposits and the securities in which they are invested.
Suits. (See Actions.)
T a x e s . Land may be sold for delinquent taxes after due advertising,
only so much being sold as is necessary to pay taxes and costs. Owner
has one year in which to redeem, by paying 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 o f 1 per cent
on the face amount thereof for five years, or at the option o f the bolder
thereof for a greater or less number oi 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 societv, shall be liable to a tax of
3 per centum of its value.
Transfer of Corporation Stocks. (See Corporations.)
Trust Companies. (See State Banks and Ti'ust Companies.)
W arehouse Receipts. Uniform Warehouse Receipts Act passed in
1907.
'
W ills. All persons of the age o f 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 born to the testator, and no provision is made in the
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. Wills of non-residents owning property in this state m aybe
proved by filing exemplified copies thereof in district where property is
located. Such course should always be taken in order to pass good title
to real estate.

SYNOPSIS OF THE LAWS OF DELAWARE
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y G e o r g e M. J o n e s , Attorney at Law, Dover.
(See Card in Attorneys' List.)
Acknow ledgm ent. (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 of 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 o f the summons at his usual place of
abode, in presence o f some white adult person, six days before court sits.
Service by publication allowed in the court of chancery only.


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A ffidavits may be administered in the State by the
? f the peace, or notary public; and out
any official duly authorized to take acknowledgments
affidavit016 a n° tary PUblic i8 Preferable- The affiant

1163
chancellor any
of the State by
of deeds etc •
must sigh the

Assignments and Insolvency. There is a domestic insolvent
law providing for 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, andgfwo

S e BK

S f t f i;P
r S r ds ba ii^ .e

,
„
Domest i c attachment may be issued against an
d^vHbhpmrVththl8 ®tate>after a return to a summons or capias fssued ten
days before the return thereof, of non est inventus, and proof of cause
ffistlvtl0L,:dphtpH0L
Si
affldavit “ tbat the defendant is
Iv
va« W P ffB i Hi pl&mtiff
m a sum exceeding $50, and has
abscqpded from the place o f his usual abode, or gone out of the State
to, B n l bi®creditors, or to elude process, as is believed."
a
the attachment of property and summons of garnishees.
Attachment may be dissolved on entering security to satisfy anv
!)h r exI ent o lAhe ProPerty attached that may be recovered
against the defendant. On return of attachment the court appoints
three persons as auditors of the claims of creditors; thecreditor attaching
®iii^edAiLd° ubi®f share. f? r, hie dlligepcei not to exceed full amount
in
creditor not duly presenting his claim receives no share
m the distribution. Plaintiff is not required to give security Wages
1 H H W W attachment in New Castle County except for’ board or
lodging. Foreign attachment may be issued against any person not an
inhabitant of the State after a return of non est as in domestic attachupo“ .ai? da7lt. be™g 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 attach­
ments the plaintiff m foreign attachment has the benefit of his own discovery and does not share with other creditors. It is similar to domestic
attachment in all respects except as to appointment of auditors and
distribution among creditors. The court or any judge upon petition may
investigate any allegation m affidavit, except as to the amount of the debt.
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 ot the State. Banking companies can not
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 There
have been recently several trust companies formed in the State,
either by special act before the 1897 constitution, and oy general corpora­
tion act since, which have been granted banking powers by.special
statute. Banks and trust companies are. now subject to inspection bv
insurance commissioner.
J
Bills an 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.

¡1

Chattel Mortgages must be accompanied with an affldavit that the
mortgage is made for the bona fide purpose of securing a debt, and not
to defraud 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.
Claim s A gain st E states o f D eceased P ersons are piid in the
following order: 1. Funeial expenses. 2 Bills for medicine, medical
attendance, nursing, and necessaries for last sickness of the deceased
3. No more than one year’s wages of servants in house and laborer on &
farm. 4. Rent for not more than one year, eiiher 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. Contraéis 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 for
him to act in this State.
C o n tra cts are joint and several, unless otherwise expressed.
Conveyances of Real Estate 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 of their 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, and 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 tli e seal of said court in like manner. In case of such 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.
Corporations. General Corporation Act fo r all purposes other than
banking. Each stockholder is individually liable for the amount oi
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-

1164

BANKING AND COMMERCIAL LAW S — DISTRICT OF COLUMBIA.

poratiôns must file with the secretary o f State, statement o f 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 o f each
county the name of authorized agent upon whom process may be served.
C osts. Non-resident plaintiffs may be required to give security for
costs.' ,
C ou rts. 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 o f general sessions are held in New Castle
county at Wilmington the first Monday in January, March, June and
November and Third Monday in September, in Kent county at Dover,
the first Monday in July and the third Monday in February, Aprii and
October, and in Sussex county the first Monday in February, April and
October and last Monday in June in Georgetown. Oyer and terminer
meets on call of judges. Jurisdiction—The superior court has jurisdic­
tion in all civil cases, but if suit be brought for less than $50, costs will
not be recovered. Justice’s jurisdiction, $200.
D e p o sitio n s. In any suit pending, the prothonotary, on application,
enters a rule commission on t e 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 iv o r c e . The superior court has sole cognizance for the following
causes : 1. A divorce from the bonds o f matrimony shall be decreed for
adultery, 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, o f a crime by the laws of
this 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 o f 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
the age o f sixteen years, at the time of the marriage and such marriage
not being 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 o f life suitable to her condition. The same court can decree
marriages 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
wife living; or where either of the parties was at that time insane. No
divorce 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 sherifl
received the writ, if actual levy be made within sixty days thereafter.
Priority of lien remains in force five years. Execution may be issued
Within five years after date of judgment. An execution from a justice is
a lien 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 in preference to the execution. There is no redemp­
tion on property sold under execution or mortgage. In New Castle
county wages for a month o f employés of corporations are preferred to
the execution. Stay o f six 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 t io n s . No homestead law. Family pictures, bible, and library;
lot in burial-ground and pew in church; all wearing apparel, sewing
machines in private families; tools o f trade not to exceed $50 in Kent, or
$75 in New Castle county; and to the head o f a family in New Castle
county $200 of personal property and in Kent county $150, consisting of
household goods only. No additional exemption in Sussex. The provis­
ions of the exemption law extend and apply to a person dying and
leaving a widow, giving and securing to such widow the same benefit
o f exemption that her husband would have had if living. Wages are
exempt from execution attachment in New Castle county except for
board or lodging. Pianos and organs leased or sold under contract
exempt from execution process or distress for rent, provided the
lessor or vendor noiifies 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 promisee;
for an amount between five and twenty-five dollars must be proved by
one credible witness or some memorandum in writing signed by the
person to be charged therewith; for an amount exceeding twenty-five
dollars there must be some memorandum or promise in writing signed by
the party to be charged therewith.
G a r n is h m e n t. All persons except public officers, attorneys, etc., are
subject to summons as garnishees. Wages are not subject to garnish­
ment in New Castle county except for board or lodging.
H o lid a y s, L e g a l. January 1st, February 12th, February 22d, May
30th, July 4th. first Monday in September, Thanksgiving Day and
Christmas, and Saturday afternoon in New Castle county. I f 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 s te a d . There is no homestead law in Delaware.
I n t e r e s t. Legal rate is 6 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 t s o f courts o f 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


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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 o f 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 it a t io 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 until
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 r r ie d W o m e n retain their real arid 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 controll­
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. I f 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 aie necessary for a will. Husband and
wife may testify in all’civil actions in which either or both are or may be
parties to the suit.
M o rtg a g e s o f R e a l P r o p e r t y are executed and acknowledged like
other deeds. They become a lien from the time they are lodged with the
recorder. Upon foreclosure o f 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 r o o f o f C la im 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 r o t e s t . (See Bills and Notes.)
R e p le v in . The writ issues out of the superior court to obtain posses­
sion of goods unlawfully taken or unlawfully detained. No affidavit is
required, but before the officer to whom it is directed can execute it
the plaintiff or some substantial person for him must enter into bond
to such officer in 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 u m m on s may be served on the defendant by stating the substance
of it to him personally at any time before the return of the writ, or by
leaving a copy of it at his usual place of ab >de in the presence of some
adult person six days before the return thereof. Against a corporation
may be 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 be had by publication under order of the chancellor.
From a Justice service must be personal if forthwith, otherwise four
days must intervene before hearing.
T a x es laid and imposed by the levy court of a county or by 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 be in writing and signed by the testator, or by some person
subscribing the testator’ s name in his presence and by his express direc­
tion, and attested and subscribed in his presence by two or more credible
witnesses, or it shall be void. A will shall be proved before the register
of the county in which the testator resided at the time of his death. A
nuncupative will of personal estate not amounting to over $200 and pro­
nounced by 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 born 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.

SYNOPSIS OF THE LAWS OF THE
DISTRICT OF COLUMBIA
RELATING- TO

BANKING

and

c o m m e r c ia l u s a g e s .

Prepared and Revised by J o h n B . E a r n e r , Esq., Attorney at Law,
Washington. (See Card in Attorneys' List.)
A c k n o w le d g m e n ts . The deed of a corporation shall be executed
by having the seal of the corporation attached and being signed with the
name of the corporation, by its president or other officer, and shall be
acknowledged as the deed of the corporation by an attorney appointed
for that purpose, by a power of attorney embodied in the deed or by one
separate therefrom, under the corporate seal, to be annexed to and
recorded with the deed.
A c k n o w le d g m e n t o f D eed s. When any deed or contract under
seal relating to land is to be acknowledged out of the District of Columbia,
but within the United States, the acknowledgment may be made before
any judge of a court of record and of law, or any chancellor of a State,
any judge or justice of the supreme, circuit, or territorial courts of the
United States, or any j ustice of the peace or notary public: Provided that
the certificate of acknowledgment aforesaid, made by any officer of a
State or Territory, not having a seal, shall be accompanied by a certificate
of the register, clerk, or other public officer that the officer taking said

BANKING AND COMMERCIAL LAW S—DISTRICT OF COLUMBIA.
acknowledgment was in fact the officer he professed to be. Deeds made
‘
cf0UIltry may be acknowledged before any judge or notary
■
H
H
i secretary of legation or consular ¿fficer or acting
fn spctfnn
f+nhe U? lt®d ,stat+es as such consular officer is described
m section Ì074 of the revised statutes of the United States, and when the
f ,111*311*,18 made before any other officer other than a secretary of
°H£er or aetmg consular officer of the United States,
official character of the person takmg the acknowledgment shall he certid®d | | Ì Ì i l l Ì Ì P P™
b+ed a\ i ° deeds out of the District of Columbia
b a j ' J b e United States. No deeds o f conveyance of either real or
attorney estate by individuals shall be executed or acknowledged by
ified^y^uftutefik6 commorl ^aw i ° rms of actions are used except as mod™A^ nì iÌÌ,IsÌ ? alt *0i 1*.0 Tb,e Probate Court, a special term of the supreme
coort of the District of Columbia, has exclusive jurisdiction of the settleÄ ° f Ä
eS- .A+b itte n Petition stating the facts in the case must be
filed with the register of wms. This petition is acted upon by a justice
of the supreme court o f the District, who sits daily. All executors and
administrators and guardians are required to give bond with security to
be approved by the Court. The testator may waive the giving of bond
but the court always requires a bond sufficient to cover the debts of thè
d?c~ased n°t to exceed double the value of the personal estate By act
oi Congress, certain trust companies incorporated thereunder may act
as executor or administrator without bond, and corporations having
power under their charters may act as sureties in all cases where indi­
viduals can Creditors may he barred in thirteen months provided the
required notice is properly published. Probate Court may order sale of
real estate to pay debts, in case personal assets are insufficient.
A ffid a v its. Affidavits for use in the District of Columbia should he
taken before a justice of the peace, notary public, judge of any court of
record, or a United States commissioner.
A lie n s . Aliens may hold personal property in the District of
Columbia, and may acquire real estate by descent. Alien corporations
are prohibited from acquiring real estate. Corporations of which over 50
per cent of the stock is or may be owned by persons or associations not
of Cohimhia mteC* ®tates can not aC(lu' re or own real estate in District
A p p e a ls . Appeals will lie from justices o f the peace to the supreme
court of the District of Columbia where more than $5 is involved
and m 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 he taken from
the court of appeals to the supreme court of the United States in all cases
involving $5,000, exclusive of costs, of where a constitutional question or
some treaty lyitb a foreign power is involved.
A r r e s t. There is no imprisonment for debt in the District of Columbia
ih e court has the power to imprison for non-payment of alimonv in
divorce cases.
J
A tt a c h m e n t s may issue at Institution o f 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 o f process, or is about
to remove, assign, dispose of, or secrete property with intent to hinder
delay and defraud creditors, or that the debt was fraudulently cóntractea. Creditor must give bond, with approved surety or sureties to
be approved by the Clerk, in twice the amount o f his claim for costs and
damages if attachment is wrongfully sued out.
B ills an d N o te s. The common law o f England relative to bills and
notes, except where changed by statute, governs iall cases in which they
are involved. A law similar to the New York Negotiable Instruments
Law is now in force m this District. (See Legal Holidays and JPvotest.')
C h a tte l M o rtg a g e s . No bill of sale or mortgage or deed of trust to
secure a debt of any personal chattels whereof the vendor, mortgagor or
donor shall remain in possession, is valid and effectual to pass the title
herein, except as between the parties to such instrument and as to other
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 in the same manner as deeds of real estate; and as to third persons not having notice of it, such instrument shall be operative only from
the time within said ten days when it is delivered to the recorder of deeds
to be recorded.
C olla te ra ls. The holder of the note as collateral security for debt
stands upon the same footing as the purchaser and may maintain suit
thereon for his own benefit. The collateral pledged may be sold in
accordance with the terms o f the collateral note which usually provides
that the collateral may be sold upon non-payment of the principal of the
note, either at public or private sale, and in such cases the purchaser at
any such sale obtains a valid title to the collateral sold.
C o n tr a c ts. Every contract and obligation entered into by two or
more persons, whether partners or merely joint contractors-, whether under
seal or not, written or verbal, and whether expressed to be joint and sev­
era1 or not, is for the purposes of suit deemed joint and several. On the
death of one or more of such persons, his or their executors, adminis­
trators, or heirs are bound by said contract in tbe same manner and to the
same extent as if the same were expressed to be joint and several In
actions ex contractu against alleged joint debtors it is not necessary for
the plaintiff to prove their joint liability in order to maintain his action,
but 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
him, or against one only, if he alone is shown to be indebted to him, and
judgment will he rendered as if the others had not been joined in the
suit. Any o f .several joint debtors, when their debt is overdue, may make
a separate composition or compromise with their creditors.
C o r p o r a tio n s . Any three or more persons may form a company for
the purpose o f carrying on any enterprise or business which may be
lawfully conducted by an individual, excepting banks of circulation or
discount, railroads and such other enterprise or business as is otherwise
provided for. Such corporations may have a perpetual existence. No
such company isauthorized to transact business until 10 per cent of the
capital stockshall have been actually paid in, either in monev or propertv
at its actual value; and the recorder o f deeds,before filing any certificate
of incorporation, must be satisfied that the entire capital stock has been
subscribed for in good faith. All of the stockholders o f such company are
severally and individually liable to the creditors of the company in which
they are stockholders for the unpaid amount due upon the shares of said
stock held by them respectively, for all debts and contracts made by such
company, until the whole amount o f capital stock fixed and limited by
such company shall have been paid in, and a certificate thereof shall have
been made and recorded. Every such company must annually, except in­
surance companies, within twenty days from the first of January, make a
report-, which shall be duly published and which reportshall state the


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Federal Reserve Bank of St. Louis

116.5

e5 stin£ ¡ ¡ » { S B
prop0i ion act,ually Pajd and the amount of
existing debts. Eoreiga corporations doing business in the District o f
Columbia are subject to service of process on their agents or on the per®?as oooduetmg their business, or by leaving copy thereof at the principal
u'h2e0ffi.-buS1i1*?.8 of 8uch ?omPany, or at the residence of its agent
The affairs of the corporation shall be managed by not less than three
nor more than fifteen trustees, a majority of whom must be residents
o L v h f ?18trlct*t0 be annually elected, except for the first year by the
mPObboMers, at such time and place as may be provided by the by-laws.
earn'tflT atnit r-eCOrdteif f
certificates of incorporation^where
capital stock is authorized is forty (40) cents on each $>1 000 of the
M
of the capital stock of the corporat,on, a8 set forth in its cer
tificate, provided that no fee shall be less than Twenty-five Dollars:
In sexton continuously throughout the year. Suits on con­
tracts, accompanied by sufficient affidavit of right to recover result fn
tadg“\ent 1 twenty days, exclusive of Sundays and ifegal holidays, after
f^Zh°fa^trV1ue- on defendant, unless defendant files an affidavit setting
forth facts which, if true, would in law constitute a valid defense.
“
Days of Grace abolished.
,-Jhe following form of deed is now all that is required in the
-t0 oonvey a fee simple title to real estate;
This deed, made this........ day o f........., in the year ...... by me
m m consideration of (here insert considera­
tion), l, tbe said. . . . . . . . . do grant unto (here insert grantee’s name), of
••••••• t 8-11 that (here describe the property).
Witness my hand and seal.
oi \
A deed must be acknowledged and recorded with'the' recorder o f deeds
suffiefent sealCt fr° m th<3 tlme ° f recording- A scro11 is considered a
??v POS.\tion s- Depositions of witnesses to be used in any civil cause
whether the case be at issue or not, may be taken under anv of the
following conditums*. 1. Where the witness lives beyond the District
of Columbia. 2. Where the witness is likely to go out of the United
qta
tin °-f* the .D.istrict and not return in time for the trial
f- Wbere the witness is infirm or aged, or for any reason the party desirofStH<q te8tlmony fear he may not be able to secure the same at tim time
R
W
i the S-*ld W1.tness asides 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
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 commissioner 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
P?ac® withm any place under the sovereignty of the United States: 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 m the event of the cause.
anywise
C6n # nrul D istrib u tio n . The ordinary rules of descent may be
8,taled u foltowe: 1. If an intestate leaves a child or children or
descendant oi such child or children, his property descends to such child
*>,0r ^KClr de8Ceildan„ts’ 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
th .I f.none’ i° tbe mother or father or the ancestors of the intestate and
tbfrbescenduntsof 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-tffird only : if no child or descendants, but parent, brother, etc ,
the widow shall have one-half. The surplus shall go as follows- Cl) if
children or descendants, to them equally per stirpes; (2) If no chiM or
descendants and a father, then to the father; (3) If no father but a
mother then to the mother; (4) I f none, but a brother or sister or
descendants, to them equally per stirpes; (5) If none, to collateral relations in equa1 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 adminhusband 18 USually re80rted t0 for protection of parties pealing with the
D iv o r c e . Absolute divorces may be obtained in the District of
Columbia tor the following reasons: Where there is a prior valid marriage
not dissolved. Where the marriage was contracted dfiring 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 agel
but m 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 o w e r . A wife is entitled to dower in all real estate owned by the
estate
at tlle tlme of Ms death> including equitable as well as legal
E v id e n ce . (See Depositions.)
,,®x e ,clj t ion 8 - Executions may be levied upon all goods and chattels
oi 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 m 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 justices of
the peace may be superseded, according to the amount of the judgment
upon good and sufficient security being entered by a persbn 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 wa<ms
of servants or common laborers, nor upon any judgment for less than $5.
E x e m p t io 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

1166

BANKING AND COMMERCIAL L A W S—FLORIDA.

Foreign Judgm ents. 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 sucb judgment verified according to the
net 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 r n is h m e n t. After judgment the writ of garnishment may issue
•Against specific property or credits in the hands o f the garnishee and on
the return of thé writ, if there be credits, the judgment or condemnation
'follows. The writ of garnishment can not be issued against the United
ôtâtes or the District of Columbia.
H u sb a n 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 o f every description as fully as if she were unmarried,
and may dispose o f 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. A husband, who willfully neglects to
provide for wife or minor child under sixteen years, in destitute circum­
stances, m aybe adjudged guilty of a misdemeanor, and maybe fined, or <
imprisoned, by the couit havtng jurisdiction.
Interest. The legal rate of interest in the District o f Columbia is 6 I
per cent, and in any puit 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 m the
District, made or to be performed in any State or Territory of the United
States where such contract rate o f 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 annum until paid.
Judgments. Every judgment is good and enforceable by an execu­
tion issued thereon for a period o f 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 o f justices of the peace are not
liens on real estate until recorded in the supreme court of the District of
■Columbia.
>
Jurisdiction. ($ 2« Actions and Appeals.)
L e g a l H o lid a y 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
.gucli day as may be appointed by the President of the United btates for
fasting and prayer. Every Saturday is a legal half holiday and notes falling due on that day are not protested until Monday. Process is not issued
o r served by the marshal after 12 o ’clock on Saturday.
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 and 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.
Married W o m e n . {See Husband and Wife.)
M o rtg a g e s. Mortgages are almost entirely supplanted by deeds of
trust, requiring no court proceedings to foreclose. Joining the wife is
necessary to bar dower.
P a r tn 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 partners
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 certificate 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 general 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 r o t e 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 a bill does not so appear to be a
foreign bill, protest thereof in case of dishonor is unnecessary, lh e 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 tact that tne
drawer or acceptor cannot be found.
R e c o rd s . 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 prima fa cie 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 o f the State, territory, or country
where tbe same may be recorded require such record, and whicffi has been
recorded agreeably to such laws, and the copy of any will which said laws
reauire 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
the hand of the clerk or other keeper of such record and the seal of the
■court or office m which the record has been made, \sprima fa cie evidence
to prove the existence and contents of suchdeed, will, or other instrument
in writing, and that it was executed as it purports to have been.
Taxes. 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.
Trust Companies. Trust companies can be organized under the
general provisions of the code on that subject. No trust company can


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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 most first comply with lhe pro­
visions for the organization of trust companies under the laws of this
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. 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 execut­
ing a valid deed or contract. Any will executed after January 17, 1887,
and before January 1, 1902, devising real estate, from which it shall
appear that it was the intention or 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 by words of general import devise all of the estate
or all of the real estate 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 there of, unless 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
nnlfiSB a contrary intention appear from the will.

SYNOPSIS OF THE LAWS OF FLORIDA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. B l o u n t & B l o u n t & C a r t e r ,
Attorneys at Law, Pensacola.
Accounts. Accounts for the purpose of limitingactions 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, and merchandise. Open accounts are barred
in two years and store accounts in four.
Acknowledgments must in every instance be under official seal. If
made in the State of Florida, may be made before any judge, justice of
the ueace 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 tlie United St&tes^
before any commissioner of deeds appointed by the governor of the
State to reside in such country, or any notary public o f such foreign
country or before any minister charge d’affaires, consul-general, consul,
vice-consul, commercial agent, or 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
define the subscriber personally appeared . . . . . . . . . . . . ---- ;••••• a*|d
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 s a id ........ . . . — wife of the
rrVi 1 p
acknowledged and declared that she executed the
same freely and voluntarily, and without fear, apprehension, compulsion
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
Given under my hand and seal official this ..............day o f ............ 19 —
A c tio n s . Suits shall be begun only in the county (or, if less than 8100
in iustice district) where the defendant resides* or where the cause of
act on accrued, or where the property in litigation is
If brought m
any county wffire defendant does not reside, the plaintiff, or some person
in his behalf, shall file with the precipe or bill in chancery an affidavit
that the suit is brought in good faith and with no intention to annoy the
defendants 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 is tr a t io 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 uerson. No minor can be appointed. If no one applies for
letters of administration within sixty days after death, the probate court
mav order the sheriff to act. The administrator appmnted by the court
must give bond in amount to be fixed by the probate judge, respect being
“
to the value of the estate. The sheriff when acting as administrator
is liable upon his official bond. Claims against an estate are barred after
two vears from date of notice given bv administrator to present same
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
Staffi three vears, after removal of disabilities. 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.
Affidavits may be made before any judge, clerk of the circuit and
supreme courts, justice of the peace, or notary public.
A liens. No distinction between and citizens, except that they are
not allowed to vote.,
.^
,
Anneals. Appellate proceedings for the common law side are by
writ o f error, which must be sued out within six months from the date of
toe judgment The record must be filed in appellate court on or before
the roturn day of the writ, under penalty of dismissal. Questions of tact
can only be taken up by bill of exceptions, which must be presented

BANKING AND COMMERCIAL LAWS—FLORIDA.

1167

within the term of the court unless by special order the time is extended
general law. Stockholder liable only for amount unpaid upon subscripAppeals in chancery may be taken within two years, and the law govern­
tion. Charter fee of $2 for every $1,000 of capital stock, payable to the
ing writs of error as far as it relates to filing of transcripts of records and
State, but no fee is less than $5 and none over $250.
proceedings thereon and filing assignmènt of errors, the duty of appel­
Costs. Non-resident plaintiff required to give $100 bond to secure
late court in giving judgment, in causing execution of its decrees and
costs. 1 be defendant may have suit dismissed if bond not given.
quashing writs of error, are applicable to appeals in chancery. Notice of
appeal m Chancery must be filed with clerk and recorded in minutes.
C ourts. Circuit courts hold two terms a year in each county, and
This gives appellate court jurisdiction.
have original jurisdiction in all equity cases, also in all cases at law
not cognizable by inferior courts. County courts have jurisdiction of
A r b it r a t io n . Parties to the controversy may make a rule of court of
amounts not exceeding $500. County judges, at all times open for pro­
any arbitration to which they may desire to submit by filing a statement
bate business, have full probate powers, have also civil jurisdiction to
of agreqpient of the matters they desire to arbitrate in writing with the
extent of $100. Justice’ s jurisdiction, $100.
court having jurisdiction, which statement shall include the names of
the arbitrators and the umpire. An award upon such arbitration can
vxcuuurs
may ue orougnr oerore claim is reduced to judgonly be set aside for fraud, gross negligence, or misbehavior of one or
ment, but suit at law must be first brought and judgment must be ob­
more of the arbitrators or umpire, or evident mistake acknowledged by
tained before decree can be rendered.
the arbitrators or umpire, who made and signed the award.
Days o f G ra ce are abolished.
A r re s t. No arrest for non-payment of money unless it be for non­
may '3e taken upon commission when witness resides
payment of a fine lawfully imposed.
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
A ssig n m en ts a n d I n s o lv e n cy . Assignments by insolvents are
oath is made that a material part of the case or defense depends upon the
provided for by law. Preferences are not allowed. All property, except
testimony of such witness. The time for the suing out of the commission,
that which is exempt, must be surrendered to the assignee. Assignee
the
names of the witnesses, and the name of one commissioner must be
gives bond and winds up estate. The assignment does not release debtor
giyen to opposite side a reasonable time before commission is issued.
from debts not satisfied by it.
Printed instructions for the guidance of commissioners usually accom­
A tt a c h m e n t process may issue upon affidavit made, setting forth
pany commission. Fees of not less than $5.00 a witness are to be taxed
that amount is actually due; that plaintiff has reason to believe defend­
as costs by the clerk and p iid by losing party.
ant will fraudulently part with his property before judgment can be
D e sce n t a n d D is tr ib u tio n o f P r o p e r ty . Property descends : 1.
recovered, or is actually removing his property, or is about to remove
1° the children and husband in equal shares. 2. If there be no children
it out o f the State, or reside beyond the limits thereof, or is actually
then
all to the husband or wife. 3. If there be no children, husband or
removing or about to remove out of the State, or absconds or conceals
wife, then to the father. 4. If no father then to the mother, brothers
himself, or is secreting property or fraudulently disposing of same, or
ana
sisters
and their descendants. 5. If there be no brother or sister
actually removing, or is about to remove, beyond the judicial circuit in
then the estate shall be divided into moieties, one of which shall go to the
which he, she, or they reside. Attachment may also issue for a debt not
oaternal,
and
one to the maternal branches in the following course: 1.
due, upon affidavit stating that the debt is actually existing, and that the
To grandfather. 2. To grandmother, uncles and aunts. 3. To great­
defendant is actually removing his property beyond the limits of the State,
grandfathers.
4. To great-grandmother, brothers and sisters of great­
or is fraudulently disposing of his property for the purpose of
grandfathers, etc., passing first to nearest lineal male and then to lineal
avoiding the payment of his just debts or demands, or is fraudulently
female
ancestors
and their descendants. The estate of an infant decedent
securing his property for such purpose. Proof must, also, be exhib­
if derived from father’ s side, shall pass to father, brothers and sisters’
ited to the officer by affidavit other than that of the plaintiff, of the
and
paternal
relatives,
and if derived from mother’s side, shall pass
existence o f the special ground. The making of the affidavit causes
to mother, brothers and sisters, and maternal relatives. Half-bloods
nil debts to mature for the purposes of the suit. Plaintiff must
inherit
only
one-half.
Adopted
children are treated as children of blood
give bond, with two securities, in at least double the debt or
Bastards inherit and transmit through mother’s side, as if legitimate'
sum demanded. Service of notice of the suit may be either personal or
Aliens
have
same
right
as
citizens.
There are no entailed estates nor rinht
by publication where attachment is levied and property is not retaken
of survivorship.
by defendant. No arrest allowed in civil actions. Writs of garnishment
D iv o r c e . Only absolute divorces are granted, and upon the following
may be issued at commencement o f suit or at any time afterward, pro­
vided the plaintiff, his agent or attorney, will make affidavit that he I grounds:' adultery, natural impotence,, prohibited degrees of kinship
does not believe the defendant will have in his possession, within the
extreme cruelty, habitual indulgence in violent temper, habitual intem­
perance, willful and continued desertion for one year. Divorce obtain­
State and county, visible property on which a levy could be made,
ed in another State or country; that either party has another husband or
-sufficient to satisfy such execution as he believes he shall be able to ob­
wife living. Alimony or suit money will be granted upon wife’ s appli­
tain, and that affiant expects to obtain a judgment for (a specified amount).
cation and will be allowed upon same grounds as would justify an abso­
B a n k s. There may be established, by five or more persons, in any
lute divorce. .Party seeking divorce must have been a resident of
incorporated town or city having 3,000 or more inhabitants, a banking
State for two years, except when adultery is charged any citizen of
association or institution, with corporate powers or privileges, with a
the State may file a bill without regard to length of residence.
capital of not less than $50,000. In towns of not more than 3,000 inhab­ I
D o w e r . The widow is entitled to one-third of the real estate for life
itants the capital may, with the comptroller’ s approval, be not less than
and one-third of the personalty in fee simple. May within one year elect
$15,000. Savings banks may have not less than $20,000 capital. Banks
to take a child’s part in lieu of dower.
are formed as other corporations are, and can not begin business until
E v id e n ce . Witnesses not disqualified by reason of interest. In civil
authorized by the comptroller. The comptroller of the State may inspect
cases, husband and wife may testify for or against each other. In suits
and supervise the business of the bank, and inspect and examine its
by
or against lunatics or personal representatives, heirs-at-law, next of
books, papers, documents, minutes, and everything pertaining to the acts
kin, assignee, legatee, devisee, or survivor o f a person deceased, no evi­
of the bank. Banks are required to make a semi-annual return to the
dence
of a transaction or communication between such lunatic or deceased
-State comptroller of resources and liabilities, and advertise in January of
person and the opposing party or those under whom he claims, can be
each year amount of stock, property, and contractual indebtedness.
given
by
the opposing party, unless such evidence is first offered in behalf
Before organization 50 per cent of the capital stock must be paid in
of such lunatic representatives, legatees, devisees, etc.
cash; 10 per cent each month thereafter. Stockholders are individually
E
x
e
c
u
tio n s . Executions can be issued immediately upon the entry
■liable to the extent of their stock at the par value thereof, in addition
of the judgment and within three years thereafter, and are a lien upon
to the amount invested in said shares. Directors must be citizens of the
real
estate
from date of entry, and upon personal property from the time
United States, and own ten shares of stock of $100 per share. The comp­
the sheriff receives them. They can be renewed at any time within
troller, with the aid o f the courts, winds up the affairs of insolvent banks.
twenty years from entry of judgment. Both real and personal property
B ills o f L a d in g . Bills of lading are evidence against the carrier ol
are subject to sale under execution. Executions are returnable when
the direction by which freights are to be received, carried, and delivered—
satisfied, sheriff reporting progress at each term. Sale day first Monday
collector or holder of commercial paper, attached to bill of lading not a
in each month. No stay law. No redemption of property sold under
warrantor of the quantity or quality of the goods represented thereby
execution.
except by express contract in writing, and the officers, agents, and
E x e m p tio n s to every head of a family residing in the State home­
■employes of the carrier are required to comply with the terms o f the bill
stead of 160 acres of land, and improvements, if in the country; one-half
of lading under penalty of criminal prosecution.
acre of ground, if in an incorporated city or town, together with $1,000
C h a ttel M o rtg a g e s and' D e e d s o f T ru st. All conveyances intend­
worth of personal property. The exemptions in a city or town shall not
ed to secure the payment of money are mortgages. Chattel-mortgages
extend to more improvements or buildings than the residence and busi­
must be recorded or the property delivered to mortgagee to make them
ness house of the owner. No property is exempt from sale for taxes or
effectual against bona fide creditors and purchasers for value. Injunction
assessments, or for obligations contracted for its purchase, or the erec­
will be granted against the removal of mortgaged personalty from the
tion or repair of improvements thereon, or for house, field, or other labor
State; can only be foreclosed by bill in chancery unless under $100, and
performed thereon. The wages of every laborer who is the head of a
upon personal property, when a common law action may be brought in
family residing in the State, are exempt from garnishment.
justice of the peace court, and mortgage filed with precipe. The form
F o r e ig n C orp ora tion s. Commercial corporations can do business
and effect of trust deeds have not been disturbed bv statute. It Is a crim­
in this State without restriction. If no officer in State upon whom service
inal offense to mortgage personal property more than once without the
of process can be made, such service may be made upon any agent
•consent of, first lienor.
transacting business for it in the State.
C o lla te ra l S e c u r ity . It is a misdemeanor to sell, pledge, loan, or
F o r e ig n J u d g m en ts. _Judgments obtained in the several courts of
in any way dispose of collateral security without the consent of pledgor.
the State, may be recorded in any county and have same force and effect
A written agreement may be made at the time o f making the pledge for
as if originally obtained therein. Judgments obtained in other States or
the sale of the collateral in such manner and upon such terms as the
countries, merely evidence, and have to be sued upon to be made effective
parties may desire.
as judgments.
C on tra cts. In order to bind an administrator personally, or one for
F ra u d . (See Limitations o f Actions.) Obtaining money or property
the debt or default of another, or one upon an agreement made in con­
under false pretense or by falsely personating another, are punishable
sideration o f marriage; or upon contracts for the sale lands, tenements,
criminally.
■or hereditaments or any uncertain interest therein, or for any lease thereof
G a rn ish m en t. (See Attachment.')
for a period longer than one year; or upon an agreement not to be
G u aran ty C o m p a n ies. Guaranty Companies are permitted to
performed within one year, there must be an agreement, note, or memoran­
become
surety upon bonds for all purposes after complying with certain
dum thereof in writing signed by the party to be charged, or some one
statutory requirements.
lawfully authorized by him. Contracts for the sale of personal property
must be in writing, or the property must be delivered or earnest money
H o lid a y s . Whenever reference is made, in contracts to be performed
paid. Newspapers must either be subscribed for or ordered in writing.
in Florida, to legal holidays, such day shall be understood to be the days
mentioned under title Notes,and Bills of Exchange, and Good Friday.
C on v e y a n ce s . (See Acknowledgments.) All conveyances of real
■estate, or any interest therein for a term of years o f more than two years,
H u sb a n d a n d W ife . The husband has full control of wife’s property
must be by deed in writing, signed, sealed and delivered in the presence
and is not chargeable by the wife with the rents and profits. Must be
of at least two subscribing witnesses; and in order to be effectual against
joined with wife in sales of her property. Homestead can only be
subsequent grantees or incumberances, must be recorded. The wife’s
alienated by their joint execution. Husband not liable for wife’s antenup­
separate estate can be conveyed only by the joint deed of herself and
tial debts. Has no interest in her separate earnings. Has action for
husband, and confirmed by her acknowledgment, taken separate and
negligence causing her death; wife’s property not generally liable for
■apart from her husband. Words of limitation unnecessary. Husband
husband’ s debts. Wife may sue with respect to separate estate without
may convey direct to wife.
husband joining. Infant wife may join husband in sale of her real
C o r p o r a tio n s may be organized for any lawful business under a
estate.


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1168

BANKING AND COMMERCIAL LA WS— GEORGIA.

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 destruction 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.
I n s o lv e n cy . Statutes suspended by national bankruptcy law.
In s u ra n ce C o m p a n ie s. 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.
I n te r e s t. Bight 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 o f 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 o f circuit court.
L ie n s. 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 o f the parties, and the
nature o f 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 o f the unpaid balance o f 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 o f the material, or the performance of the
labor. Liens upon personal property exist only while possession is re­
tained by lienor.
L im it a t io 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 o f real property—actions on judgments
of courts of the United States, or of any State or Territory other than Flor­
ida itself, in seven (7) years. Actions on Florida judgments—actions on
contracts 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, on all actions not herein and specifically men­
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, wares and mer­
chandise, two (2) years. Actions against railroad companies for killing
cattle, and any action by the State for a statutory penalty or forfeiture,
one (1) year.
M a rrie d W o m e n retain their property, real or personal, owned at
marriage or acquired thereafter by gift, 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 o f the wife’s
property, except when he has been adjudged insane for more than a year.
W ife may sue concerning her real estate without joining her hu sband with
her in the suit. Widow take's as dower a life estate in one-third part of
the real estate o f 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 t-he
husband, and if there are no children she will inherit all the property,
real and personal.
M o rtg a g e s of real estate must be executed and proved or
acknowledged in the same manner as deeds, and, to be effectual
against creditors or bona fide purchasers, must be recorded. Are fore­
closed by bill 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 o f mortgagee if left in his
possession more than two years without the mortgage being recorded.
N o ta rie s. 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. $500 bond is required to be given. Certificate must
show date o f expiration of commission.
N o te s a n d B ills o f E x c h a n g e . 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 Stated 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 o f January, 26th of April, first Monday in 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.

recorded with the several county judg°s and may be probated in 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 e d e m p tio n . None, excepting tax sales.
R e p le v 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 been 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 tlfe 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 e r v ic e o f P ro c e ss. Out of circuit court, made by the sheriff or
his deputy. Out of county judge’s or justice of peace courts, may be
made by 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. (See Foreign Corporations.)
S uits. 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. I f 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 a x e s. 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 e s tim o n y . (See Depositions.)
T r a n s fe r o f S to ck . 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 prior holder.
W a r e h o u s e R e c e ip t s . 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
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 GEOEGIA

r e l a t i n g to

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by W

im b i s h ,

W a t k i n s & E l l i s , Attorneys at Law,

Atlanta.
(See Card in Attorneys' List.)

A c k n o w le d g e m e n ts. (See deeds.)
A c tio n s . All distinction between suits at law and in equity is
abolished. Equitable relief can be had in superior courts of law.
A d m in istra tion o f E states. Letters of administration issue in
the line pf preference, first to the husband or wife, second to the next
of kin, relations by consanguinity are preferred to those b y affinity.
If there are several of the next of kin in the same degree, preference
is given to that one selected in writing b y those most interested in
the estate. If no preference is expressed the ordinary exercises
his discretion. If no application is made b y next of kin a creditor
may be appointed, and if no application is made the ordinary
will vest the administration in a county administrator,' an officer
authorized by statute for that purpose. Administrators must give
bond in double the value of the estate. Out of the estate of each
deceased person, the first charge, after funeral expenses, is a year’s
support for the family, to be laid off b y commissioners according to
the condition and standing of the family. Foreign administrators
may act in this State on giving bond 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 sanie interest and will give the
same bond as in the case of foreign administrators. Administrators
of other States may sue in this State b y filing in the office of the
clerk of the court, to which suit is brought, a properly authenticated
copy of their letters of administration.
A ffid av its. Pleas and defense? in the courts of this State which
are required to be under oath, may be made before any official o f
P a r tn e r s h ip , L im ite d , an d S p e cia l. None.
the State or county where the oath is made, who is authorized b y
P o w e r s o f A t t o r n e y . Any Contract or conveyance may be made
the laws of such State or county to administer oaths. Prima Facie
by power of attorney. A conveyance of a married woman’s real estate
the official attestation of the officer is evidence that he was author­
by power of attorney in order to be valid the power o f attorney must be
ized to act. Any non-resident seeking equitable relief, when called
acknowledged by her separate and apart from her husband, and the
on to verify proceedings, should be sworn before a commissioner
acknowledgment must state that she executes it freely and voluntarily,
of this State, or a judge of a court of record where the oath is made,
without compulsion, fear, apprehension, (or constraint o f or from her
with the attestation of the clerk of such court that the signature of
husband. The husband must join either in the deed or powers of attorney.
the judge is genuine, and that the court over which he presides is
Powers o f attorney for the conveyance of real estate must be recorded.
a court of record.
A lien s. The subjects of governments at peace with the United
P r o b a t a L a w . ( See Administration o f Estates.) The county
States and this State are entitled to the rights of citizens of other
judge has original jurisdiction of all matters relating to the administra­
States,
resident here, in so far as they accord to them the privilege
tion of estates of decedents.
of purchasing, holding, and conveying real estate.
P r o t e c t . (See Notes and Bills o f Exchange.)
A p p ea ls. (See Courts.)
R e c o r d s . Records o f deed and mortgages are kept in the office of the
A r b itra tion . Under the law of Georgia disputes and controversies
clerks o f the several circuit courts, and the original must be recorded in
relating
to rights, or property, may be submitted to arbitration.
the county within which the property lies. Wills are required to b e ,


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BANKING AND COMMERCIAL LAW S—GEORGIA.
Arrest. The constitution of Georgia declares that there shall be
no imprisonment for debt. But in an action to recover personal
property 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 oi the court that it is without his power to produce it.
.■^®signments. Assignmets for the benefit of creditors are per­
mitted.
Attachments. A summary process of attachment will lie in
o ew u OWin g •case®:
Where the debtor resides out of the State.
2. Where he is actually removing, or about to remove, without the
limits of the county 3. 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 snail make a fraudulent lien thereon to 'avoid paving his debts
Attachment will lie to recover the purchase money of an article sold
when the debtor is still m the possession of the property. Attach­
ments may issue upon affidavit b y the plaintiff, his agent or attorney,
who must swear that one of the state of facts exists #hich authorize
an attachment, and also as to the amount of the claim. Bond and
security, m double the amount sworn to, must accompany the affidavit
and the officers require personal security. Non-resident corporations
are liable to attachments, and one non-resident may attach the
property of another non-resident in this- State, except for wages
earned without the State.
Banks. Any number of persons, not less than three, m ay' form
a corporation for the purpose of carrying on the business of banking,
ouch corporations, when organized, has 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
au<1 business; to discount bills, notes, or other evidences of
debt; to receive and pay out deposits, with or without interestto 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 bv mortgage or otherwise
on property real or personal. The business of- the corporation shall
be under this management and control of a board of directors, to
consist of not less than three or more than fifteen of the members of
the corporation, who must be owners and holders of one 1or more
shares. No bank shall be chartered without a capital subscription
m 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
be responsible to its creditors to the extent of its capital and its
assets, and each stockholder shall be individually liable for all debts
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 respesctive shares. All corporations doing a banking busiin this state shall ^make to th© State bank examiner, under
oath, statements showing the resources of the bank or corporation,
at the d ose of business on any day specified b y 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 de­
posits. 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. 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.
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
m his own name for their unpaid subscriptions. 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 cor­
respondents 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 deposits, 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. The State has a special lien for all public money
deposited. 1
Bills of Lading and Promissory Notes. A bona fide assignee
of a bill of lading of goods will be protected in his title against the
seller ’s right of stoppage in transit. It will not be necessary to protest
promissory notes 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 banker’ s
office. 3. Where it is left at a bank or banker’ s office for collection.
Accommodation endorsors,’ sureties and endorsors may be sued in
the same county and in the same action with the maker, drawer or
acceptor. Bills of exchange must be accepted in writing to bind
the acceptor. A contract to pay attorney’ s fees cannot be enforced
unless the debtor when served ten days before suit is filed with a
written notice of intention to sue with amount 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. 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 as mortgages to hold
such property as against third parties or innocent purchasers.
Collaterals. The holder of a note as collateral security for a debt
stands upon the same footing as the purchaser.
Property left
in pledge or pawn may be sold at public sale to the highest bidder,
upon thirty days notice.
Corporations. Power to create corporations in this State is vested
in the general assembly and the superior court. Said courts may
grant charters to all corporations except banking, insurance,
canal, navigation, express, and telegraph companies and railroads.
The general assembly may grant charters for the corporations above
enumerated. A charter for a private corporation is obtained b y a
petition to the superior court, setting forth the object, particular
business, corporation name, capital, place of business, time for which


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incorporation is desired, not exceeding twenty vears. The petition
and order granting the same constitute the charter. In such corpora­
tions the liabilities of the_ stockholder is measured by the amount
oi unpaid stock subscription due by him. In the charter of many
banks now organized the rule of personal liability varies. In somebanks stockholders are liable as partners: In others liability exists
under the general rule, v iz : to the extent of twice the amount of stock
neid, and m some banks liability exists only to the extent of stock
and unpaid subscriptions thereon. The payment of 10 per cent,
ol the capital stock is necessary before commencing business. General
powers oi corporations are conferred on all Corporations organized'
in tins state._ All corpprations organized under the laws of the State
°I M B business therein are required to register with the Secretary
oi state and pay one dollar or be liable to a penalty of fifty dollars.
C osts. A deposit of ten dollars is required in courts of record
from non-resident plaintiffs before the filing of suits and a deposit
oi six dollars in all divorce cases.
Courts. The term, jffiisdiction, etc., of the several courts of this
State are as follows: JUSTICE COURTS hold monthly sessions and
tV®ve civil jurisdiction up to one hundred dollars. In criminal matters
they are only committing courts. COURTS OF OR D IN A R Y hold their
sessions monthly and have jurisdiction over wills, administrations of
n n r txttw1r^riTTT^c?1!^110* M administrators, executors and guardians.
^.U,V-NI Y. ,°Ci URTS have monthly and quarterly sessions. Their juris­
diction is limited to controversies not exceeding three hundred dollars.
,
* GUUxi l o hold tour sessions per annum, but the city court of At­
lanta has six terms. The jurisdiction of city courts is unlimited, except
I l i l i i P I s to land and administration of equitable relief.
^ Vi
have jurisdiction of all suits and controversiesand have exclusive jurisdiction in equity powers, divorce cases, and
suits involving titles to land, and on the criminal side exclusive jurisdic­
tion oi all cases involving life or imprisonment in the penitentiary.
I B P .t0 real e»tate in Georgia must be m writing, and
should be executed m the presence of two witnesses, one of whom shall be
an officer authorized for that purpose. They should be recorded in the
omce 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 subseexecution 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
x
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 e p o s itio n 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 usedfor 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 c'ommission is executed. Tlie 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:
State o f......................... )
(Here insert the county and State where
County of......................j
the commission is executed.)
By virtue of a commission from t lie ............. 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 before us, t h is .........day o f
, 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 the postmaster to receipt on the pack­
age, “ Received from one of the commissioners (giving his name) 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 e sc e n t a n d D is tr ib u tio n o f P r o p e r ty . Th’e 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. I f 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

BANKING AND COMMERCIAL L A W S — GEORGIA.

1170

inherit if there he no widow or children, or representatives of children.
The half-hlooa on the paternal side inherit equally with the whole blood.
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. Keal 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.
D iv o r c e s . Total or partial divorces may be granted in this State.
Suits can only be brought in the superior courts, ana 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 years 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.
D o w e r . In this State the wife is entitled to an estate for life in all
lands of which the husband dies seized 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.
E x e cu tio n s. Must follow the judgment or decree from which they
issue. They are good for seven years and may be renewed for a like
period b y entry nulla bona.
E x e m p tio n s a n d H o m e ste a d s. Under the constitution and laws
of Georgia, -each head of a family or guardian, or trustee of a family
of minor children, or of an aged or infirm person, or a person having
care and support of dependant females of any age, who is not the
head of a family, shall have exemption o f realty, or personalty, or
both, to the aggregate of sixteen hundred dollars. 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 ex­
ceeding §300 worth of household and kitchen furniture, and provisions.
The homestead or exemption may be sold b y 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.
F o r e ig n C o r p o r a tio n s. 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, but 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 o f 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. {See Corporations.)
F ra u d . 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 o f 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. 2. 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 o f goods, wares, and merchandise, in exist­
ence or not in esse, to the amount of $50 or more, except the buyer shall
accept part o f the goods sold and actually receive the same or give some­
thing in earnest to bind the bargain or in part payment. 8. An accept­
ance o f a bill of exchange.
G arn ish m en ts. This process may be invoked in any case. Gar­
nishment may be dissolved by giving bond and a third party may
claim a fund held up under garnishment and may release the fund by
giving bond. Wages of laborers, journeymen and mechanics, are ex­
empt from process of garnishment.
I n t e r e s t. 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.
J u d g m e n t s 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. (See Actions.)
J u r is d ic tio n .

(See Title Courts.)

l i c e n s e . No license is required of commercial travelers.
traders must pay license fees.


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Itinerant

Id en s. Undèr 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 it a t io n 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 injury 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 the claims of all persons
not laboring under disability. Infants have seven years to assert their
rights, after becoming twenty-one years of age.
M a rrie d W o m e n . The wife may contract and sue and be sued in
her own name in respect to her separate estate as a femme sole, 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 ortg a g e s. Mortgages are only security for debts. They may
embrace property in the mortgagor’ s possession, or to which he has
a right of possession. They may cover a stock in bulk, but changing
in specifics, and after acquiring property. No particular form is
necessary, but it must be clear that the instrument indicates a lien,
describes the property 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 be executed and attested
in the same manner as deeds, except that in mortgages on personal
property, only the official witness is necessary. Mortgages with power
of sale are valid in Georgia. Homestead and exemption may be
waived in the mortgage. All mortgages on personal property must
be recorded in the county where the mortgagor resides and the prop­
erty is located. Mortgages on land must be recorded in the county
where the land is situated.
N ota ries. 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 . (See Bills of Lading and Promis­
sory Notes.) 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 Dills of exchangeand promissory notes. Endorsements maybe 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 r o b a t e D aw . {See Administration o f Estates, Deeds and Mortgages)
P ro te s ts .

{See Bills o f Lading and Promissory Notes.)

R e c o rd s .

{See Deeds and Mortgages.)

R e d e m p tio n . There is no redemption in this State under judicial
sales except in case of sale of property under tax execution where parties
may redeem in twelve months.
R e p le v y . All property seized under attachment, distress, or other
similar process, may be replevied. Property seized under process and
claimed by the third party may be delivered over upon bond and security
for its forthcoming to answer final judgment of decree.
R e v isio n . {See Courts.)
S ales. 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 the creditors of his purchase. This notice
must be mailed five days before completion of the purchase.
T a x es. Taxes are a lien upon all the property of the debtor, real
or personal, and its lien is preferred as stated in section herein re­
lating 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.
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 m 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, m aybe 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 thè 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

BANKING AND COMMERCIAL I^A W S-ID A H O .

SYNOPSIS OF THE LAWS OF IDAHO
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by R ic h a r d s & H a g a , Attorneys at Law,
Boise City. (See Card in Attorneys' List.)
A c k n o w le d g m e n ts .
All conveyances and other instruments
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 o f deeds for this State, or before any officer
authorized by the laws of this State or Territory to take such acknowl­
edgment. I f without the United States, they must he acknowledged
before a minister or charge d’affairs o f the United States, resident and
accredited m 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 o f the peace, when used in any county other than
that in which he resides, must be accompanied by a certificate, under the
hand and seal o f 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. Form of married woman’s acknowledg­
ment the same as that of a single person. (See Conveyances.)
A c tio n s . There is hut 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 ffid a v its are used only to verify pleadings, to prove service of sum­
mons, notice, or other paper, to obtain provisional remedy.
A lie n s (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 r b it r a t io n . Persons capable o f 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.
A r re sts. 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 personal 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 hi«
creditors.
Assignments and Insolvency. 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
gage or pledge had been given, or where such security, if given, has
been rendered negatory by act o f defendant. Plaintiff must furnish
bond, with two sufficient sureties.
Attachm ent s. 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 judgment. Defendant in
a civil action for recovery of money or damages, under a contract, express
or implied, may be arrested, wjien about to depart from the State with
intent to defraud, or when the debt or obligation was fraudulently con­
tracted.
Banks and Hanking. 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
banks, 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.
Collaterals. No statutory regulation.
C om m u n ity P ro p e r ty . All property acquired after marriage other
than by gift, bequest, devise,’ or descent, is community property.
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
be conveyed only by both husband and wife joining in the execution
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 m an,
ner 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. (See Acknowledgments.)
Corporations. Private corporations maybe formed by three (3) 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,
containing: 1. The name o f theo »rporation. 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 num-


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1171

i. , j
uireciors or trustees, not exceeding fifteen, who must be stock­
holders of the corporation. 6. The amount of the capital stock and the
number of shares into which it is divided. 7. I he amount actually subscribed 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
estimated length of the road or line. 3. 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. 4 Whether meetings of the board shal 1be held within
or without the State. 5. Whether stockholders shall be individually
* •u 1 °l e
corporation. Railroad corporations must have subscnbed, before filing articles. $1,000 per mile; wagon road corporations,
$300 per mile; telegraph corporations, $100 per mile, and the articles
niUSL b® vei()fi,ed by affidavit of president, secretary, or treasurer
named in articles, that such stock has been subscribed. All articles
®^ ^corporation must be filed in the office of the county recorder, in
, tlle principal place of business is located, and a copy thereof certified by the recorder, filed with the Secretary of State. All corporations
must pay between July 15th and August 15th of each year an annual
hcense fee based upon the amount of authorized capital stock, varying
from $10 to $150, and must, in the month of June each year, make all
annual reports to the Secretary of State.
r ° r e ip i . 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
°£ i he-derk H th€jdm rict 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, residing in
the county m which such principal place of business is to be located upon
be served*0688 ^sued by authority of or under any law of this State may
and Jurisdiction. 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- and he
may hold such special terms-as he deems proper and necessary. District
courts have original jurisdiction in all civil cases. Probate Courts are
field m each county once a month, and have jurisdiction up to $500 in
civil cases, and concurrent jurisdiction with justice’s courts in all crim­
inal cases. Justice’ s jurisdiction, $300.
H ays o f G race abolished by the statute.
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.
J B yvl‘,u
m
. v u ru e . mamagtj may ue annulled lux auv ui uue iujuuwiii£ causes
existing at time of marriage: 1. Person when married was not of the age of
legal 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
alter attaining the age of consent such party for any time freelv 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 colisent of either party
was obtained by fraud, unless such party afterward, with full knowledge
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
wire. 6. That either party was, at the time of the marriage, physically incapable 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
M
Divorces may be granted for any of the following causes- 1
Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. W illful negl
lect. 5. Habitual intemperance. 6. Conviction of felony 7 Perm!
nent insanity. Persons applying for divorce must have been a resident of
this State for six months immediately preceding the commencement of
such action, and cannot remarry within six months after granting of
divorce.
6
s
D o w e r does not exist.
E m p lo y e r s a n d E m p lo y e s . All persons employing mechanics or
laborers in working mines, erecting or repairing buildings, constructing
roads, 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 codv
of this statement must be posted at the place where work is prosecuteu.
E x e cu tio n 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.
y
E x e m p t io 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 familv
for six months; certain tarm animals, etc., with food for six monthsand water right for 160 inches, when actually used in irrigation •also crops
growing or grown on fifty acres of land, leased, owned or possessed bv
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.
’
G arn ish m en t. 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. (See Laws 1907 pl60.)
H u sb a n d an d W if e . 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

1172

' ;

BANKING AND COMMERCIAL LAW S—ILLINOIS.

Redem ption. Property may be redeemed within one year after
remain her sole and separate property, to the same extent and with the same
sale, on paying purchaser amount paid on sale and ten per cent, addi­
effect as the property of a husband similarly acquired. The wife has the
tional.
Property may be redeemed- by successive redemptioners within
management, control, and absolute power of disposition of her separate
sixty days from last redemption, and within one year from sale, by pay­
property, to the same extent and with like effect as a married man m$y have
ing
an
additional
four per cent. In cases of tax sales, the owner may
in relation to his real and personal property. The separate property of the
redeem in three years.
wife is not liable for the debts of her husband, hut is liable for her own
debts contracted before or after marriage. There is no estate by courtesy
R eplevin. Action of, must be brought within three years from time
or in dower. Marriage settlements are provided for, and when properly exe­
it accrues. Plaintiff may sue for the possession without claiming im­
cuted and recorded may vary the statute governing the relations of husband
mediate possession, or he may claim immediate possession at time of
and wife concerning property rights. Minors may execute valid marriage
commencing suit or afterward. Affidavit showing that plaintiff is the
owner, the detention, the unlawfulness of the detention!, etc., and bond
settlements.
with sureties required to obtain immediate possession. Defendant may
Interest. Where there is no express contract in writing fixing a
execute undertaking, with approved sureties, for the retention of the prop­
definite rate of interest, the rate is 7 per cent per annum. Parties may
erty, and that it will be forthcoming, subject to the order of the court in
agree in writing for interest at the rate of 12 per cent per annum. Judg­
which the action is pending, and thereupon retain the possession of the
ments bear interest at the rate of 7 per cent per annum.
property involved.
J u d g m e n ts are liens on all real estate of debtor within the county,
S ea ls. The distinctions between sealed and unsealed instruments are
from time of docketing, and may be extended to other counties by filing
abolished.
transcript in recorder’s office. Lien continues two years. Justice’ s court
T a x e s. The locus of property for taxation relates to the second Monday
judgments become liens when certified and recbrded. May be revived by
of January, if within the State, and if not to the day of assessment, and
issuing execution within limitation.
is a lien from and after that date. The period of redemption is three
years.
L ie n s, M e ch a n ic s ’ . Every person performing labor upon or furnish­
ing materials used in the construction or repair of any mining claim,
Trust Companies. {See Guaranty Companies.)
building, or other improvement, has a lien thereon. Farm laborers have
W ills. Every person over the age of eighteen years, and of sound
lien upon the crop and products thereof, upon which they bestow
mind, may make a will. Every will, other than a nuncupative will, must
labor. All liens must he set forth by a statement in writing, show­
be in writing, and every will other than an olographic and a nuncupative
ing the amount due, the facts connected with the matter, that there
will, must be executed by the testator subscribing thereto or some person
are no credits due on the claim, or offsets against the same; which state­
by his direction, which must be done in the presence of two attesting wit­
ment must be verified by the claimant, and recorded in the office of the
nesses, each of whom must sign his name and state that the testator
county recorder, if on claim of original contractor, within ninety days, if
requested him to witness the testator’s signature, and the testator must
on claim of other persons, within sixty days from the time of the comple­
also declare in the presence of the witnesses that such is his last will and
tion of the structure the Completion of the labor, or the furnishing of the
testament.
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 and open accounts,
four years; instruments in, writing, five years; judgments and decrees,
six years. Revivor: Only by instrument in writing; part payment does
not.
Married W om en . All property, real or personal, acquired before
marriage and acquired after marriage, by gift, bequest, devise, or descent,
SYNOPSIS OF THE LAWS OF ILLINOIS
wife’s separate property; all other property acquired after marriage,
common property; wife must record inventory of separate property. No
RELATING- TO
estate as tenant by courtesv allowed the husband, nor dower to the wife.
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
BANKING AND COMMERCIAL USAGES.
case no will, goes to heirs of deceased.
Prepared and Revised by Messrs. C h a t t y B r o s . & J a r v is .
M in es a n d M in in g . (Principal regulations under United States
Attorneys at Law, Chicago. {See Card in Attorneys' List.)
Statutes.) Quartz locations may be 1,500 feet long and 300 feet on
each side of the middle of lode. Monuments must be established at
A c k n o w le d g m e n ts or proof of real estate instruments may be
all exterior angles of claim. Claim should be tied to some natural or per­
before one of the following courts or officers: 1. Within this State,
manent monument. Copy of location notice must be posted at discovery
master, notary, justice, United States commissioner, county clerk ; or of
within three days after discovery. Notice of location must be recorded
court of record, judge, justice, clerk, or deputy of such court. The
within ninety days after location; within sixty days ten-foot shaft must
official should certify that-----------------“ personally known to me to be
be sunk or its equivalent. Location notice must contain name of locator,
the same person whose nam e-------------------- subscribed to the foregoing
name of claim, date of discovery, dimensions, distance from some perma­
Instrument, appeared before me this day in person, and acknowledged
nent natural, or artificial object; name of mining district, county,and State.
that he signed, sealed, and delivered the said Instrument as----------------Placer locations made in same manner as quartz locations, except that
free and voluntary act, for the uses and purposes therein set forth,
within fifteen days after making location, locator must excavate not less
including the release and waiver of the right of homestead.” 2. Out­
than 100 cubic feet for purpose of prospecting claim, and must record
side this State, a justice, notary, master, United States commissioner,
notice of location within thirty days after making location.
commissioner of deeds, mayor, county clerk; or judge, justice, clerk,
M o rtg a g e s. A real estate mortgage must be acknowledged and certi­
or deputy of any United States court; or any judge, justice, clerk,
fied and recorded in like manner as conveyances and deeds of real prop­
deputy, prothonotary, surrgoate, or registrar of supreme, circuit,
erty and is foreclosed by action in the district court. Chattel Mortgages
superior, district, county, common pleas, probate, orphans, or surrogate’»
must be acknowledged as real estate mortgages, and sworn to by the
court .of any State, territory, or dependency. In any dependency may be
mortgagor that the same is made in good faith without any design to
also before a commissioned military officer ; justice or master must attach
hinder, delay, or defraud creditors. May be filed or recorded. Survives
certificate of court clerk.
as long as the debt. Mortgages are discharged by a satisfaction duly exe­
A c t io n s . The common law forms of action and pleadings are used,
cuted and recorded, or by entry on margin of this record, witnessed by
but are in some respects modified by statute. Non-resident plaintiffs
recorder.
must give bonds for costs.
Adm inistration of Estates is had in the county courts, except in
N eg o tia b le In stru m e n ts. Negotiable instruments are governed by
some larger counties where probate courts are established. Six weeks
the rules of the Uniform Negotiable Instrument Law, as recommended
|
notice
must be given for proof of claims. Claims not presented within
by the American Bar Association. (Sess. Laws 1903, p. 380.)
one year from date of letters shall be harried unless creditors find other
N o ta r ie s , when requested, to demand acceptance and payment of
estate
not
inventoried or accounted for within that time. Infants, persons
foreign, domestic, and inland bills of exchange or promissory notes and
of unsound mind, persons without the United States in the employ of
protest the same for non-acceptance and non-payment; exercise such other
the
United
States or of this state have one year to exhibit claim after
powers and duties as by the law of nations and commercial usage, or by the
disability removed.
laws o f any other Territory, State, government, or country may be perform ed
Administration of intestate estate is granted, 1st, to surviving hus­
by notaries. Attach acknowledgments or proof of powers of attorney,
band or wife, 2d, to child, 3d, to father, 4th, to mother, 5th. to brothers,
mortgages, deeds, grants, transfers, and other instruments of writing exe­
6th, to sisters, 7th, to grandchildren, 8th, to next of kin, 9th. to public
cuted by any person. Give certificate of such proof or acknowledgment;
administrator or any creditor. A relative entitled to administer may
to take depositions, affidavits, and administer oaths and affirmations in all
nominate a competent person to he appointed in his or her stead.
matters incident to duties of the office. To keep a record of all official
Preference and right to nominate must be exercised within sixty days,
acts- when requested, and upon payment of his fees therefor, to make and
otherwise public administrator shall act. When several are equally
give’a Certified copy o f any record in his office; to provide and keep an
entitled to administer, the court may select preferring relatives of whole
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
to those of half blood. Non-resident executors and administrator»
authenticate with his official seal all official acts.
may sue in this State.
A ffid a v its may be taken or oaths administered by any judge, master
Power of A ttorn ey. Powers of attorney for grants o f real estate
and to execute a mortgage must be in writing, subscribed, acknowledged
in chancery, clerk of court, justice, police magistrate, or notary public.
Any oath authorized or required to be made out of the State, may be
or proved, certified and recorded as other instruments affecting real prop­
erty Powers of attorney which have been recorded must be revoked by
administered by any officer authorized by the law of the State where it
revocation in writing, acknowledged, proved, certified, and recorded the
is administered, and if such officer have a seal, his certificate under his
official seal that he is authorized by law to administer said oath, shall be
same as original power.
received as prima facie evidence of his authority to administer oaths.
Probate Law. Probate courts have jurisdiction to open and receive
A lie n s . By statute of July 1, 1897, all aliens may acquire and hold,
proof of wills and admit them to proof; to grant letters testamentary and
and convey, or devise, or otherwise alienate real property, subject in
guardianship and revoke same; appoint appraisers of estates, compel^executors etc to render accounts; order sale of property of estates and minors;
certain provisions and restrictions.
order payment of debts due from estates, order and regulate distribution
A rbitration. The parties to any suit pending in any court of record
o f property or estates; compel attendance of witnesses and production of all
may agree to arbitrate, whereupon an order to that effect will be entered.
instruments pertaining to estates and property of minors, and make such
Arrest. One about to commence suit to recover a claim fraudu­
orders as may be necessary to exercise all powers conferred. Proceedings
lently incurred or where a debtor has fraudulently concealed "or dis­
o f this court are construed the same as courts of general jurisdiction and
posed
of property may have capias issued for his arrest.
like force given to its records.
A ssignm ents. Voluntary assignments for the benefit of creditors
Protest. {See Notaries.)
without references are administered in the county courts. No assign­
R e c o r d s . All deeds, mortgages, real and chattel, and instruments af­
ment of wages shall be valid unless acknowledged before a justice or
fecting the title to lands must be recorded. Inventory ot the separate per­
municipal court clerk and entered on docket and within three days
sonal estate of a married woman when recorded, becomes prima fa cie evi­
a copy be served upon the party owing the wages; and if by a married
dence that the property therein enumerated is her separate property.
person assignment must be signed and acknowledged by both husband
Judgment empowering a married woman 'to act as a sole trader must be
ahd wife. Assignment void if debt tainted with usury. Assignment
recorded in the county recorder’s office. In case o f levy of attachment
of wages to be earned in whole or in part more than six months in the
upon real estate, a copy of the writ, with a copy of the notice of levy at­
future is void.
tached thereto, must be filed in the office of the county recorder.


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BANKING AND COMMERCIAL LAWS—ILLINOIS.
i w S s r f S ay i8sue out ol courts o f record on claims
exceeding $30, when the debtor is non-resident; conceals himself, or
stands m defiance, so that process can not be served on him: or has
departed from this State with the intention o f removing his effects
therefrom, or if about to do so; or has, within two years, fraudulently
conveyed, assigned, concealed, or disposed of his property, or a part
thereof so as to hinder or delay creditors; oris about fraudulently to
conceal, assign, or otherwise dispose of his property or effects, so as to
hinder or delay creditors; or the debt was fraudulently contracted bv
statements m writing. Before writ can issue, plaintiff, his agent, or
attorney, must make affidavit to one or more of these facts, and give
bond, m double the amount of claim. (See Garnishment.')
B a n k s . There is nothing special in the statutes about National banks,
except that shares of stock in such as may be located in this State are
listed and taxed as shares m State banks and as other personal property
even though the owner be non-resident. Each bank is required to keen
a list of names and residences o f its stockholders.
. 1bufiving^ associations may be formed to do general banking except
issuing bills as money; may make loans on personal and real estate
security and accept and execute trusts. Capital required is graded*
S Ì 168 °1 5’000 or less’ $25,000; up to 10,000, $50,000; up to 50,000, $100,1
000, and 50,000 or more, $200,000. The state auditor issues certificate
o f organization, which must be recorded in proper county. Any impair­
ment of capital must be made good on notice from him.
June 4,1897, the statute was amended, as follows: “ The total liabili­
ties to any association, of any person, or o f any company or firm, for
money borrowed, including in the liabilities of a company or firm the
liabilities of the several members thereof, shall at no time exceed onetenth part of the amount of capital o f such association actually paid in.
But the discount o f bills of exchange drawn in' good faith against actually
existing values, and the discount of commercial or business papers
actually owned by the person negotiating the sam'e, shall not be con­
sidered as money borrowed. Every such loan made in violation o f the
provisions hereof, shall be due and payable according to its terms, and
the remedy for the recovery of any money loaned in violation to the pro­
visions hereof, or for the enforcement of any agreement, collateral or
otherwise, made in connection with any such loan, shall not be held to be
impaired, affected, or prohibited by reason of such violation, but such
remedy shall exist notwithstanding the same. But every director of any
such association who shall violate, or participate in, or assent to such
violation, or who shall permit any of the officers, agents, or servants of
the association to violate the provisions hereof, shall be held liable in his
personal and individual capacity for all damages which the association,
Its shareholders, or any other person shall have sustained in consequence
of such violation.” A banker,.oflieer, or person doing banking who re­
ceives deposits knowing concern to be insolvent shall, if deposit be lost,
be fined double the sum lost and may be imprisoned one to two years.
C ollatera ls. There is no special provision relating to them.
C on d itio n a l S ales, C o n sig n m e n ts. Conditional sales and secret
agreements are good as between the parties, but where personal
property is sold and possession given to vendee conditions or secret
liens are held fraudulent as to creditors and purchasers in good faith.
The safe course is to preserve a lien' by chattel mortgage (see Chattel
Mortgages). Consignments of goods for sale if in good faith are not
within the rule and the consignor is protected. If a commission mer­
chant or other person selling on commission shall convert to his own
use or fail to pay over proceeds on demand where the property has
been so consigned he is liable to fine or imprisonment or both and for
double value of the property.
C o n v e y a n ce s . A person may convey title to lands, although not
in possession, and although the same be in adverse possession. No estate
in joint tenancy, except to executors and trustees, is created by deed
unless it be expressly so declared, otherwise it will be a tenancy in com­
mon. The words “ conveys and warrants ” are sufficient to convey title in
fee simple and to warrant that the grantor was lawfully seized with full
right to convey; that the land was free from incumbrance, and that
grantee have quiet and peaceable-possession, and that grantor shall defend
title. The words “ conveys and quit claims” are sufficient to convey all
the grantor’ s interest. The words “ mortgage and warrant” are sufficient
to mortgage the fee with full covenants of general warranty. The home­
stead right is not waived except apt words be used. A married woman
above eighteen joining with husband in any deed, mortgage, power of
attorney or other writing, shall be bound in respect to her title the same
as if she were single. No covenant or warranty is broken by the existence
of a highway upon the land conveyed. (See Acknowledgments.)
C o r p o r a tio n s are formed under the general Statue for lawful pur­
poses except banking, insurance, real estate, brokerage, railroads, and
money-lending; separate acts provide for these. At least one-half of
capital stock must be reported paid in, and also what disposition has
been made of that not paid in, before charter issues. Stockholders vote
in person or by proxy, each share one vote; shares not less than $10 or
more than $100; cumulative voting allowed; final certificate or charter
to be recorded in company’s own county; may hold only necessary real
estate; directors not less than three nor more than 11; make by-laws and
control business; no stock liability except for unpaid par value; directors
and officers who assent to indebtedness exceeding amount o f capital
stock are liable for the excess ; stockholder may examine books; certif­
icates assignable in blank and pass by delivery; stock is personalty and
may be attached or taken in execution unless certificate has been sold or
pledged. . Every corporation except building and loan, railroad, bank­
ing, and insurance shall in each February renort to secretary of state
location of office, names and residences of officers, when terms expire
and nature of active business. Failure to do so is prima facie evidence
of being out o f business and secretary shall record cancellation of
charter, and shall file annually with recorder of each county, list and
particulars of such reports, and all cancellations; may be reinstated
within one year by paying $20, and making proper reDorts to date;
charters already forfeited of corporations not for pecuniary profit, in­
cluding religious corporations, may be restored if proper application is
made before March 1,1906.
A Foreign Corporation other than insurance, building and loan, and
surety company shall make sworn application to secretary of state,
naming its proposed business, amount of capital stock and whether it
is to operate in any other State or country, the proportion of its busi­
ness to be done in this State, what assets and value thereof will be used
in this State, the amount paid in upon its capital stock and if any stock
is not paid in, what disposition is to be made thereof; names and resi­
dences of president, secretary and treasurer, location of office, name of
attorney in fact who can be served with summons, and if required by
secretary of state, names and residences of all stockholders. Shall
file copy of charter or certificate. It has no other or greater powers
than domestic corporations.


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1173

C ourts. Terms and Jurisdiction. 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 superior court of jurisdiction concurrent with that of circuit
courts, and has also a special criminal court, each with monthly terms.
The Municipal Court of Chicago is a court of record, with a chief
justice and twenty-seven associate judges.
D a y s o f G ra ce are abolished. (See Negotiable Instruments.)
D ep o sitio n s. The testimony ol 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
taking 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 o f such attendance, and to 6 cents for every mile necessarily traveled
in going and returning.
D e s c e n t. 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 ho 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 of
brothers 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. An illegitimate child becomes legitimate if the
parents inter-marry.
D iv o r ce » may be granted for impotency; former wife or husband
living; adultery; desertion or habitual drunkenness two years; attempt on
the life 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.
D o w e r . 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 title 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 lien 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 x e c u t io n may issue immediately after rendition o f judgment,
and to any county. Executions are liens on personal property from date
of delivery of writ to officer. 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 after the sale. If he fail to redeem, any decree
or judgment creditor may redeem during next three months.
E x e m p t io n 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.
F raud. 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 or
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.
F rauds a n d P e rju r ie s . 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 lor 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

1174

BANKING AND COMMERCIAL LAW S—ILLINOIS.

agreement is in writing signed by Mm 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, an,d 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 o f trust in lands shall be in writing, except resulting trusts or
trusts created by implication or operation of law.

where mortgagor resides, or, if in Chicago,_before 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
a county judge. If mortgagor is resident of this State the official shall
docket names of parties and description of property.

Must be recorded in mortgagor’s county, but if non-resident then in
county where property is situated; lien is then good for three years
Garnishm ent. Process may issue upon judgment, and in attach­
or until debt matures if within three years, but may be extended if
ment, to hold whatever a third party may owe, or have belonging to
parties shall file in recorder’s office and with justice, or his successor,
debtor. Garnishee can not be held as the maker or endorser of negotiable
on whose docket the mortgage was entered, an affidavit stating mort­
taper unless same is past due and in debtor’s hands at time of service or
gagee’s interest in the property and amount unpaid of the debt and
the duration of the extension, not over one year. Such affidavit
udgment. Executors and administrators are subject to garnishment,
but no judgment can be taken against them until after order of distribu­
must be filed within thirty days next preceding the expiration of such
tion in probate. One having a claim against a resident debtor shall not
three years or if debt matures within such three years then within
transfer or send it beyond this State to collect by garnishment out of | thirty days next preceding the maturity of the debt.
debtor’s wages to deprive him of Ms exemption, when the garnishee can
N eg otia b le In stru m en ts. Must be payable in money and must
be served in this State. Wages of head of family residing with same
contam an unconditional promise to pay a sum certain on demand or
are exempt to amount of $15. Non-resident debtors are protected from
at
a fixed or determinable future time; must be payable to a specified
like proceedings in our courts.
person or to bearer; may be in installments and contain provision
H u sb a n d a n d W if e . Ii sued together she may defend for her own
that on any default the whole shall become due; with exchange fixed
right, and if either neglect to defend, the other may defend for both. If he
or current rate, interest and attorney’s fees for collection; may
desert his family, she may prosecute or defend in his name, and he has the
authorize sale o f collaterals and confession of judgment; if it reads
same right if she desert. Neither is liable for debts of the other before or
“ I promise to pay” all signers are jointly and severally liable; may be
after marriage, nor shall the earnings or property o f either, nor the income
payable at fixed time after date or sight, or after specified certain
thereof, be so liable. Neither shall be entitled to recover compensation
event, but not upon a contingency; cannot waive exemption from
for labor or services rendered for the other. If either unlawfully retains
execution; need not specify value given nor place where drawn or
control of the other’s property, before or after marriage, the owner
payable; if issued, accepted, or endorsed when overdue it is payable
may maintain action therefor the same as if unmarried. If either abandons
on demand; may be payable to two or more payees jointly, or one or
the other and leaves the State for one year without providing for support
more of several payees, or to the estate of a deceased person; absence
of the family, or is imprisoned in the penitentiary, the court, where the
or failure of consideration a defense against one not a holder in due
remaining one resides, may authorize him or her to manage, control, sell,
course and partial failure a defense pro tanto. One not a party to
and encumber the property of the other for the support of the family and
instrument placing a signature in blank before delivery becomes an.
to pay the other’ s debts, or to pay debts for the family’s support. Either
endorser. Every endorser engages that on due presentment it shall
may constitute the other an attorney in fact to dispose of property.
be honored or that he will pay the amount to holder or any subsequent
Expenses of family and cMldren’s education are chargeable upon property
endorser who may be compelled to pay; no days of grace; when
of both or either, and they may be sued separately or jointly. It she be
maturity falls on Sunday or holiday payment is due on next business
deserted or live separate from him without her fault she may sue in equity J day; if due on Saturday must be presented on next business day, but
for separate maintenance.
if payable on demand holder may present same before noon on Sat­
urday. Fraud and circumvention in procuring execution of instru­
In terest. Legal rate, 5 per cent, but agreement in writing may be
ment is a defense against any holder.
made for 7 per cent or less. Forfeiture 'of all interest is penalty for
usury. Legal rate is collectible on moneys due on all instruments in
Presentment. Is not necessary to charge one primarily liable ex­
writing; on money lent or advanced for use o f another; on money due
cept in case of bank notes; if payable at special place ability and
on settlement of account from day of ascertaining balance; on money
willingness
to pay it there at maturity is equivalent to a tender;
received to use o f another and retained without owner’ s knowledge; on
not on demand it must be presented on day it falls due, if on demand
money withheld by unreasonable and vexatious delay, and onjudgments. I if
then
within
a reasonable time after its issue, except a bill of exchange
In computations of time, interest, and discounts upon negotiable instru­
must be presented within reasonable time after its last negotiation.
ments, a month is construed to mean a calendar month, and a year to
Alterations,
fraudulent or material, do not affect original instru­
consist o f twelve calendar months; and for any number o f days less
ment in hands of innocent holder in due course.
than a month a day is considered a thirtieth part of a month.
Acceptance. Unconditional promise in writing to accept a bill
J u d g m e n t s of courts o f record are a lien on real estate situated in
before or after drawn is good in favor of all who take it upon faith
the county, for seven years, and may be made a lien on real estate in
thereof for value. The holder may decline a qualified acceptance
any other county, by filing a transcript thereof in that county. When
and treat the bill as dishonored; if he takes qualified acceptance
execution is not issued within one year, it thereafter is no lien; but
drawer and endorsers are discharged.
execution may issue within any time within seven years, and shall
Protect of foreign bills may be made by notary public or b y any
become a lien from its delivery to the proper officer. Judgment of
respectable
resident of the place in presence of two or more credible
court of record may be revived by scire facias at any time within
witnesses; bill of exchange does not operate to assign funds in hands
twenty years. A judgment of a justice of the peace may be made
of
drawee
and
he is. not liable unless he accepts.
a lien on real estate in any county by filing a transcript thereof in the
circuit court.
Promissory Note must be unconditional promise in writing to
pay on demand or at fixed or determinable time a sum certain in
A federal court judgment is a lien on real estate in the county where
money to order or bearer, and where drawn to maker’ s own order is
rendered and becomes a lien in any other county by recording therein
not complete until endorsed by him ; may be in installments.
a proper transcript of the judgment. A municipal court judgment
becomes a lien on real estate throughout Cook County by filing in
A Check, is a bill of exchange on_a bank payable on demand; must
recorder’s office a proper transcript of the judgment.
be presented within reasonable time after issue and if dishonored
notice must be given or drawer is discharged to the extent of loss
L ie n s. Mechanics, material men, architects, or superintendents have
caused by delay; does not operate to assign any part of drawer’s
a lien for work and materials furnished in building, altering, repairing, or
funds in bank and bank is not liable unless it accepts or certifies. If
ornamenting any building. A sub-contractor has lien. Hotels and board­
holder has check certified the drawer and endorsers are discharged.
ing houses have a hen upon “ baggage and other valuables” of guests
The present negotiable instrument law pf Illinois consisting of 196
or boarders for “ accommodations, board, and lodgings, and such extras
sections went into force July 1, 1907. Its provisions do not apply
as are furnished at their request.” Stable keepers and persons have a
to instruments made prior thereto. The act so materially changes
lien upon horses, carriages, and harness for proper charges for keeping.
the law in this State as to suggest the propriety of special examina­
Agisters and persons keeping or pasturing domestic animals have a lien
tion in any doubtful case.
for proper charges.
Pow er of A ttorney. Almost arfy act which a party may perform
L im it a t io n o f Suits. Action for slander or libel, one year.
may
be performed by an attorney in fact. A non-resident corporation may
Damages for injury to person, false imprisonment, malicious prosecu­
authorize by power of attorney, any business done here which it could do
tion, statutory penalty, abduction, seduction, criminal conversation, two
if
resident,
and such authority need not be under seal. A scroll by the
years. Unwritten contracts, express or implied, awards o f arbitration,
agent will be treated as the corporate seal of the company. TMs does not
injury to real or personal property to recover personal property, or
apply to railroad corporations. If land is to be conveyed by an attorney
damages for detention, or conversion thereof, and all civil actions not
in fact the power of attorney should be under seal.
otherwise provided for, including actions on foreign judgments, five
years. Bonds, notes, bills, written leases, and contracts, or other
Probate Law. (See Administration o f Estates.)
evidences of indebtedness in writing, ten years. If any payment or new
Protest. (See Negotiable Instruments.)
promise shall be in writing on any bond, bill, note, lease or contract
R eplevin. Goods or chattels wrongfully taken or detained may be
within or after said period ten years, then limitation extended ten
replevied by owner or party entitled to possession. In justice court
years longer. If cause o f action arises out of this State, and by the laws
plaintiff or agent. Replevin bond must be double the value of prop­
o f that State action can not be maintained, no action can he maintained
erty to be replevied. If dismissed without trial, suit may be brought
here. J udgment of court o f record in tMs State, and actions for the
on the bond, in which suit, merits may be tried.
recovery o f lands are barred after twenty years, and the latter in
seven years in some cases. If one fraudulently conceals a cause of action
T a x es for the year are payable after December 1st, and the delinquent
against himself, he may be sued within five years after discovery of the
list is delivered to county collector about March 10th, following. Delin­
fraud. If action is stayed by injunction, such time shall be deducted
quent taxes bear interest at 1 per cent per month after May 1st following.
from the running of the statute.
At tax sales, the entire tract is sold to the person “ offering to pay the
amount due on each tract or lot for' the least percentage thereon as
L im ited Partnership. May consist of one or more general partners
penalty.” No bid for penalty shall exceed 25 per cent of amount of taxes.
and one or more special. Special shall contribute specific amount of
Redemption. To redeem, there must be paid, if within six months, the
capital or property at cash value, and be not liable for debts beyond that
amount. General partners must transact the business.
amount of tax and penalty; during second six months, the tax and twice
the penalty; during third six months, the tax and three times the penalty,
M a rrie d W o m e n . A married woman may sue, be sued, possess
and during fourth six months, the tax and four times the penalty. Must
her own earnings, contract, incur liabilities, purchase, sell and hold
also pay all taxes and assessments accruing after sale, and 7 per cent
personalty, and own real estate to same extent, as if unmarried.
thereon.
If not redeemed within two years, purchaser is entitled to tax
Husband not liable for her debts or torts, unless where he would be
deed which is sometimes good.
jointly liable if not married. She can not enter partnership without
husband’s consent unless he has abandoned her, or be incapable of
W a g e s . (See Assignments, Garnishments, Exemptions.)
consenting. No transfer o f chattels from one to other is valid as
W ills . Last wills may be made by males of twenty-one and females of
against third parties, unless in writing, acknowledged and recorded.
eighteen. Must be signed personally or by direction of testator in his
Both are liable for family expenses.
presence, and attested by at least two witnesses in the presence of
M o rtg a g e s on real estate are executed same as deeds. Husband
each other and of the testator. At probate, two must testify that
and wife must join to bar dower or homestead except to secure purchase
they saw it signed, or that it was acknowledged by the testator and
money. Mortgages and trust deeds with power of sale must be foreclosed
that he was of sound mind and memory. If witness has removed to
parts unknown, be insane, or has died, his hand-writing may be proven.
in chancery. No sale allowed under such power. Chattel Mortgages
Probating a will is not conclusive, and bill in chancery may be filed within
shall be acknowledged before a justice or the county judge of county

f


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BANKING AND COMMERCIAL LAWS—INDIANA.
t. 0. set 1 »side. Foreign wills admitted to probate in county
t
may, t a e owIned lands- Wills made in one state, or copies
duly proven from the record may be recorded here. A nuncupative will
is good if reduced to writing witbin twenty days after making thereof
and ten days after testator’s death. It requires two witnesses who heard’
testator pronounce the words, and two others must testify that will was
letterS 1
« d
until after

SYNOPSIS OP THE LAWS OP INDIANA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. P i c k e n s , M o o r e s , D a v id s o n a n d
P i c k e n s , Attorneys at Law, Indianapolis. (SeeCard in Attorneys' List.)
A cknow ledgm ents. All conveyances of real estate, except leases
for less than three years, must be in writing, and acknowledged and
recorded within forty-five days from their execution or they will not
bind third parties. Within the State acknowledgments may he taken
before a judge or clerk of a court of record, justice of the peace, auditor
recorder, notary public, or mayor o f a city, and in othei States and Ter­
ritories before the like officers, or a commissioner of deeds for Indiana.
I *1aJjy
p0UIlt'J'y? before a minister, charge d’affaires or consul of
the United States. If such acknowledgment or proof is in some other
than the English language, 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 executed according to the laws of such foreign
country, and that the officer has legal authority to certify to the proof or
acknowledgment and the meaning of his certificate, if made in a foreign
language. Wife must join in deeds and mortgages of husband’s lands
m order to carry her inchoate one-third interest in husband’ s lands No
separate acknowledgment o f wife necessary in order to convey her
inchoate interest in husband’s lands, although she must acknowledge.
A ction s._ The distinctions betweenlaw and equity are abolished The
statute provides but one form of action. Pleadings are governed by code.
Non-resident plaintiffs must give bona to secure costs.
Adm inistration o f Estates. Except in Marion county, which has
a separate Probate Court, the Circuit Court has exclusive probate juris­
diction. In cases of intestacy letters are granted in following order- 1
Widow or widower. 2. Next o f kin. 3. Largest resident creditor. 'Let­
ters or administration shall be granted in the county: 1. Where intestate
was inhabitant at time of death. 2. Where not being inhabitant of the
btate he leaves assets. Where an intestate, not being an inhabitant, shall
die out of the State, leaving assets in several counties, letters may be
granted in any one 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. Letters cannot issue to a married woman without her hus­
band’s consent in writing. Such consent makes husband jointly liable
« n i j v i t g l Preference is given to foreign executor of a decedent not an
inhabitant of State, if, before letters are granted in this State, it ap­
pears 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 brougbt against an estate for
any claim against the decedent; but the holder thereof, whether the claim
shall file a, succinct and (definite statement thereof in the
office oi the clerk c f the court, 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. I f claim be secured
hya lien, the lien shall be particularly set forth. The claim must be filed
within one year from the notice of the administrator's appointment or
claimant must pay costs; and if not filed at least thirtydays 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 property received by
them, to any unpaid creditor who six months prior to the final settlement
WHS insane, an infant, or out of the State,— suit to be brought within one
year pf removal of disability, and if upon claim of non-resident creditor
withm two years of the settlement o f the estate.
Affidavits may be taken before any officer qualified to take acknowleagments (see above.) Date of expiration o f officer’s commission must
be certified.
A lien s. 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 testate not exceeding 320 acres; lands in excess of that amount
they must convey within five years or suffer escheat as to such excess.
, A r^esi
D ebt. Defendant in a civil action may be arrested and
Haii
amount claimed, at any time before judgment, on
affidavit that he is about to leave the State, taking with him property subject to execution, with intent to delay or defraud the plaintiff Bond is
required of plaintiff.
Assignm ents and Insolvency. Any debtor may make a general
assignment of all property in trust for benefit of all bona fide
creditors. This trust is administered under the direction of the county
court. Dividends are allowed on all claims allowed by the trustee or
court. Debtor is not discharged from bis liabilities.
A ttach m en t may issue against the property o f 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, and a bond to pay damages
if the proceedings be wrongful or oppressive. Creditors who file under
the original attachment, before final judgment, are required to furnish a
ike affidavit and bond, and all share pro rata in the proceeds of the
ttached property. The wages of a resident householder, not exceeding
one month at any one time, are exempt so long as debtor remains in such
employment. It is a misdemeanor to send claims out of the State to be
collected by attachment, or garnishment, when creditor, debtor and
person owing for earnings intended to.be reached are all within the lurisdiction o f the court of this State. The collection of claims so sent mav
be enjoined.
,
3
Banks, P riv a te . Act of 1907 (in effect Dec. 1, 1907), regulating pri­
vate banking applies to any one who may use the word “ bank” in his
business. Capital must be at least $10,000, not more than one third of
which may be invested in the bank building. A ll real estate must be
held m name of bank. Bank cannot invest in real estate except


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1175

in realizing on doubtful claim. Statement must be filed with state
auditor showing copy .o f articles of partnership acknowledged (one
o f the partners io be resident of the state); location, amount of capital,

net worth of partners to be double capital paid in, names o f
officers: .List of officers must be posted in bank. Two reports of resources
and liabilities are called for each year by auditor and published in local
newspaper. Examination of bank made at least annually by auditor
Statement of property held in trust by bank must be filed in county
recorder s office. Depositors have lien on assets. Jurisdiction over allpersons interested is obtained by process served on officer in charge.
B a n k s, Savings. Governed by a general statute which regulates in
minute uetaii the investments and conduct of business. Savings banksmay purchase, hold, and convey real estate for the following purposes,
ana none other: For the location of banking house; real etate mortgaged
y? 11 V1 good faith for money loaned, or upon which it shall have purcnased a mortgage; real estate taken upon judgments and decrees on
bank ° f
bank’ or Purciiaeed to prevent loss on claims held by the
S ta te. Regulated hy a général banking law. The auditor o f
tne State, appoints a State bank examiner who shall not be a director or
other officer of the hank, and shall have power to make a thorough
examination into all the affairs of the bank, and, in doing so, to examine
officers and agents thereof on oath. The examiner reports in
detail the condition of the bank from time to time. The State banks must
mane not less than five reports each year, verified bv the president, or
other managing agent, which reports must exhibit the resources and liabilmes at the close of business on any past day to he by the auditor specified,
I he report so required, must be published in a newspapei where the bank
is established, or, if there is no newspaper in the place, then in one pub­
lished nearest thereto in the same county or an adjoining countv. The
auditor may require special reports from any bank, whenever, in his
judgment, it shall be necessary in order to a full knowledge of its con-S l I R a bank failing to make such report shall be subject to a pen­
alty of $100 for each day that it delays to make and transmit the same. ,,J U 1 U S U -I
a n a Jrrom 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 of
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 beshown that he was insolvent at the time of such maturity. For all pur­
poses of presenting for payment or acceptance, for the maturity and protest, and giving notice for the dishonor ol bills of exchange, bank checks,
promissory notes, or other negotiable or commercial paper, the first day of
me week, commonly called Sunday; January 1st, commonly called New'
Year s day; July 4th; December 25th, commonly called Christmas day:
and any day appointed or recommended by the President of the United
States or the Governor of the State of Indiana as a day of public fast
or ^aana8Slvlllg; February 22d, commonly called Washington’s birthday, I
and May 30th, commonly called Memorial day, the first Monday in Sep­
tember, called.Labor day, Feb. 12th, and the day of any general elec­
tion, are made holidays by statute; and all commercial paper, falling
due on either of said holidays, shall matuie on the next succeeding
business day. Saturday afternoon 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.
•
j -^o^tgages. 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
tbe 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.
U ” 11v ey a iices. 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 (see Aliens), 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, conyeved, devised and passed by descent
by and from her, notwithstahding the fact of her residence with her hus­
band in a foreign State or country. Except bona fide leases for a term not
exceeding three years, conveyance of lands, or of any interest therein,
must be by deed, subscribed, and acknowledged by the grantor or by his
attorney in fact. 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 he 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. 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 warrants to C. D. (here describe the premises) for the sum
of (here insert the consideration),” or “ A. B. quit-claims to C. D. (here
describe the_ premises) for the sum of (here insert the consideration),” —
^ne same being dated, and duly signed and acknowledged by the grantor,
--shall, in the one case, be'a conveyance in fee simple to the grantee, his
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
in quit-claim to the grantee, his heirs and assigns. Any mortgage of lands
worded—“ A. B. mortgages and warrants to G. D. (here describe : the

1176

BANKING AND COMMERCIAL LAW S—INDIANA.

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 he secured, also the date of the. repayment)” —the
same being dated and duly signed and acknowledged by the grantor—
is 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 deed pur­
ports to convey absolutely any estate in lands, but is made, or intended to
be made, defeasible by force of a deed o f 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
three 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. (See Acknowl­
edgments, Married Women.')
C o r p o r a t io n s . Domestic Corporations. Corporations are created
only under general statutes. This is done by means o f articles
of association, filed with the secretary of State, and the recorder or clerk
•of the county, as provided by statute. The liability of stockholders varies
according to the nature of the corporation iu 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 employes. Shares o f capital stock in a private corpora­
tion are subject to attachment.
Foreign Corporations. Agents o f foreign corporations before entering
upon' the duties of their agency in this State, shall deposit in the clerk’s
office o f the county where they propose doing business, the power of at­
torney, or appointment, under which they act. They shall also file a
duly authenticated order, resolution or other sufficient authority of the
board of directors authorizing citizens or residents of this State having
a demand against such corporation arising out of any transaction in this
State with such agents to maintain an action in respect to the same in any
court of this State of competent jurisdiction, and authorizing service of
process on such agent, and that such service shall authorize judgment
and all 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 compliance with the above provisions. Failure of a foreign cor­
poration to comply with these provisions will not bar—but will abate such
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, shall
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 o f 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 in any court of
this State by or against any citizen or resident thereof: or that shall
-commence in any court of the United States in this State, on any contract
made in this State, or liability accrued therein, any suit or action
»against any citizen.or resident of the, State of Indiana, shall thereby
forfeit all right and authority to do or transact business in this State, or
hold real property or liens thereon, and all contracts between such cor­
porations and citizens and residents of this State made after the passage
of this act shall be rendered void, as in favor o f such_ corporations, but
enforceable by such citizen at his election. The provisions of the fore­
going section are made conditions upon which such corporations may be
authorized to do business, or hold titles to, or liens on, real estate in
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: By act of
1907 foreign corporations desiring admission to state must make verified
statement to secretary of state showing: articles of incorporation, bus­
iness intended .to pursue, capital stock, proportion of its business
carried on in this state, amount paid in on capital stock, and answers to
other interrogatories propounded by the Secretary of State, and shall pay
a fee of $25 on first $10,000 of assets used in Indiana, $10.00 for each
additional $10,000. Annual report must be filed and fee of $1 paid.
C o u rts. Terms and Jurisdiction. The circuit court is the only court
•of original general civil jurisdiction in the State. It has full probate
powers, except in Marion County, where there is a separate piobate
court.' Superior courts have been established in many counties. Justice’s
jurisdiction, $200. Party may confess judgment before a justice of the
peace for $300. When a written obligation for money binds more than
one party the justice of the peace majr issue process to constable of any
county in thè State where party resides. The supreme court has no
original jurisdiction. It sits at Indianapolis. The Appellate Court has
final jurisdiction in many cases.
D a y s o f G ra ce are no longer recognized.
D e p o s itio n s . Depositions may be taken anywhere in the United
States without a commission, before any judge, justice o f 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 o f 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 according to law. 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 disin­
terested person, in the presence and under the direction o f the officer,


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and after the same has been Carefully read 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 deposition was written, and if written by deponent or some disinter­
ested person, that it was written in the presence and under the direction
of the officer. 3. Whether the adverse party attended. 4. The time and
place of taking, and the officer shall sign and attest the certificate, and
seal the same, if he have a seal of office. If he have no seal, his certifi­
cate shall be authenticated 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 court 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 may be used.
A witness identifying a written instrument should attach it to his deposi­
tion, making it a part of his answer.
D e s c e n t. The real and personal property of any intestate shall descend
to his or her children equally; and posthumous children inherit equally
with those born before the death of the ancestor. Children of deceased
children take the share which would have descended to the father or
mother; and grandchildren, and more remote descendants, and other rela­
tives, lineal and collateral, inherit by the game 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. I f there
be neither father nor mother, the brothers and sisters, and the other de­
scendants, take the estate as tenants in common; or, per contra, the father
and mother as joint tenants of the survivor. Kindred of the half-blood in­
herit equally with those of the whole- blood in property pur chased by the an­
cestor; otherwise, as to property acquired by gift, devise, or descent. Ille­
gitimate children inherit from the mother same as if they were legitimate,
and vice versa. 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 onefourth 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 husband’s lands, if there be a child or children by
a previous marriage, and none by such widow. Other special provisions
of the , statute are too extensive to set out. The estate of a person dying
intestate without kindred capable of inheriting will escheat to the State
for the suppoit of the common schools.
D iv o r c e . 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, ana 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; impotency, 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 npn-resident, the plaintiff must make and
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 in 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. Persons
obtaining a divorce on publication are forbidden to remarry within two
years. Separation from bed and board for a limited time may be decreed.
D ow er.

(See Married Women.)

E x e c u tio n s may issue at any time within ten years after judginent
and are returnable in 180 days. From 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; 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 x e m p t io n s . 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 o f 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.
F ra u d . Assignments, in writing or otherwise, of any property made
or suffered with intent to hinder, delay, or defraud are void as to the
persons defrauded. The question of fraudulent intent is a question o f
fact.
Frauds—Statute of. The following contracts, if enforcible in court,
must be in writing and signed by the party to be charged: 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 makjng
thereof. 6. Sale of goods exceeding $50 in value, unless part payment
or part delivery be made.

BANKING AND COMMERCIAL LAW S—IOWA.
J

e Yr‘ ^See ^ fach m en tf Garnishment is a remedy in aid
u P0n any personal action arising out of contract any
that
« f su™moned as a garnishee defendant upon an affidavit
that official has good reason to believe that any person named has property
. _Il§6 aerendant m his possession or under his control or thot hp is
indebted to the defendant, or has control or ^ ¿ ^ 0^ money property
efEects’ that 116 tias any share or interest in the stock of any
association or corpcration, and all money or property in the hands of the

!?m
sidfnThonUhb1
T nd fr°
th4 ™ to an exemption of 58600 in
him. 18Ree
Resident
householders
arementitled
a8f in S othtir cases- Wages of non-residents,
month
° ! resident householders to the extent of one
month s wages, aie exempt from execution so long as the defendant
remains m the employ of the garnishee. Indiana claims can not legally
where in’1 S n “ f° ^ 1 M B Pr08e^ i o n , and suits i n s t i t a t e ®
be1c r?minall^pros ecu ted8 pi'°hlbltlon may be enj° ™ d and the offender
Holidays. (See Bills o f Exchange and Promissory Notes.)
Husband and W ife . (See Married Women.)
¿ M B S * -v-be ' ega' i l l ' s ® Per cent, hut interest may be taken
^ advancc- No agreement to pay a higher rate is valid unless the
eame be m writing, and m such case it is not lawful to contract for
is vneir|h «H i ? T u CCnt1' W,heu a greater rate is contracted for, the contract
a11 interest m excess of 6 per cent, is usurious and illegal,
and the excess may he recouped by the debtor whenever it has been
reserved or paid before the bringing of the suit. Interest on judgments
runs from the date o f the verdict or finding, at the rate specified to the
S e e

8 per « ” *■ “ d lf » »

*>“

, J u d g in e n ts o f courts o f record are a lien upon all real estate of
a
e fir«tT^nI1ni1
el1process
years' Judgment
may beon
obtained
atfth
the
first term o f fhC0Untytf0rv
the court, alter
has been served
debtor
ten days prior to the first day thereof. Judgment in justtoe court
becomes a lien on real estate o f judgment defendant from time of filing
6 , S S pt
°^)CK0f+Khe ?lerl? of circuit court. A certified copy of any
judgment rendered by the circuit court of the United States for district of
Indiana may he filed with the county clerk.
L ie n s . Liens are granted by statute to attorneys; to persons holding
claims against watercraft on account of supplies furnished or work donealso for demands for damages arising out of freight contracts, or for willfulness or negligence of the master, owner, or agent, or out of any contract
relating to transportation, and for injuries to persons or property also
^ any corporation as against any of its corporate property or
•earnings for labor done; also to keepers of livery stables and all persons
«ogaged in feeding stock, for the feed and care bestowed upontoeeLme;
also to contractors, sub-contractors, mechanics, journeymen, laborers, and
all persons performing labor or furnishing material or machinery for
^HC
i.1^g ;i1^ 0rlKg’-Iepairmg or. remoT'ng any house, mill, manufactory or
■other building, bridge, reservoir, system o f 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
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
lor one year or more. 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 judgments rendered in the federal
courts are a lien upon any real estate in the State for the same period
Provision is made by statute, however, 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 Ids Pendens 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
notice8 80 reCorded tlle bringing of suits does not operate as a constructive
to S? It8, Actions for injury to person and character,
®tat.,j tc!ry
°f.forfeiture, two years; against public officers
relating to then- 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 o f personal property and relief against
frauds, six years; upon promissory notes, bills of exchange and other
written contracts for payment o f money, ten years; actions not limited
by statute, fifteen years; other written contracts, judgments of courts
oi record and real actions, twenty years. Revivor: part payment or new
promise m writing. Except in favor of sureties, the statute of limitation
does not run against the State.

1177

payment of debts, and in all cases takes $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 in
fee, 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 which 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 in case 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 tor a debt of the husband has
no legal validity.
M o rtg a g e s. (See Conveyances.)
t ^*J?w e r
A tt o r n e y 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 r o b a te L a w . (See Administration o f Estates.) ,
, , P o t e s t . The statutory damages on such protest are 5 per cent on
the principal of a bill of exchange, il drawn or negotiated within this
tt™ I®’ 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
tne United States.
M
I B
When any personal property is wrongfully taken or unlawiully detained, or, if taken on execution or attachment, is claimed by
a third party, the o wner 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 m replevin suits involving property worth $200 or less.
Procedure is same before justice of the peace, except that the plaintiff
must file bond m all cases.
Suits. (See Actions.)
T a x es. State, county, township, municipal, school, and road taxes
attach as a lien on real estate on March 1st of each year, and penalties
attach on first Monday in May in the next year. One-half of
all taxes may be paid «without penalty, if paid before first Monday oi
May ; other half, if paid before first Monday of November. Sales of real
estate ior taxes are held on the second Monday oi February, and all lands
on which taxes are delinquent for two years are offered. Owner has two
years m which to redeem, by paying the amount set forth in the cer­
tificate or 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 o f the sale.
Nuncupative wins, where property of more than the value
or $100 is bequeathed, are not valid, except as to the personal "property 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 m writing is valid unless signed in the presence of two or more
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.

SYNOPSIS OF THE LAWS OF IOWA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by H a l e & H a k v is o n , Attorneys at Law, DCs
Moines. (See Card in Attorneys'' List.)

M a rried W o m e n control their real and personal property. The
husband is liable for the wife’s debts contracted before marriage to the
A c c o u n t s a n d C laim s o f. Statements of account, tor use in court
extent o f the personal property he may receive from her, and no
or for proof in the settlement of estates of deceased and in guardianship
further, and her lands are liable for such indebtedness. A married
matters, must be itemized and verified. A statement of “ balance,” or
woman may devise her separate estate; may sell and transfer her separ­
“ goods,” or “ merchandise ” is not sufficient.
ate personal property; carry on any business, labor, or service, and
receive the earnings accruing therefrom; enter into any contract in
\ A ck n o w le d g m e n ts. All instruments affecting real estate, includ­
regard to her separate personal estate business, labor, or service, and
ing mortgages, deeds of trust, powers of attorney relating thereto, and
her separate estate, real and personal, be liable therefor, the same a&a
leases for more than one year, must be acknowledged or the execution
femme sole; and her husband is not liable for such debts, nor tor
thereof proved, and the instruments must be recorded in the proper office
indebtedness created by the wife for improvement o f her separate real
so as to affect third parties. The same is also true as to bills of sale,
estate. She can make leases o f real estate for terms o f three years or
absolute or conditional, and , chattel mortgages relating to personal
less, and execute mortgages to secure purchase money, without husband
property.) Articles of incorporation must also be acknowledged and
joining. She is bound by covenants of title in conveyances o f her separecorded. The forms of acknowledgment and the officers, within and
rate_ real estate. Her deed conveying her real estate, her husband not
without the State, before whom such acknowledgments may be made are
joining, is absolutely void. She may sue as a,fem m e sole for any damprescribed by statute.
age to her person or character. She is bound in like manner as principal
A c tio n s. The common law forms of pleading are not used, although
on her official bond. She can not enter into any contract of suretyship
the common law forms the basis of procedure. Pleading, practice, and
and such contract, as to her, is wholly void; and therefore a mortgage on
procedure are statutory, and accord, in the main, with what is known as
her separate property for a debt for which she is mere surety indorser, or
the reformed, or Code procedure.
guarantor, is void: but if, as an inducement to her contract, she makes
a sworn statement that contract or mortgage is tor her own benefit, in
A d m in is tr a tio n o f E states. Where an executor is not appointed
Teepect to her separate estate, she is estopped from alleging her suretyship
by will, administration shall be granted: 1. To the spouse of the deceased.
as against any one haying no knowledge that the contract is one of surety­
2.
To the next of kin. 3. To creditors. 4. To any other person whom
ship. She is entitled to hold as exempt from execution her wearing
the court may select. Claims against the estate of a deceased person are
apparel, articles of personal adornment purchased by herself to the
payable in the following order: 1. Debts entitled to a preference under
amount o f $200 m value, all jewelry, ornaments, books, etc., which may
the laws of the United States. 2. Public rates and taxes. 3. Claims filed
have been given her as presents; and other property to the amount of
within six months after the first publication of the notice given by the
$3UU, except as against indebtedness for the purchase money therefor.
executors or administrators of their appointment. 4. All other debts.
A widow takes one-third o f her deceased husband’ s real estate to fee,
5. Legacies and distributive shares. All claims of the fourth of the
froni a11 demands o f creditors, where the estate does not exceed
above classes not filed and allowed, or if filed and notice thereof not
$10,000; one-fourth if under $20,000, and one-fifth, if above that amount. I served within twelve months from the giving of the notice of appoint­
She also takes a child’ s interest in the personalty where the number of
ment are barred, except as to actions against decedent pending in the
children does not exceed two, and where there are more than two her
district or supreme court at the time of his death, or unless peculiar
interest shall not be less than one-third o f the whole o f personalty after ' circumstances entitle the claimant to equitable relief.
75


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1178

B ANKING AND COMMERCIAL LA W S—IOWA.

A ffid a v its. Affidavits may fee 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. (See Depositions.) Affidavits may be taken within the State
for any lawful purpose, of one unwilling to voluntarily make an affidavit,
fey filing a petition with an officer authorized to administer oaths, who
may cause the person to come before him and make affidavit. 'I'his 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 o f any foreign country or corporations organized in this country,
one-half ol the slock o f 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 lor 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.
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.
Assignm ents and Insolvency. General Assignments not valid
unless for benefit o f all creditors, when assent of creditors is presumed.
The debtor must annex to the instrument o f 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 o f 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 tta ch m e n ts. An attachment, auxiliary to the main case, may be
sued out upon any one of twelve (12) statutory grounds for a debt, which
is past due; or upon any one of four (4) statutory grounds for a debt on
contract, not yet due. A bond must be filed for three times the amount
claimed, if the action is founded upon contract, otherwise, in a sum to be
fixed by the court, if the action is not founded upon contract. Garnish­
ments may be effected under the writ of attachment. Special attachments
are permitted, to attach specific personal property, in a few prescribed
cases.
B a n k s. The banks organized under the laws o f Iowa are respectively
designated as Savings Banks and State Banks.
Savings Banks must have a minimum capital of from $10,000 to
$50,000, according to the population of the city or town in which each is
located. Bach share must be of the par value o f $'00100. The statutory
provisions must be consulted concerning the manner of organization, the
issuance of and nayment for capital stock, the board of directors, quorum,
voting by proxy? limitation of deposits, and the investment thereof, the
loaning of funds, the cash reserve required, and the dissolution of such
banks.
State Banks must have a minimum capital of from $25,000 to $50,000,
according to the population of the city or town in which each is located.
Each share must be of the par value of $100.00. The statutory pro­
visions must be consulted for the particulars above ref< rred to on the
subject of Savings Banks.
B ills o f E x ch a n g e . The negotiable instrument law recommended
by the Interstate Commission on uniformity of law has been enacted and
is now law in Iowa. (Bov Grace, See Days o f Grace.) A provision lor
the payment of exchange, in addition to the amount of principal and
interest, does not render a bill of exchange non-negotiable.
C ollatera l S ecu rities. There are special statutory provisions con­
cerning the pledging o f corporate stock, as S'Curity: and also upon the
subject of sales of collaterals by action in court and judicial sale. Other­
wise the subject is governed by the common law.
Conditional 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.
Conveyances. No particular form is necessary for conveyances or
mortgages. The name of the parties, the description of the property, the
consideration, the date, signature, and acknowledgment, is all that is
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 and
sign the same joint instrument. A corporation executes conveyances
under its corporate seal; such convevances must be acknowledged by the
proper officers.
C o r p o ra tio n s. Private corporations, sole or aggregate, may be
formed for any lawful purpose. But there are special statutory pro­
visions which must be complied with for the organization and govern­
ment of Insurance, Banking, Loan and Trust, Building and Loan and
Kailway Corporations. In all cases, the Articles of Incorporation must
be acknowledged and recorded, in the manner provided by law. With a
few exceptions, an incorporation fee of $25.00, plus $10.00 for each
thousand dollars of capital, in excess o f $10,0u0 must be paid, upon the
organization or renewal of a private corporation. The general term of
the life of a private corporation is 20 years, renewable for a like term.
Railroads and a few others may last 50 years, also renewable.
C o u rts. Terms and Jurisdiction. The district court has jurisdic­
tion of all actions, civil and equitable, and has criminal and probate juris­
diction. Superior courts may be established by the vote o f the people
in any city of 5,000 inhabitants. It has jurisdiction to try all violations
o f 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 m the
town snip where the court is 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.


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Transcripts from superior and justices’ 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 jurisdiction and
holds sessions at Des Moines, January to May, from May to September
(less vacation), and from September to December.
D a y s o f G ra ce. Every negotiable instrument is payable at the time
fixed therein without grace.
D e p osition s may be taken within the State, on notice, and within,
or without the State, on commission, issued after notice by the clerk
of the proper court. When to be taken on commission, defendant may
elect, in writing, duly served, to cross examine orally; thereupon
plaintiff may also elect in writing to examine orally. Exceptions
must be filed within three (3) days, after the filing of the deposition, but
objections may nevertheless be made on the trial for competency,
materiality, and relevancy.
Descent and Distribution o f Property. Subject to rights ot
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.
Divorce. Divorces are granted in equity in the district court for the
following causes: 1. Adultery committed subsequent to marriage.
2. Desertion, witbont 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 shall
be right and proper, and the parties forfeit all rights acquired by the
marriage. They are not granted on the testimony of the plaintiff
alone and all such actions must be heard in open court.
D o w e r . Dower in Iowa is abolished, but the surviving spouse is
entitled to one-third in value of all the legal and equitable estates in
real property possessed by the deceased spouse at any time during the
marriage, which have not been sold on execution or any other judicial
sale, and to which such survivor has made no relinquishmem of right. A
spouse, heir or devisee feloniously taking or procuring the taking o f
the life of the other spouse, or decedent, cannot have dower or inherit
power or take under the will of the decedent. The 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. (See
Limitations.')
E x e cu tio n s may be stayed, according to their amount, for 90 days
or six months, with a few specified exceptions, and the issuance o f
execution may be prevented by filing an appeal bond. Otherwise
execution may issue immediately after rendition of judgment. The
judgment is a lien on realty within the county where rendered, or by
transcript, it may be made a lien in any other county Executions
become liens on personal property only from the time of the levy and
seizure. Real estate is sold on execution subject to redemption within
one year, except in appealed' cases, or where the interest is a leasehold
of two years or less. Creditors may redeem from the sale after six
months and before nine months from date ol sale. Personal property
is sold without redemption.
E x e m p tio n s. The head of a family is entitled to a homestead of 40
acres or less of farm land, or half an acre or less in city or town.
Pension money, its p oceeds, wages of a married man, and numerous
items of personal property are exempt by statute. There are statutory
provisions concerning the creation of liens on exempt real or personal
property, and the assignment of exempt wages.
F ra u d . In actions for fraud, heretofore solely cognizable in a court
of chancery, the 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.
Garnishm ent. (See Attachments.)
Husband and W ife . (See Married Women.)
Interest. By written contract, maximum 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 o f
accounts, bear interest at 6 per cent per annum. Contract for more
»han 8 per cent forfeits all interest and costs.
Judgm ents 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. I f 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 uate of the judgment, but this lien dates only from the
time of the levy. Judgments of superior court» 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.
L ie n s. These are mainly created by statute and are enforceable in
equity. In a few cases, and under peculiar circumstances, equitable liens
on reai estate are established and enforced in equity.
L im ita tio n s. Actions, according to their subject matter, have
various periods of limitation, fixed by statute, extending from three
months to ten years after the cause of action accrued. Actions upon
judgments rendered in courts of record have a limitation of twenty
years There are special limitations concerning foreclosure of mort­
gages’ and the spouses’ right of dower (the same for both husband and
wife) ’ This statute can only be tolled in the manner provided by the
code, which does not include partial payments.

BANKING AND COMMERCIAL LAW S—KANSAS.
M a rrie d W o m e n may own in their own right, real and personal
property, and may manage, sell, convey,, and devise the same by will
Neither husband nor wife is liable for the debts or liabilities o f the other
incurred before or after marriage, nor are the wages, earnings or
property of either, liable for the separate debts of the other. Contracts
may be made by a wife, liabilities incurred, and enforced by or against
her, as it unmarried. Both husband and wife are liable for the
expenses o f the family, and the education of the children.
M o rtg a g e s 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 property.
The mortgagor has one year in which to redeem real estate after
execution sale, except as stated under the i-ub-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. I f no satis­
faction is entered within thirty days after reo ties t in writing, the mort­
gagee forfeits $25. (See Chattel Mortgages.) The limitation of actions
to foreclose mortgages, executed prior to January 1,1885, is stated else­
where. (See Limitations.')
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, takt- depositions, and the usual power o f such
officers concerning presentation, demand, protest, and notice o f protest of
negotiable commercial paper.
P a r tn e rs h ip s , L im it e d and S p e cia l. 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 o f the partnership must be signed, acknowledged, and filed in the
office of the clerk of the district court of the county in 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 o w e r s o f A tt o r n e y . A power oi attorney to convey, or in any
manner affect real estate, must be acknowledged and recorded. A
revocation o f such power must be acknowledged and recorded in' the
same office wherein the original power o f attorney is recorded.
R e c e iv e r s . In distributing property in the hands of a receiver there
shall be paid in the following order: 1. Taxes or debts due the United
States; 2 Taxes or debts due the State; 3. Debts owing to employes
for labor, not exceeding $100.00.
R e c o r d s . 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 o f adoption.
R e d e m p t io n . Redemption 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 o f 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 o f judgment creditors, who have made redemp­
tions as hereinabove stated, in addition to the amount originally bid.
R e p le v in . 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 tbe value of the property
sought to be recovered. The defendant may stay all proceedings and
retain the property by executing a bond to the plaintiff, with sureties to
be approved by the clerk.
T a x e s. Real estate is assessed every odd year; personal property is
assessed every year. All property is assessed at its actual value, and
taxed at twenty-five (2’>) per cent of the assessed value. All road taxes
and one-half of the other taxes levied are payable without interest or
penalty before April 1st; the balance is payable before October 1st.
Delinquent taxes bear interest at the rate of 1 per cent per month.
Taxes upon realty are liens thereon; taxes upon personality are liens
upon the owner’s realty, except the homestead, and may be continued
as such liens, if the statute is complied with, from year to year. Taxes
on personalty are liens upon ihe personal property of non-residents,
stocks o f goods sold in bulk, and buildings or additions made after the
assessment lor taxation in the odd years. Personal property may be
levied on and sold for taxes by distress and sale. Real estate is sold
for unpaid taxes, after notice by publication, on the first Monday in
December of each year, subject to redemption in three years from the
date of sale.
T ru st C o m p a n ie s. 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. (See Corporations.)
T ru st D e ed s. 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 aci ion.
■W arehouse R e c e ip t s . 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 o f full age and sound mind may dispose o f 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


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1179

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 OP THE LAWS OP KANSAS
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by J. G. Slonecker, Esq., Attorney at Law,
Topeka. (See Card in Attorneys'List.)
Acknow ledgm ents. (See Deeds.)
A c tio n s . Civil actions are conducted as required by a code of pro­
cedure. Security for costs must be given or plaintiffs may deposit $15 in
lieu of bond for costs.
• ^ ^M inistration o f E sta te s. Probate courts in each county have
jurisdiction of estates. Demands against the estate are divided into the
following classes: 1. Funeral expenses. 2. Expenses of the last sick­
ness; 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 lifetimebut if such judgments are liens upon real estate and the estate be insolv­
ent, 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. All demandsthus exhibited after the expiration of two years and within three years
Demands not- exhibited within three years are barred, except as to
iu ai 1
! 8-' PfrsonB °f unsound mind or persons imprisoned or absent from
the United States, who shall have three years after the removal of their
disabilities. Foreign executors, and administrators with the will annexed,
may sell real estate in this State in accordance with the power contained
m 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 o f the probate court in the county in
which the land is situated.
A ffid avits. Affidavits may be made in or out of the State by the same
authority and with like authentication, as depositions.
A lie n s . Law prohibiting aliens from inheriting or holding real estate
repealed 1901. (See Foreign Corporations).
A r b itr a t io n 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.
A r re st. 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 hds property
which he fraudulently conceals; or fraudulently contracted the debt.
A s s ig n m e n ts a n d I n s o lv e n c y . Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount oi
payments made.
A tt a c h m e n 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
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 anon-resident of the State (but in this case for no other claim than a
demand arising upon contract, judgment, or decree, unless the cause
o f 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 o f 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 on 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.
B a n k s a n d B a n 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 proposed 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 Kangas. The word “ State ”
shall be included m 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
approving 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 810.000. No
bank shall employ its money directly or indirectly in trade or commerce
by buying and selling goods, chattels, wares, and merchandise, and shall

1180

BANKING AND COMMERCIAL LAW S—KANSAS.

not invest in the stock of any bank or corporation, nor make any loans on
the security of the shares o f , its own capital, nor he the purchaser or
holder o f 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 6hall not be considered assets after
the expiration o f six months. Banks must have on hand in available
funds the following sums: In cities having less than 5,000 population, 20
per cent o f their deposits; in cities having over 5,000 population, 25 per
cent, one-half o f 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 x c h a n g e . (See Notes and Bills o f Exchange.')
B ills o f E n d in g. These are governed by the common law.
C o lla t e r a ls . Governed by the common law on Bailments and
Pledge.
C o n d itio n a l 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 o n tr a c ts. All contracts which, by the common law, are joint only,
shall be construed to be joint and several. The use o f private seals in
written contracts (except seals of corporations) is abolished.
C o n v e y a n c e « . (See Deeds.)
C o r p o r a tio n s. Corporations are formed under a general statute.
Prospective corporations must apply to the charter board for a charter.
A $25 application fee must accompany an application. Charter fee is
one-tenth of one per cent o f its authorised capital stock upon the first
$100,000: one-twentieth of one per cent on all in excess of $100,000. Forms
for applications and charters furnished by the Secretary of State.
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. Duration o f charter is fifty years. No corporation
(except railroad, banking, and building and loan), can commence busi­
ness until it file with the secretary of State an affidavit made by its
president and secretary setting forth that not less than 20 per cent of
its capital stock has been paid in actual cash, or property equivalent
thereto. 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,” “ association,” or “ society,” but
this does not apply to banks, benevolent or religious societies. There
must be at least three directors, three of whom must be residents of the
State The annual statement shall be made by each corporation for
profit in the month of February of each year, showing a complete detailed
statement of the condition of such corporation, o,n the 31st day of Decem­
ber next preceding. Failure to file this report within ninety days from
time fixed works a forfeiture of the charter. The capital stock can he
increased to an amount not exceeding three times the original amount
fixed in the charter, and to any further amount of bona fide fully paid up
capital. 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 o f its capital
stock.
C osts. (See Actions.)
C o u rts. Terms and Jurisdiction. District courts, holding two to
three terms a year in every county, have general original jurisdiction in
law and equity. Regular terms 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 o f money, $300; to
recover specific personal property, $100. The supreme court is the court
of last resort. {See Appeals.)
C r e d ito rs’ jB i l l s . Creditors m a/bring an action in the nature of a
creditors’ bill to. marshal assets or set aside fraudulent conveyances as in
other States.
D a y s o f G r a c e . Abolished.
D e e d s. No particular forms of conveyances are prescribed. As
between the parties conveyances are valid without being recorded. The
wife should join with her husband in the conveyance, and any convey­
ance or mortgage o f the homestead without her uniting in the same Is
absolutely void. If the wife has never resided in the State her signature
is not necessary. 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 be before a judge or clerk of the district court
having a seal, a justice o f the peace, notary public, county clerk, register
o f deeds, mayor or clerk o f an incorporated city. Every notary public
shall add to his official signature the date o f the expiration of his com­
mission as notary public. In cases where the acknowledgment is made
out of the State it must he made before a court of record, a clerk, or other
officer having the seal thereof, a commissioner of deeds for Kansas, justice
o f the peace or notary public, or before any consul of the United States
resident in any foreign country or port. Deeds and mortgages must be
recorded in the office of the register of deeds of che county in which the
land is situated, or they will be void as to subsequent grantees in good
faith without notice.
HHHK .
Deeds o f Trust in the nature o f mortgages are not used so far as
sale by the trustee is concerned. „ {See Trusts, etc.)
D e p o s itio n s . Depositions are taken upon notice to the opposite
party Courts are also authorized to appoint commissioners to take
depositions. The depositions may he taken before any person authorized
to take acknowledgments. 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 por­
tion o f a deposition taken on each successive day, Sundays and national
holidays not being regarded. I f taken by interrogatories and cross-inter­
rogatories, under agreement or otherwise, each interrogatory and cross­
interrogatory must be put to each witness and answered so far as he can


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answer it, and the answer written down. 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.
D e sce n t and D istr ib u tio n . The homestead is the absolute property
of the widow and children—-one-halt 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
inherii from the child. Personal property descends in the same way
as real estate. {See Exemptions.)
D iv o r c e . 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. The plaintifl must have resided in the State one year, and sue
in the county of residence. Divorces granted in other states in accord­
ance with the laws thereof are recognized as valid in this State.
D o w e r . Dower is abolished by law. {See Descent and Distribution.)
E v id e n c e . {See Testimony.)
E x e c u tio n s may be ordered as soon as judgment is obtained. There
is no stay of execution in the district court. In justice's courts, hy filing
bond, stays of execution are granted as follows: On any judgment for
$20 and under, thirty days; over $20 and under $50, sixty days; over $50
and not exceeding $100, ninety days; over $100, one hundred and twenty
days. Real estate sold on execution or order of sale, giving the debtor
eighteen months in which to redeem. The debtor is entitled to posses­
sion of the property during the period provided for redemption.
E x e m p t io n s . Homestead of 160 acres of farming land, or of one
acre within an incorporated town or city, with buildings thereon,
unlimited in value. All household goods and wearing apparel;
two cows, t§n hogs, one yoke of oxen and one horse or mule,
or in lieu of one yoke o f 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 stockfor 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’
pension money, where such earnings or pension money is necessary for
the support of the debtor’s family.
F o r e ig n C o r p o r a tio n s. 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 the 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 t>e filed in
February, giving condition on the 31st of December preceding 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.
F r a u d . (See Attachments, Arrest, and Assignments.)
G a r n is h m e n t . 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
he filed with the clerk an affidavit stating the amount o f 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.
G u a ra n ty C o m p a n ies. (See Trust Companies.)
H o lid a y s . 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.
H u sb a n d a n d W if e . {See Married Women.)
I n ju n c t io n s . 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.
I n s o lv e n c y . (See Assignments.)
I n t e r e s t. Legal rate, 6 per cent, but 10 per cent may be agreed
upon. Excess o f 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.
J u d g m e n ts . 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 o f the j udgment may be filed in the office of the clerk of the district
court o f any other county and the judgment will then he a lien on real
estate in that county, but execution can only issue from the court in
which the ju d gm en ts rendered.
J u r is d ic tio n . (See Courts.)

BANKING AND COMMERCIAL LAWS^—KENTUCKY
licenses from th^superintendent^f ?nraranceS

S

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and certa*
M
W
I B
(
8
obtai n
erection or repair of any building.P Statements “ at®riill furnished m the
claim, for what it was rendered fnd by w S m most he
P th®
the clerk of the court. Livery-stable keener
m tb? ° ® ce of
common carriers have liens. ^(See Judgments.)
wardmg merchants and

f

M
H191

by the execution debtor, or the heirs, ward or guardfaf t u r n l8« brought
after the deed is recorded. Other actions for I aI a an’
dve years
within fifteen years. On official bonds and h R H R real property,
years. Contracts not in writing ?hree vesr« r^ tS 4 wrltli lg' flve
replevin, injuries not arising on contract, and L f t y H n g f f i l
fraud, two years. Action for libel, slander mniirin,,=
d of
false imprisonment upon a'suit for penaltv or forfAitnloUS tran8act-1?n’. or
on contract part payment, or a written kcknowledgment or promfse
renews the contract. The statute runs from the date of such l e S l . ’
M a rrie d W o m e n . The real and personal property owned bv a
woman at the tune, of her marriage, and any property which comes to
her by descent devise, or bequest, or gift of any person « S m t hm hus
band, remains her sole and separate property notwithstanding her mar
m m to the disposal o f her husband 0M i l b l f f 0;
his debts. Married women may sell and convey their real and personal
property and enter into any-contract with regard to the saml inThe
same manner and to the same extent as a married man m a y Z reUtion
to his property. She may sue and be sued in the sam“ manner as T f
she were single
She may carry on any trade or business perform
labor or services for her separate account, and her earnings or p roceed
from labor trade, or business remain her separate proplrty and mav
be used and invested by her in her own name.
1 y’ anQ may
M ines a n d M in in g . The law provides for the appointment o f 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.
p proper
M o rtg a g e s . A mortgage o f real estate, to be valid as against subse
quent bona fide purchasers must be duly acknowledged anfrecorded hi
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 oi
attorney or assignee m presence of register, or by satisfaction eltered
on the instrument when copied on the margin by the register: o? by an
independent release duly acknowledged and recorded. W f e must iota
m all mortgages except those for purchase money. Mortgages ale fore
ifi0Sie8Qq V a»1.1»
BL m a7 ° i the Legislature which to o l effect May
wSjg real estate sold under foreclosure of mortgage is subject to
eighteen months redemption. I f 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
wben a mortgage is assigned the assignment should be acknowledged
and recorded. If the assignment was executed prior to March 15 189§ it
recorded whether acknowledged or not, and under the law must
be recorded within four months from that date or payment to tke recent
owner of the mortgage will be a complete defen si to an actionthmeon
(For Forms, see Deeds; see Executions.)'
(For Mortgages on Chattels, see Chattel Mortgages; see Executions )
.Noifries are appointed by the Governor and serve for four
f f 8-, ,{hey give bond m the sum of $1,000 and are required to affix the
date of the expiration of their commission to all certificates.
eff^ctotan^d 1905US ° f E x c h a n g e - Negotiable Instrument Act took
i o £ f rtn e rs h ip s' Limited or special partnerships may be formed for any
egal purpose except banking or insurance. Such partnerships may consist 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
ti,h0eoSpeCla! P a p e rs 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 partnership 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 wnen 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.
recorueu
Power of Attorney. (See Deeds.)
P ro b a te L a w . (See Administration.)
P rotest. (See Notes and Bills.)
R e cord s. (See Deeds.)
Redemption. (See Mortgages.)
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
■
g afbdavlt arld SIvmg bond. Property replevined must be held by
the olhcer 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
°U b? ®a™e ° f lts value in case it shall be adjudged the plaintiff is
entitled thereto, and thereupon may have the property returned to him.
S ervice. 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
affixed the name ° f the 8tate witb tbe seai of tbe oflicer issuing the same

1181

£ ■ ■ ■ ■ ■
Trast companies may be organized with a capital
trust VI™ rtotm
>00’ andmay receive moneys in trust and execute any
crust committed to them, either by any person or by order of any court
and may execute or guarantee any bo£<f required bv T a w to b e g h e n in
fo/th^nnrnosf c f iC0U-rt’ and.a?t as agent for thc investment of money and
cites K
S
t S8;?mg’ registering transferring or countersigning certifior, othe/ evidences of debt, act as guardian and
guarantee the fidelity and performance of duty of persons holding public
I K
I H
B
U certify and guarantee1title to real estafe and
£ munjcipal or corporation bonds, and all kinds ofnegodeposits from banks and other trust companies
d e D O K it R m S f;.T ueyu re required to keep on hand 25 per cent of
aeposits subject to check and 10 per cent of time deposits in the same
“ f lnoUess fhanftfooo' S l N director must be a stockholder in the sum
than m m
companies are under the supervision of the
bank commissioner and subject to his examination.
1
in writ!™
t.rust,fi concerning l^nds must be created
m writing except such as arise by implication of law.
antaPere^t-^rAo?1^011 °-f ful! age arjd 8onnd mind and memory, having
m,rf ai or Persona! property may give and devise the same to
I H H B y P & i - Wlli and testament lawfully executed, subject, nevertheiess to the rights of creditors. Wills must be in writing, signed It
the end by the testator, or another in his presence and by his express
direction, and subscribed in his presence by two or mole c o m p S
Com to fin A«Vhw; th
hlm s!lbscribe or beard him acknowledge it.
Compliance with these requirements should appear in the witnessing
to the’ 1a A v s ^ o f ' V ' f v j* and allowed in another State, accordinf
admitted
relatlye to property in this State, may b l
admitted to record in the probate court of the county in which such
property is situated, by producing an authenticated copy Every will
mta recorded^ t0 P1'°bate’ 8ba11 be flled in the ° fflce of *b? probatfeomt,’

SYNOPSIS OF THE LAWS OF KENTUCKY
RELATING TO

BANKING AND COMMERCIAL USAGES
Prepared and Revised by E r n e s t M a c p h e r s o n , Esq., Attorney at Law
Louisville. (See Card in Attorneys' List.)
JDeeds executed within the State must be
acknowledged before the clerk of a county court or a notary public
w lr A i ! tban tbos? of Uarried 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 ality, secretary of State
commissioner of deeds, or judge of k court. Deeds I I M
i l
United States must be acknowledged before a foreign minister consul
leg,ati0n of ihe Unbed States, or the l i e “
of torefgn
affairs, or judge oi a superior court of the nation-where the deed shall
tbhp l ! i P ted; attested J.n either case by the officer’s seal of office. When
clftif|kthl+1?ugniIenV S taken, by an offlcer of this State he shall simply
certify that the deed was acknowledged before him, and when it was
done. When the acknowledgment is taken by an officer residing out of
this State it must be certified in effect as followsg
State o f .................... |
County......................J-sct .
HQ •■ •• do certify that this instrument of writing from
and
day produced to me by the parties, and acknowledged
»deJPiere^ by
' a ild ........ bis wile, parties thereto, to be their
act and deed, and the contents and effect of the instrument being
hnSlf !h d th the said •••••• by,me, separately and apart from her hus?
band she thereupon declared that she did freely and voluntarily execute
slm em igtabetalltaed1:0 ^ ^ aCt and de6d’ 8Dd con8eilted tba^ the
Given under my hand and seal of office t h is ........ day o f .......... 19...
A c tio n s . 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 req uired
to give security for costs.
a
A d m in is tr a tio n 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 ot 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 years
from the date o f qualification.
J
A ffid a v its. An affidavit may be read to verify a pleading, to prove
the service oi a summons, notice, or other process, in an action: to obtain
a provisional remedy, an examination of a witness, a stay of proceedings
ora warmng order; or, upon a motion. An affidavit may be made: 1
In this State, before a judge of a court, or a jus Dice 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 anv
other person empowered by a commission directed to him by consent
of the parties or by order o f the court; or before a judge of a court a
justice ot the peace, a mayor of a city, or notary public.

Suits. (See Actions.)
Tuxes. One-half the annual levy for taxes becomes due December
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
oper cent on the last half. If not paid by June 20 of the succeeding
A p p e a ls . Appeals may be taken from a justice’s court to the quar­
year, another 5 per cent penalty is added. When the tax upon real
terly court when the value in controversy, exclusive of interest and costs,
estate is delinquent, it is sold for taxes on the first Tuesday in September
leds $10; from the quarterly court to the circuit court when the value
iOuowmg. After sold it hears interest at the rate of 15 per cent per
controversy, exclusive of interest and costs, exceeds $25; from the
annum and the same rate upon subsequent taxes paid and indorsed on
county
court to the circuit court when the value in controversy, exclusive
the tax certificate. The tax lien attaches to real estate on November 1
of interest and costs, exceeds $50; from the circuit court to the court of
in the year m which the tax is levied. After land is sold for taxes, it may
appeals
when the value to controversy, exclusive 'o f interest and costs
De redeemed within three years from date o f sale. The interest of a
amounts to $200 or more. No appeal lies to the court of appeals from
minor may be redeemed at any time within one year after he attains his
any
judgment
of a quarterly, city, police, fiscal or justice’s court, nor
majority, and idiots and insane persons may redeem within five years after J from any judgment
of the county court except in actions for the division
of land and allotment of dower.


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1182

BANKING AND COMMERCIAL LA W S— KENTUCKY.

Arbitration. All controversies which might he the subject of a
suit may he submitted to the decision of one or more arbitrators, or two
and their umpire. The submission may he 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
trators. Each 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
in writing signed by each arbitrator and the umpire, if any, and shall he
a final settlement of the controversy between the parties. A copy of the
award must be given within a reasonable time and shall be binding upon
'both.
A rrest. An order for the arrest of the defendant shall be made by the
court in which the action is brought or pending, at its commencement, or
at any time before judgment, if an affidavit of the plaintiff be filed in his
office showing: 1. The nature of plaintiff’s claim. 2. That it is just.
3. The sum or value, which the affiant believes the plaintiff ought to re­
cover. 4. That the affiant believes, either that the defendant is about to
depart from this State and with intent to defraud his creditors has con­
cealed, or moved from this State, his property, or so much thereof that the
process of.the court after judgment can not be executed; or that the defend­
ant has money, or securities for money, or evidences of debt, in the
possession of himself, or of others for his use, and is about to depart from
this State without leaving property therein sufficient to satisfy plaintiff’s
claim.
A ssignm ents and Insolvency. Subject to National Bankrupt
Law. Every voluntary assignment made by a debtor to any person in trust
for his creditors shall be for the benefit of all the creditors of the assignor,
in proportion to their respective claims, after the payment of the expenses
of the trust; except that property conveyed by the deed of assignment, and
upon which there is a valid lien, shall be applied first to the discharge of
the lien debt; and except that debts due by the assignor as guardian, com­
mittee, trustee o f an express trust created by deed or will, or as personal
representative, shall be paid in full before the general creditors receive
anything The intent of the assignee in making the deed of assignment
shall not invalidate the deed, unless he be solvent, and it appear that the
assignment was made to hinder or delay creditors. The deed vests in the
assignee the title to all the estate, real and personal, belonging to the as­
signor at the time of making the assignment except that property exempt
by law shall not pass unless embraced in the deed. If the assignor, before
making tbe deed, shall bave made a preferential or fraudulent transfer,
conveyance, or gift of any of his property, or fraudulent purchase of any
property or the name of another, the property so fraudulently transferred,
conveyed, or purchased shall vest in the assignee, and it shall be his duty
to institute such proceedings as may be necessary to recover same. If,
upon demand, he refuses to do so, any creditor may, and the property so
recovered shall become a part of the estate, and be distributed as other
assets. If creditors representing one-half in number and two-thirds of
the amount o f debts against tne estate shall so request in writing, the
court shall remove the assignee and appoint another in his stead.
A tta ch m e n ts. The writ may issue against a defendant who is a
foreign corporation or non-resident of the State; or has been absent
from State four months; or has left the State with intent to defraud
creditors,; or has left his county to avoid service of summons; or
so conceals himself that summons cannot be served; or is about to
remove, or has removed his property or material part out of the
State not leaving enough to satisfy claim of plaintiff or defendant’s
creditors; or has disposed or is about to dispose of or sell his property,
or permitted to be sold or disposed of with fraudulent intent to cheat
hinder or delay creditors. Also in action for money due upon
contract judgment or award, if defendant have b o property in State
subject to execution, or enough to satisfy plaintiff and collection will
be endangered b y delay in obtaining judgment and return of nulla
bona. Also in action for personal property ordered to be delivered to
plaintiff which as part thereof has been disposed of, removed, or
concealed, so that order of delivery can not be executed. Affidavit
as prescribed by civil code and bond required, except no bond required
in action upon nulla bona return.
B a n k s . It is unlawful for any person or persons, either as individuals
or co-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 n. ay provide that on Saturday of each week such hour
of closing be as early as twelve (12) o ’clocknoon.
Chattel Mortgages and Deeds o f Trust. No deed of trust or
mortgage, conveying a legal or 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.
C o n tra cts. A seal or scroll is m no case necessary to give effect to a
deed or other writing. All unsealed writings stand upon 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. {See Acknowledgments.)
Corporations formed under the general laws for transaction of any
lawful business. Special regulations prescribed for foreign corpora­
tions doing business in the State, and for banking, building
and loan, trust, insurance, and railroad companies, jj Cumulative
voting prescribed. Stockholders in. banks, trust companies, guaranty
companies, investment companies and insurance companies
are liable equally and ratably, and not one for the other, for all
contracts and liabilities of corporation to extent of the amount of
their stock at par value in addition to amount of such stock;
but persons holding stock, as fiduciaries, are not personally liable,
but estates in their hands are in same manner and to same extent
as other stockholders, and no transfer of stock operates as a release,
of any such liability, existing at time of transfer, provided action
to enforce the liability be commenced within two years from time of
the transfer.
Articles acknowledged and recorded like deeds in
county in which principal place of business is situated, and a copy
thereof filed and recorded in the office of the secretary of State.
A fter. such filing and recording, and payment to State of license tax
of one-tenth of 1 per cent, on its capital stock, corporation is deemed
Organized; but, before transacting business other than with its own
stockholders, at least 50 per cent, of stock must in good faith besubscribed^ payable at such times as board of directors may require.


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Corporation is forbidden to take lien on or purchase its own
stock, except to secure past indebtedness, or to engage in any
business other than that for which it was organized, or to hold real
estate in excess of what is necessary for carrying on its business, for
longer time than five years, under penalty of escheat, Elections by
ballot, and shall be held in this State. The first election must be
held at a meeting held before corporation commences business, and
thereafter an election must be held annually on day named in by­
laws, which must not be changed within sixty days of election.
Of any such change notice must be given to each stockholder twenty
days before election. Any corporation organized under this act may,
b y consent in writing of majority of its stockholders, unless other­
wise provided in its charter, close its business. Notice of such
closing must be published at least once a week for four consecutive
weeks in some newspaper published in the county, and all debts
must be paid in full before officers receive anything.
C ou rts. General civil and criminal jurisdiction is vested in circuit
courts which hold terms in each county as provided b y statute.
Days of Grace. (See Notes and Bills o f Exchange.)
Depositions may be taken in all equitable actions, and in ordinary
or common law actions, where witness resides twenty miles or more
from place where court is held, or is absent from State, and in many
other cases enumerated in the statute where the witness is privileged.
Depositions are taken either on notice to opposite party or upon
written interrogatories. The ordinary method of taking is upon
notice, put where place of taking is more than one [day’ s travel by
ordinary methods and more than one hundred miles' from the place
of sitting of cotut, the party receiving notice may require deposition
to be taken upon interrogatories by giving notice to that effect to
adverse party or his attorney upon same day, or day following one
upon which first notice was served. Except in divorce cases, de­
positions are required to be taken upon interrogatories, if all 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 b y consent of all parties. Officers authorized to take
depositions in this State:. An examiner appointed by judge of circuit
court of this district, a judge or clerk of a court, justice of peace, or
notary public. Depositions may be taken out of this State before
a commissioner appointed b y governor of this State or before
a judge of a court, a justice of peace, mayor of city, notary public,
or any other person empowered b y a commission issued to him by
consent of the parties or b y order of court. If deposition is taken
upon interrogatories neither party is allowed to be present, either
in person or b y agent attorney. The officer’ s certificate must state
when and where the deposition was taken; that the witness was
duly sworn before giving it, and that it was written and subscribed
b y him in officer’s presence, or was written b y officer in presence
of witness and read to and subscribed b y witness in presence of officer.
Descent a n d Distribution of Property. 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 o f 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 be 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 o f 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 iv o r c e . To both husband and wife: 1. Such impotence or
malformation as prevents sexual ' intercourse. 1. Living _ apart
without any cohabitation five consecutive years next before application.
Also, to the party not in fault: 1. Abandonment b y one party
of other one year. 2. Living in adultery with another man or woman.
3. Condemnation for felony in or out of this State. Concealment
from other party of any loathsome diseases existing at time of
marriage or contracting such afterwards. 5. Force; duress, or fraud
in obtaining the marriage. 6. Uniting with religious society whose
creed and rules require renunciation of the marriage covenant, or
forbid husband and wife from cohabiting.’ Also to wife when not
in like fafilt: 1. Confirmed habit of drunkenness on part of husband
of not less than one year’s duration, accompanied with wasting of
his estate, and without any suitable provision for 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 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 b y husband, as indicates an outrageous temper in
him, or probable danger to her life, or great bodily injury, from her
remaining with him. Also to the husband for the following causes:
1. Where wife pregnant b y another man without the husband’s
knowledge at time of marriage. 2. Adultery b y wife, or such lewd
and lascivious behavior as proves her to be unchaste, without actual
proof of 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. No petition taken for confessed; grounds alleged must
be proved. Action must be brought m the county where wife usually
resides, if she has an actual residence in State; if not, then in county
of husband’ s residence. Before a party can obtain a divorce, he or
she must have had an actu&l residence in this State for one year.
Dower. (See Husband and Wife.)
Executions may issue upon judgment any time until collection
of it is barred b y limitation, but no execution shall issue on any
judgment, unless ordered b y the court, until after ten days from
rendition. Execution’ constitutes lien on property of debtor from
time it reaches hands of proper officer. Execution may be replevied
for three months, any time before sale under same, by defendant

BANKING AND COMMERCIAL LAWS—LOUISIANA.
giving to the officer an obligation (replevin bond) payable to plaintiff,
with good scurety for the amount thereof, interest and costs. A
judgment to enforce a lien cannot be replevied. No replevy allowed
upon judgment against any collecting officer, attorney at law or
agent, for a delinquency or default in executing or fulfilling duties
of his office or place, br for failing to pay over money collected
b y him in such capacity, nor against a principal by his surety, nor
upon a debt due b y obligation havmg the force of a judgment nor
upon judgment for specific property, or for the property of its value.
Before sale of land under execution, the officer shall cause it to be appraised under oath by two disinterested, intelligent housekeepers
•of the county; if the land sold does not bring two-thirds valuation,
defendant and his representatives have right to redeem within a
.year irom the day of sale, by paying purchaser or his representatives
-original purchase money and ten per centum per annum interest.
E x e m p tio n s. Two work beasts, or one work beast and one yoke
o f 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
ca^ es, beds, bedding, and furniture sufficient for family use; one loom
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
an use, pne 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 apparel suffic­
ient 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
o f 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 valueall washing apparatus not to exceed $50 in value, one sewing machine’
and all family portraits and pictures; one cooking stove and append­
ages, and other cooking utensils not to exceed in value $25; tools
o f a mechanic, not exceeding $100 in value. Libraries of ministers
o f the gospel; professional libraries of lawyers; professional libraries
and instruments of physicians and surgeons, not exceeding $50 in
value. Wages not to exceed $50 of persons who work for wages ex­
em pt, except as to debts contracted for food, raiment, or house rent
for the family. In addition to personal property there is homestead
■exemption of so much land, including dwelling house and appurte­
nances owned by 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 erection o f the improvements
thereon. Only those persons entitled to exemptions who have
families resident in this commonwealth.
Holid ays. The 1st day o f January, the 22d day o f February, the 30th
ffay o f May. the 4th day of July, the first Monday in September (Labor
Day), the 25th day o f December of each year, and all days appointed
by the president o f the United States, or by the governor o f this. State,
as days o f 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 important 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 husband 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 the husband. After the
death of either husband or wife the survivor shall have a life estate in onethird of all the realty o f 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 oi interest is 6 per centum per annum, and
•contracts for a greater rate are void as to the excess of interest.
J u d g m e n 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. (See
Executions and Limitations.)
L im ita tio n s . The following are the periods within which actions
must be brought, the time commencing to run from the accrual of the
canse o f 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 for
goods sold. Actions for injury to person or character, and for breach of
■promise of marriage.
Notes and B ills o f E xchange. 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) Must
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 be
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 matarity falls upon
Sunday, or a holiday, the instrument is payable on the next succeeding
business day
Power» o f A ttorney. Powers o f attorney to convey real or personal
¡property may be acknowledged, proved, and recorded in the proper office
m the manner prescribed for recording conveyances. If the conveyance
made under a power, is required by law to be recorded or lodged for record
to make the same valid against creditors and purchasers, then the power
must be lodged or recorded in like manner. Resident married women may
Mot convey real estate by attorney.


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1183

Protest. Where any negotiable instrument has been dishonored,
it may be protested for non acceptance or non-payment as the case may
be; but protest is not required, except in the case of foreign bill« o f
exchange. It is the safer practice to protest in all cases.
*
Taxation. Assessment is made on September 1st, o f each year.
Taxes of banks and trust companies are payable to the State Treasurer
before July 1st of each year, and county, city, town and district taxes
are payable at the time fixed by law for payment of like taxes. Taxes o f
individuals are due March 1st, after which time they may be collected
by distress on goods and chattels. After July 1st, real estate may be
®?1(i' ^ d after December 1st, a penalty of 6 per centum on the faee of
tne bill is added. Real estate sold may be redeemed at any time within
two years after the day of sale by paying the purchase money and interest atthe rate of 10 per centum per annum and in addition a penalty
of 15 per centum on the total amount of the purchase price and the
amount of all costs.
Any person of sound mind and over twenty-one years of age
may make a will. Wills must be in writing with the name of the testator
subscribed thereto^ either by himself or by some other person in his
presence and by his direction. If not wholly written by the testator the
subscription must be made or the will acknowledged by the testator in the
presence of two witnesses, who shall subscribe their names in the
presence of the testator. The will of a person domiciled out of this State
is valid as to personalty, if exfecuted according to the law of the domicile;
hiitEw be valid as to lands, it must be executed as required by the law
or this State. The county court has exclusive original jurisdiction over
the probate of wills.

SYNOPSIS OF THE LAWS OF LOUISIANA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. R ic h a r d s o n & S o u l £ , Attorneys at
Law, New Orleans. (See Card in Attorneys' List.)
Accounts. (See Acknowledgments.)
A c k n o w le d g m e n ts of deeds executed within the State may be
made before a judge, notary public, parish recorder or his deputy, in the
presence of two witnesses. These witnesses must be males over sixteen
years of age. In other States, before a commissioner of Louisiana, or
any officer authorized to take depositions in the State where he
resides, but the official character of such officer must be properly
verified.
A Louisiana commissioner may certify to the official
position of any public officer in the State for which he is appointed.
A deed to be authentic and to be admissible in a court of justice with­
out other proof of signature, must be acknowledged and signed before a
notary or commissioner of deeds. In other States any oath or ac­
knowledgment made before a notary public, duly appointed in such
States, when certified under the hand and official seal' of such notary,
shall have the same force and effect without further proof of the signature,
seal and official character of such notary, as if taken or made by or before
a Louisiana commissioner residing in such State. Act 140 of 1896. In
foreign countries every deed, conveyance, mortgage, sale, etc., made or
taken before any ambassador, minister, charge d’affaires, secretary of
legation, consul-general, consul, vice-consul, or commercial agent, and
every acknowledgement, attestation, or authentication of any of said
instruments, oaths, etc., made by any of said officers under their official
seals and signatures^ shall have the full force and effect of an authentic
act executed inJ this State. No witnesses necessary. Party appearing
before any of said officers need not be a resident of the place where said
officer is located. Notarial copies of original when deposited in this
State in a notary’s office have full force and effect of authentic copies
of acts executed in this State. [Act 164 of 1898.]
A c tio n s . Commenced by petition setting forth cause of action,
signed by plaintiff or his attorney. Plaintiff must give resident secu­
rity for costs or make deposit to cover same if demanded.
A d m in is tr a t io n o f E states by executors, administrators, or tutors
who are ex-officio adfninistrators — also by dative executors — where
there is no heir present or agent of heir, public administrator takes
charge. A non-resident executor of a will must in all cases give bond;
a resident does not unless required by creditors. Administrators and
exeoutors of other States must open succession of deceased in the courts
of this State, and be recognized as such here before they can sue or be
sued or transfer property in this State. Stock in local corporations may
be transferred by non-resident, executors, etc., without the necessity of
securing an order from the local court,.but no transfer can be made until
the inheritance tax is adjusted.
Affidavits. (See Acknowledgments.)
A lie n s . After one year’s residence in State may be naturalized. There
is no law excluding them from buying or holding lands. They are only
excluded from voting.
Arbitration. Agreements to submitto arbitration recognized by law.
Arbitrators must be sworn, otherwise decision is not binding. State
board of arbitration of labor troubles established. [Act 139 of 1894.]
Arrest for debt ma^ be made on affidavit that the debt is really due,
and that petitioner verily believes that debtor is about to remove from
the State permanently, without leaving in it sufficient property to satisfy
his demand; and that he does not take this oath with intention of vexing
debtor, but only in order to secure his demand. Debtor may be dis­
charged by disproving facts; by giving bond, by making surrender, by
delivering to sheriff property sufficient to satisfy demand. Arrest of the
debtor only secures his presence to answer the suit; he cannot be held
for the payment of the debt.
Assignments and Insolvency. State insolvent laws superseded
by National Bankruptcy act.
A ttachm ent. Writs of attachment issue on application of creditor,
under oath, when the debtor resides out of the State; when he con­
ceals himself to avoid being cited; when he has mortgaged, assignecLor
disposed of, or is about to mortgage, assign, or dispose o f his property,
rights, or credits, or some part thereof, with intent to defraud his
creditors or give an unfair preference to some of them ; and when he has
converted, or is about to convert, his property into money or evidences
of debt with intent to place it beyond the reach oi his creditors, or,
if debt not due, is about to remove his property out of the State.
Creditor must furnish bond equal to the amount claimed to be due,
with at least one solvent surety, residing within the jurisdiction of

1184

BANKING AND COMMERCIAL LAW S—LOUISIANA.

the court, conditioned for payment to any party injured by issuance
of writ of all damages sustained by him in case it is decided that the
attachment was wrongfully obtained. (Act No. 7,1888.) Garnishment
may be had as an accessory either to a writ of attachment or fieri facias.
B a n k s. Banking corporations organized under banking laws adopted
in 1855, amended in 1888, in 1892, and in 1902. Savings, deposit, and trust
companies provided for by Act 150 of year 1888, amended by Act 95 of
1892, which is now amended by Act 189 of 1902. The number of
persons organizing must exceed five. No special acts of incorporation
can be passed. By Act 189 of 1902, the general banking act of 1855
a,nd the amendary acts of 1888 and of 1892 are amended as follows: 1.
Period of time must be fixed in act not to exceed ninety-nine years.
2. Banks can not hold real estate for longer time than five years, except
such as necessary for the transaction of their business, or except that
held as agent or trustee. 3. All managers and directors shall be citi­
zens of Louisiana. 4. Safe deposits and trust banks without power
to issue bank notes, may be organized under this law with a capita^ of
$50,000 or more, of which capital at least $10,000 shall be paid up before
commencing business. In incorporated towns with less than 20,000 in­
habitants must have cash capital of not less than $30,000, which must be
paid up before can commence business. It may be made a receiver,
trustee, assignee or syndic, and execute trusts of every description.
Money or other valuables deposited by married women or minors may
be drawn out without the authority of their husbands or tutors.
Under Act 45 o f 1902, banks organized to do a savings, safe deposit
and trust banking business must be composed o f more than five persons,
m aybe organized for not longer than ninety-nine years, may not hold real
estate for longer period than ten years, except such as is held as agent or
trustee, or necessary for transaction of their business; mav accept and exe­
cute trusts or agencies of all descriptions, mav be appointed by any per­
son or by court executor, administrator, sjndiG, receiver, curator, tutor,
trustee or assignee. Capital stock considered t>s security for faithful per­
formance of duty, though court may require other security, and may re­
quire the State Examiner of Banks to. investigate the affairs and manage­
ment of the bank. Such banks can not issue notes and must have a
capital not less than $100,000, which must be paid up in cash. (See also
Act 179 of 1902, and amendment thereof, Act 140 of 1906.)
Ohattel Mortgages not legal in this State, (See Mortgages.)
Collaterals must be delivered to be effectual. Bills of Lading
negotiable to some extent. (See U%An. 705.)
Conveyances. All agreements affecting real property must be in writ­
ing, and transfers and mortgages, etc., must be recorded in the place where
the property is situated to affect the rights of third persons. Deeds are made
under private signature or by act passed before a notary public in the
presence of two witnesses. Both vendor and vendee sign, though signature
of vendee is not essential, as any act of acceptance will answer. The
notary preserves the originals o f deeds passed before him and certified
copies given by him are received as evidence in the courts. Every notarial
deed should contain (1) date of act and place where it was passed, (2)
names and surnames and qualities of contracting parties, (3) description of
the property, etc., (4) price of transfer and terms and conditions. (5) The
marital status of all parties must be given. When a married woman ex­
ecutes adeed she must be autnorizedby her husband.
C o r p o r a tio n s. Any number o f peisons, exeeeding six, may form
themselves Into corporations for literary, scientific, religious, and charit­
able purposes; for works of public improvement, and generally all works
o f public utility and advantage; and any number oi persons, not less than
three, may form themselves into a corporation for the purpose o f carrying
on mechanical, mining, or manufacturing business, except distilling
or manufacturing intoxicating liquors, with a capital not less than
$5,000 or more than $1,000,000; Any number o f persons, not less
than three, may form themselves into a corporation on complying
with the general corporation laws, for the purpose o f carrying on any
lawful business or enterprise not otherwise specially provided for,
except stock-jobbing. The legislature can not pass a special act confer­
ring corporate powers. Corporation committing a trespass or damage
may be sued at place, where it occurred. [Act 22 of 1894.1 All corpora­
tions hereafter organized must have their charters, etc., recorded in the
office of the secretary o f state. [Act 59 of 1898.] (See Act 154 of 1902 for
formation o f corporations for works o f public improvement.) Act 120 of
1902 provides for organization, etc., of local and foreign building and
loan or homestead associations. Three or more persons may form a cor­
poration to carry on any business specified in charter that would be
lawful for any individual to carry on. May carry on any named busi­
ness or different branches of business, whether related or not. Must haye
capital of not less than |3 000. [Act 78 of 1904.] No corporation can
declare dividends out of its capital stock, under penalty of forfeiture of
its charter.
Foreign Corporations may be licensed and taxed by a mode differ­
ent from that provided for home corporations. No domestic or for­
eign corporations shall do any business in this State without having one
or more known places of business and an authorized agent or agents m the
State upon whom process may be served. All corporations (except
mercantile corporations) domiciled out of the State and doing business
in the State in default of filing with the secretary of state a declaration
of the place of its locality or domicile together with the name o f its agent
in the State upon whom service of process may be made, may be sued upon
any cause o f action in any parish where the right of action arises.
Foreign corporations must file in office of secretary of state a written
declaration setting forth and containing the place or locality of its
domicile, the places in the State where it is doing business, and the
name of its agent or other officer in this State upon whom process may
be served. [Act 54 o f 1904.]
C ourts. Terms and Jurisdiction. In parishes other than Orleans:
1. Justices’ courts S!exclusive jurisdiction up to $50, and, concurrent
with the district courts, between $50 and $100. 2. District courts —
concurrent with justices’ courts, between $50 and $100; exclusive for
all civil matters over $100 and in all probate matters and appellate juris­
diction in all civil matters in justices’ courts. In Orleans Parish: 1. City
courts — exclusive jurisdiction up to $100. 2. Civil district courts —
exclusive over $100. Justices and city courts open at all times. In
parishes other than Orleans, district courts shall hold continuous sessions
during ten months of the year. In parish o f Orleans, civil district court
sits from October 15th to end of June, but shall remain open on all legal
days during the whole year for granting interlocutory orders, issuing writs,
trials of rules to quash same, trying proceedings instituted, or on appeal
therein by a landlord for the possession of leased property, partition
proceedings, and for such special probate and insolvency business, as the
court en bance may by rule determine. On all amounts up to $2,000,
inclusive, an appeal may be taken to the court of appeals, from the
city and district courts respectively, and on all amounts over $2,000,
to the State supreme court. An appeal lies on both law and facts.
Appeals from the city courts shall be tried de novo.


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B a y s o f G r a c e . Abolished.
Depositions. To take testimony of witness residing out of parish
or State it is necessary to file motioh duly sworn to showing non-resi­
dence and materiality of evidence. Written interrogatories are prepared
and served on opposite party, or his counsel, who has three days in which
to cross. Commission then issues, directed to some proper officer, with
interrogatories and cross interrogatories annexed, who must cause witnessto appear before him to answer under oath the direct and the cross
interrogatories. He should reduce answer to writing, read same towitness and cauRe witness to sign same. The officer then prepares a
process verbal of the whole, attaches it to the commission, interrogatories,
etc., and should return same t6 the court issuing the commission within
the time fixed therein for taking the deposition. The deposition of a
fugitive from justice is not admissible in evidence.
Descent. If one dies leaving no descendants, but a father and
mother and a brother and sister, or descendants of these last, the
succession is divided into two equal parts, one goes to father and
mother, the other to brothers and sisters or their descendants. I f
either father or mother of deceased dies before him, the portion which
would have been inherited by such deceased parent goes to the
brothers and sisters of the deceased, or their descendants. If deceased
left neither descendants nor brothers nor sisters, nor descendants
from them, nor father nor mother, but only other ascendants, they
inherit to the exclusion of all collaterals. If ascendants in paternal
and maternal lines are all of the same degree, the estate is divided into
two parts, one goes to ascendants on the paternal and the other to ascend­
ants on the maternal side. If there is in the nearest degree but one
ascendant in the two lines, such ascendant takes the entire succession.
If one dies leaving no descendants, and his father and mother survive, his
brothers and sisters, or their descendants, take half of his estate. If the
father or mother only survive, brothers and sisters, or their descend­
ants, take three-fourths. If one dies leaving no descendants nor father
nor mother, his brothers and sisters, or their descendants, take all the
estate. The partition of the half, the three-fourths, or the whole of a
scucession falling to brothers and sisters as'above set forth, is made
epual if they are of the same marriage, if of different marriages the suc­
cession is equally divided between the paternal and maternal lines of the
qeceased- If deceased died without descendants, leaving neither brothers
nor sisters, nor descendants from them, nor mother nor father, nor ascend­
ants in the paternal or maternal lines, his succession passes to his other
collateral relations, the one nearest in degree excluding the others. When
the deceased has left neither lawful descendants nor lawful ascendants,,
nor collateral relations, the law calls to his inheritance either the surviv­
ing husband or wife, or his or her natural children, or the State. I f
natural mother left no lawful children or descendants, her natural children,
acknowledged by her, inherit to the exclusion of her father and mother
and other ascendants or collaterals of lawful kindred. Natural children
inherit from their natural father, who has acknowledged them, when he
has left no descendants nor ascendants, nor collateral relations, nor sur­
viving wife, and to the exclusion only of the State. Donations inter vivos
or mortis causa cannot exceed two-thirds of the property of the disposer.,
if he leave at his decease a legitimate child, one-half if he leaves two chil­
dren, and one-third if he leaves three or more. An inheritance tax is»
levied upon all inheritances, legacies and donations, provided no direct,
inheritance or donation to an ascendant or descendant below $10,000
shall be taxed. Tax is 2 per cent on direct inheritances and donations
to ascendants or descendants and 5 per cent for collateral inheritances
and donations to collaterals or strangers. Bequests to educational, reli­
gions or charitable institutions are exempt.
Inheritance tax not due
when property inherited, bequeathed or donated shall have borne itsjust proportion of taxes prior to time of such donation, bequest, or
inheritance.
D iv o r c e . (See Married Women.) Can not get absolute divorce
except for adultery, or in cases where the husband or wife may have been
sentenced to an infamous punishment. Divorce may be obtained after
one year by party who obtains a judgment of separation from bed and
board, and after two years by party against whom such judgment is
rendered, provided there has been no reconciliation between the parties.
(See Separation from Bed and Board.) Statistics relative to divorceemust be filed annually with Secretary of State Board of Health.
Dower. (See Married Women.)
E x e c u tio n . Property taken under a writ of fieri facias must be
advertised and appraised, and can not be sold for less than two-thirds o f
the appraised value, until it has been re-advertised. Advertisements o f
movables three times in ten days—oi real estate once a week for thirty
days. If two-thirds of appraised value is not bid, property must be re­
advertised for fifteen days, and sold on a credit for twelve months for
whatever it will bring. There is no redemption of property sold under
execution or mortgage. No stay of execution is given except on appeal,
and execution may issue at any time after the delay for appealing suspensively has expired. Act 113 of 1906 authorizes sheriffs and constablesto put purchaser of seized property in possession.
E x e m p t io n s . To head of family, real estate if owned and occupied
as a residence, together with certain furniture, stock, implements, pro­
visions, etc.; the property not to exceed $2,000, and provided the per­
son claiming the benefit of the homestead execute a written declaration
of homestead (Acts 1880, No. 114), and no exemption if wife has
separate property worth over $2,000. No registry required in parishes
other than Orleans. (Operative Jan. 1,1899.) Widow or minor childrensurviving is entitled to $1,000 out of deceased husband’s estate, if in
necessitous circumstances, by preference over even a first-mortgage
creditor. Sheriff or constable can not seize linen and clothes of debtor
or his wife, nor his bed, nor those of his family, nor his arms and military
accoutrements, nor tools and instruments and books, sewing machines
necessary for the exercise of his or her calling, trade, or profession, by
which he makes a living, the rights of personal servitude, of use and habi­
tation, of usufruct to the estate of a minor child, the income of total
property, money due for salary of an officer, wages or recompense for
personal service (laborers’ wages) cooking stove, plates, etc., family
portraits, musical instruments played on by family. (Acts 1876, No. 79.>
F ra u d vitiates all contracts. Action barred by one year limitation
to annul sale on account of fraud.
Garnishment-. Wages earned out of this State and payable out o f
this State, shall be exempt from attachment of garnishment in all cases
where cause of action arose out of this State, and it shall be the duty o f
garnishees in such cases to plead such exemption unless the defendant
is actually served with process. [Act 165 of 1904.] (See Attachment.)
Husband and W ife . (See Married Women.)
Interest. Legal rate is 5 per cent, but 8 per cent may be agreed
upon in writing. If higher than 8 per cent is charged, it is reducible
to 8 per cent. I f paid, it may be sued for and recovered within twoyears.

BANKING AND COMMERCIAL LA W S—MAINE.
Judgments recorded in thé office o f the parish recorder become
mortgages from date of record upon ail real estate o f the debtor and
may be thus recorded m any parish where debtor owns real estate
They are valid for ten years, when they must be renewed.
estate.
1 ~ Q M i°r ? r tvU eg es. The following have special privileges, viz 1
1 A sse t’s privilege 3. Privilege of the creditor on the th in f pledged
3. Privilege of a depositor on the price of a thing deposited 4
Privilege for expenses incurred in preserving thing
5 Privilege
of the vendor of movable, effects so long as they are in the posses­
sion of the vendee. 6. Privilege of the innkeeper on the effects of
the traveler. Privileges resting uppn immovables are as follows viz •
1. The vendor on the estate by him sold, for the payment of the price or
so much of it as is unpmd, whether it was sold on or without a credit
2. Architects, undertakers, bricklayers, painters, master builders con­
tractors, sub-contractors, journeymen, laborers, cartmen, and other work­
men employed m constructing, rebuilding, or repairing houses, buildings
or making other works. 3. Those who have supplied the owner or otffer
person employed by the owner, his agent or sub-contractor, with materials
of any kind tor the construction or repair of an edifice or other work
when such materials have been used in the erection or repair of such houses
? L ^ herJÜ°rkS' , [Art; 3252■]. Privilege on crops to be recorded (Act of
1890) The vendor o f an agricultural product of the United States has a
five days privilege for unpaid purchase price in preference to all others.
Lim itations to Suits. Prescription—Accounts stated and acknowl­
edged m writing are prescribed only by ten years. [Act of 1888.1 Personal
actions one year: Action for torts of all kinds; for injury to or non­
delivery of merchandise shipped on vessels; for fees of justice, notarv
or constable; for innkeepers’ accounts ; for accounts of retailers of lia uors •
for wages of laborers or sailors; for freight; and for tuition by month’
Three years : Action for arrearages of rent charges, or hire of movables
or immovables or money lent; for salaries of overseers, clerks, or tuition
by quarter or year ; for fees of physicians, apothecaries, attorneys, sheriffs
clerks, and recorders; on open accounts of merchants, whether wholesale
or retail, and others. Pour years : Actions by minors against their tutors
counting four years from majority. Five years : Action on bills of
exchange or promissory notes, counting from maturity, and for nullity
of contracts or wills; for recision of partitions; to set aside public and
judicial sales for informalities. Ten years: All other actions; the right to
a usufruct or servitude; all judgments, whether rendered within or
without the State, but judgments may be revived before lapse of ten
years, and are then good for ten years from date of revival. Prescription
does not run against minors or persons under interdiction Hus­
band and wife can not prescribe against each other.
Limited Partnership. (See Partnership.)
M a r rie d W o m e n . Separate property ol wife may he controlled by
her: revenues of all separate property administered by the husband
and all property acquired by either husband or wife after marriage con­
stitute part of community, unless bought with the separate means of
either and as a separate acquisition. A married woman can not sue
without the concurrence of her husband or the authorization o f the
court, and she can not bind herself or her property for his debts Wife
has no dower in her husband’ s real estate. The wife can have no claim
upon the property o f the husband to the prejudice of third parties, unless
recorded. Where one of the spouses is agent for the other, he or she may
he witness for the other in a matter connected with that transaction.
Alter dissolution of marriage by death or divorce the survivor is entitled
to one-half of all property remaining afterpayment of debts, acquired
during marriage, and in case of death, the usufruct of the other half,
unless this half is disposed of by will of deceased spouse. W ife cannot
be a Witness to husband's will.
Mortgages can be foreclosed at any time after maturity of the debt
by instituting a regular suit and obtaining judgment thereon, or, if the
act imports a confession o f judgment in favor of the holder, he can apply
to the court for an order directing the sheriff to seize and sell the
property. All mortgages must be recorded before they can have any
effect as against third parties. Trust deeds are not legal, and chattel
mortgages are unknown to the laws of Louisiana. There is no redemp­
tion of property sold under mortgage. All tacit mortgages have been
abolished since 1870. In making sales or giving a mortgage upon his
property, it is not necessary for the husband to obtain the signature of
the wife. A mortgage resulting from recording a judgment can not have
that effect until after adjournment o f court. [Act 1888.] Lessees obli­
gated to erect buildings, etc., upon leased property, can mortgage the
lease, together with the improvements, etc. Act 21 o f 1908.
°
Negotiable In stru m e n ts. “ Negotiable Instrument Act” (No. 64 of
1904) cnanges in many respects the laws formerly applicable to bills and
notes. Under it, da) s of grace, which formerly were customary are
abolished. Instruments are payable to bearer if made payable to the
order of a fictitious or non-existing person, when such fact is known to
the one making it so payable; when name of payee does not purport to
be name of any person; or when the only or last indorsement is in blank
When there is a discrepancy between the words and the figures of an
instrument, the sum denoted by the words is the sum payable.
Two or more persons signing instrument containing words “ I
promise to pay,” are jointly and severally liable thereon. ’ Pre­
sentment for payment is unnecessary to bind party primarily liable,
but is necessary to charge drawer or indorser.
Notice o f dishonor
must be given to drawer and indorser when instrument has been
dishonored by non-acceptance or non-payment, otherwise they are
discharged. A. Bill o f Exchange does not operate an assignment
of funds in hands o f drawee available for payment thereof, and
drawee is not liable till he accepts same. Holder may require acceptance
to be written on bill, and if refused may treat the biil as dishonored
An acceptance written on paper other than the bill, and an uncondi­
tional written promise to accept a bill before it is drawn, binds the
acceptor only in favor of a purchaser for value on faith thereof. Drawee
has twenty-four hours to decide whether he will accept or not. A drawee
who destroys a bill presented to him for acceptance, or who fails to return
the bill within twenty-four hours, is deemed to have accepted the same.
Where a signature is so placed upon a negotiable instrument that it
is not clear m what capacity the person making same intended to sign,
he is deemed an indorser. Foreign bills must be protested for nonacceptance or non payment. Where a bill does not appear on its face1’
to be a foreign bill, protest thereof in case o f dishonor is unnecessary.
A check must be presented for payment within a reasonable time or
drawer will be discharged from any loss caused by delay. Bank is, not
liable to holder of a check until it accepts or certifies same. When the
last day to do an act required or permitted to be done under the act falls
on a Sunday or legal holiday, it may be done on the next succeedin'*
secular or business day. When -day of maturity falls on a Sunday or
a holiday, the instrument is payable on next succeeding business day.
Instruments falling due on Saturday are to be presented for payment
on next succeeding business day, except that instruments payable on
demand may, at option of holder, be presented for payment before 12
o’clock noon on Saturday when that entire day is not a holiday.


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1185

If the day or days next succeeding the protest, for non-acceptance or
non-payment shall be days of public rest or legal holid^s or legal
naif holidays, then the day next following shall be computed as the
first day after the protest. “ Service of citation shall not be waived,
nor judgment confessed, by any document under private signature
executed prior to the maturity of the obligation sued on.” [Article 91,
Constitution 1898.1 Acceptance must be in writing and signed by drawee,
it must not express that drawee will perform his promises by any other
means than payment of money. (Act 189 of 1908.)
i ^^fitnership, Lim ited and Special. Stipulations that one shall
paiticipate m the profits and shall not contribute to losses is void, both
as regards partners and third persons. Partnerships are divided an
to their object into commercial and ordinary partnerships. Commercial
partnerships are such as are form ed: 1. For the purchase of any per­
sonal property, and the sale thereof either in the same state or changed
Dy manufacture. 2. For buying or selling any personal property what­
ever, as factors or brokers. 3. For carrying personal property for hire,
m ships or other vessels. Ordinary partnerships are all such as are not
commercial. There is also a species of partnership which may be incor­
porated with either of the other kinds, called partnership in com­
mendavi.
It is formed by contract, by which one person or part­
nership agrees to furnish another person or partnernership a certain
amount, either in property or money, to be employed by the person
or partnership to whom it is furnished, in his or their own name or
firm, on condition ref receiving a share in the profits, in the pro­
portion determined by the contract, and of being liable to losses and ex­
penses to the amount furnished and no more. Partner in commendam
cannot bind other partners by his act. Partnership in commendam must
• P /i
writing;. must express amount furnished or agreed to be furproportion of profits which partner is to receive and expenses
and loses he is to bear ; must state whether it be received in goods or
money, etc.’ must be signed by parties in presence of at least one witness
and recorded in full within six days in mortgage office. If branch houses
areiestablished the contract must be recorded in parish were branches are
located, i f partner in commendam allow his name to be used or if he
take any part in the business of the partnership, he will be liable as a
general partner. Ordinary partners are not bound in solido for debts o f
partnership, and no one of them can bind his partners unless they have
given him power to do so; each is bound for his share of the debt in proportion to the number of partners. Commercial partners are each liable
for the entire debts of the partnership.
Powers of Attorney. May be written or oral. May be either
general tor all affairs or special for one affair only. One conceived in
general terms confers only power of administration; to sell mortgage
or do any other act of ownership, the power must be express and special.
Probate Law. There is no special probate court. District courts are
vested with probate jurisdiction. Successions are opened upon petition
of interested persons in the parish where the deceased resided, if he had a
domicile or fixed place of residence in the state; in the parish where he
left his landed property, if he had neither domicile nor place of residence
m the state; or m the parish in which it appears from the inventory that
his piincipal property was situated, if heleft property in several parishes;
m the parish where he died, if he had no certain domicile nor any fixed
property. The judge appoints an administrator when deceased leaves no
will. Administrators must render annual accounts, and are allowed 214
per cent on the inventory as commissions. Attorneys at law are appointed
to represent absent heirs. Properties acquired during marriage are presumedto be community property, and surviving spouse is owner of onehalf. When either husband or wife dies, leaving no ascendants or
descendants, and without having disposed by will of his or her share in.
the community, the survivor holds such share in usufruct during his or
her natural life. (See Successions.)
Protest. (See Negotiable Instruments.')
S e p a r a tio n fr o m B e d and B o a rd . May be claimed reciprocally
o À v-. , • y ' 2' When spouse condemned to infamous punishment.
3. Habitual intemperance, excesses, cruel treatment, or outrages, when
such renders living together insupportable. 4. Public defamation o f
one spouse by the other. 5. Abandonment. 6. Attempt of one spouse
against life o f other. 7. When one spouse charged with infamous offense
actually flees from justice.
Taxes. Taxes on real estate can not be enforced until the ex­
piration of the year for which they are levied and after legal notices
to delinquents and advertisement. Lands sold for taxes are redeem­
able within one year, by the owner, his agent, or heirs, or any
creditor, on payment of the purchase money, with 20 per cent
interest and costs, and all subsequent taxes paid. Lands sold for
taxes due prior to 1880 are not redeemable. State taxes are five mills
on the dollar, and parish taxes not exceeding ten mills; city of New
Orleans tax 2.02 per cent. Delinquent State taxes bear interest at 2 per
cent a month, City taxes, 10 per cent a year.
s
W ills . There are four different kinds of wills, viz.: The olographic,
nuncupative by public act', nuncupative by private act. and myslic (or
8?aled> will. The olographic will must be wholly written, dated, and
signed by the testator, and may be made within or without the State.
Nuncupative will by public act as written by a notary in presence o f
three witnesses, over the age of 16 years complete, not insane, deaf,
dumb or blind, residing in the place where will is executed, or five
witnesses not residents of the place, at the dictation of the testator. Nun­
cupative will by private act and mystic wills are subject to many formali­
ties which may be best obtained by reference to Civil Code Arts. 1581-1587
both inclusive. All persons of sound mind over sixteen years of age.
may dispose of their property by will.

SYNOPSIS OF THE LAWS OF MAINE
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and revised b y M e sse s . V e r r il l , H a l e and B o o t h , Attorneys
at Law, Portland. (See Card in Attorneys' List.)
Acknow ledgm ents. (See Deeds.)
Actions. At law begun by writ, under common law practice, but
containing declaration. Suits in equity are begun by bill of complaint,
filed with cle.rk of court and subpoena issued by him, or may be
inserted in writ ref attachment and served by copy of bill and writ. On
motion non-resident plaintiffs required to give security for costs.
Administration of E state. (See Estates o f Deceased Persons).
Affidavits. Affidavits may be made before a notary public or justice
of the peace. ’In some court matters authority of magistrate must be
proved by certificate of clerk of a court of record.

1186

BANKING AND COMMERCIAL LA W S—MAINE.

A lien s. Aliens may hold and convey real estate and personal property.
Wills of alibis m aybe proved and allowed in this State. Widow of a
citizen of United States who was an alien when she married him has
right of descent in his estate (but see Married Women.)
Arbitration. Judge o f probate court may authorize executors or
administrators to adjust by arbitration claims for or against the estates
represented by them. All controversies which may be the subject of pereonal action may be submitted, by the parties, to referees for arbitration.
Majority of referees may make report to Supreme or Superior Courts.
A rrest. (See Executions.) In actions ex delicto, on mesne process
i and execution, as of course without affidavit or order; in actions ex
contractu, on mesne process, upon affidavit of the creditor, his agent, or
attorney, that he has reason to believe and does believe that the debtor
is about to depart and reside beyond the limits o f the State and carry
with him means of his own more than are necessary for his immediate
support, and that at least $10 is due on the claim; on execution, only
after supplementary proceedings and fraud proven, but if contract
judgment or action existing March 17, 1887, arrest on execution.
Debtors arrested on mesne process or execution may disclose, give up
property not exempt from attachment and be discharged from arrest, or
may give bond and disclose according to its terms. No arrest in actions
ex contractu for less than $10, and none of married women in civil
actions.
Assignments. Common law assignments for the benefit of creditors
may be made, and after four months will be good against bankruptcy
proceedings. Assignments o f wages must be recorded in town clerk’s
office.
, A ttach m en t. All property not exempt attachable on mesne process
as o f course without affidavit; security for costs by indorser of writ only
if creditor is non-resident; lien by attachments in the order in which they
are made continue for thirty days after judgment (extended where exe­
cution is delayed, appeal from taxation of costs is taken, or decision of law
court certified down in vacation), within which time levy may be made.
Personal property may be appraised and sold on mesne process to avoid
expense, depreciation or loss, on request of either party and proceeds held
by officer in lieu of the property; foreign attachment(garnishment), known
as trustee process, attaches property held by or debt due from trustee
unless: 1. Due on negotiable paper. 2. Money collected on process by
officer. 3. In hands of public officer. 4. Due on contingency. 5. Trustee
liable to execution on same. 6. Twenty dollars, for persona] labor of the
debtor, wife or minor child within one month in action not^for necessaries.
7. In certain cases money due on life and accident policies, and from
fraternal beneficiary associations. (See Creditors' Bills.)
B a n k s . Savings bank business and discount banking permitted
only under special charter, and under State supervision. Trust
companies may be organized under general statutes on obtaining approval
o f state bank examiner. General statutes relating to discount banking
repealed by Laws 1903, c. 168. Foreign banking associations having a
branch here pay a tax of three-fourths of one per cent per annum on
the amount of business done in this State. Savings banks have no capi­
tal, and do business only for the benefit o f depositors under statute regu­
lations restricting investments, requiring reports under oath and exami­
nations by bank examiner. Must not pay over 2lA per cent dividend semi' annually. Franchise tax is five-eighths per cent, regulated to favor home
investments. Use of the words tkbank,” ‘ ‘trust company,’ 1 and similar
words in designating a business, forbidden, except by corporations
organized as above or under laws of United States.
Collaterals. {See Mortgages.)
C o n d itio n a l S ales, C o n sig n m e n ts. No agreement that personal
property bargained and delivered to another shall remain the property
o f the seller until paid for; is valid unless in writing and signed by the
person to be bound. Such agreement, in whatever form it may be, is
not valid except as between the original parties, unless recorded m the
office of the clerk o f the town in which the purchaser resides atfthe time
o f the purchase. This does not apply to goods consigned for sale.
C o n v e y a n ce s . {See Deeds.)
C o r p o r a tio n s . Three or more persons may form a corporation to
carry on any lawful business excepting banking, insurance, constructing
and operating railroads, savings banks, trust companies, or corporations
intended to derive'profits from the loan or use of money, and safe deposit
companies, but corporations may be formed under the general law for
the construction and operation of railroads outside the pístate of Maine.
Corporations for other purposes, excepting for municipal purposes,
and where the objects of the corporation can not be attained with­
out special acts, are also formed under general laws. Organization
becomes void unless corporation begins business within two years. Cor­
poration may capitalize to an unlimited amount and may increase or de­
crease the amount of their capital or the par value of the shares. No
portion of capital is required to be paid in; stock may be issued for prop­
erty or for services and in absence of fraud the judgment of the directors
as to the value of such property or services is conclusive, the stock there­
upon becoming fully paid. Only original subscribers and takers of stock
are liable on same to extent of unpaid par value and then only for debts
contracted during their ownership of stock, and action to enforce such
liability nlust be commenced within two years and can be maintained
only by a judgment creditor of the corporation who shall have begun pro­
ceedings to obtain such judgment against the corporation during the
ownership of such stock or within one year after its transfer by such
stockholder is recorded on the corporation books. Directors must be
stockholders or members of another corporation^ which is a stockholder.
Corporations must pay to the State upon organization, a fee as follows.
Where the capital stock is $10,000 or less, $10; exceeding $10,000 and up
through $500,000, $50; above $500,000, $10 for every $100,000 of capital.
Other fees for organization are : Attorney-General’s fee $5, Register of
Deeds $5, Secretary of State $5. The annual franchise tax is as follows:
$5 provided authorized capital does not exceed $50,000; exceeding $50,000
and up through $200,000, $10; exceeding $200,000 and up through $500,000,
$50; exceeding $500,000 and up through $1,000,000, $75; and the further
sum o f $50 per $1,000,000 or any part thereof in excess of $1,000,000. Cor­
porations which have suspended business temporarily and have been ex­
cused from filing returns of amount of capital stock, etc., are not liable
for franchise tax. Meetings of s’ockholders must be held within the
State. Clerk must be resident and keep stockholders’ records m the State.
His records are open to inspection by stockholders but not by mere cred­
itors. With the exception of banking corporations no public reports .are
required except one to the Secretary of State showing names ana resi­
dences of officers and amount of capital stock. Delivery of certificate of
stock to bona fide purchaser or pledgee for value together with written
transfer of same or written power of attorney to sell, assign, and transfer
same, signed by owner o f certificate, transfers title against all parties.
Foreign corporations have practically same rights as domestic. Corpora­
tions may dispose of their franchises on majority vote of the stockholders,
may sue and be sued, and have generally the powers of individuals.


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Courts. Terms and Civil Jurisdiction. Supreme judicial court: Two
or three terms a year in each county; unlimited jurisdiction except as speci­
fied below; full jurisdiction in equity; appellate jurisdiction in banc on
questions of law, from trial terms and superior courts. Superior courts:
In Cumberland county except equity, divorce, real actions, extraordinary
legal remedies and some others; exclusive jurisdiction above $50 to $500,
concurrent jurisdiction above $500; sits first Tuesday of every month
except June, July, and August. Kennebec county; exclusive jurisdiction,
with exceptions to $500; concurrent in habeas corpus and divorce; sits
second Tuesday of January and first Tuesday of April and September at
Augusta; second Tuesday of June and November at Waterville. Courts
of probate: Usual jurisdiction'of probate matters. Municipal courts and
trial justices: Exclusive jurisdiction of forcible entry and detainer and
in other cases up to limited amount; appeals to superior court where
established, and elsewhere to supreme judicial court.
C r e d ito rs’ B ills . Bill in equity may be maintained to reach property,
of debtor which cannot be reached by process at law, and is not exempt
from attachment; also property conveyed in fraud of creditors and prop­
erty secreted so that it is not repleviable.
Bays o f Grace. {See Negotiable Instruments.)
B e e d s . Any owner of real estate having right.of entry may convey it
by deed No estate greater than tenancy-at-will can be created except in
writing. Deeds must be acknowledged by a grantor or one of them or by
attorney in fact, executing the same, before a justice of the peace, notary
public or woman qualified to take acknowledgments; outside the State,
and in the United States, before a clerk of a court of record having a seal,
notary public, or commissioner of deeds for this State, and m a foreign
country before a notary public, or a consul or minister of the United States.
Unacknowledged deeds cannot be recorded. No special form of acknowledgment required. Deeds must be recorded to be valid against parties
without notice of the conveyance. Deeds must be under seal, but witness
is not required for validity although usual to have one. Leases for more
than seven years must be recorded. Trusts concerning real estate can be
created only in writing, excepting those arising by implication of law.
Bepositions. Depositions may be taken by disinterested justice of
the peace or notary public; may be taken when deponent is unable
through age, infirmity, or sickness to attend at place of -trial; when
deponent resides out of, or is absent from the State; when deponent
resides in town other than that in which trial is to be held, etc._ Depo­
sitions so taken may be used in all civil suits or causes, petitions for
partition of land, libels for divorce, prosecutions for the maintenance of
children, petitions for opinions in trial before courts of arbitrators, relerees and county commissioners, and in cases of contested senatorial or
representative elections. Depositions or affidavits may also be taken m
applications for pensions, bounty, or arrears of pay under any law of the
United States. Courts may issue commissions to take depositions out or
the State, or they may be taken out of State by a justice, notary, or other
person empowered, but in the latter case it is within the discretion of the
courts to admit or reject them.
Descent and Distribution of Property. {See Estates o f De­
ceased Persons.)
D iv o r c e . Divorce may be decreed by supreme judicial court for fol­
lowing causes: Adultery, impotence, extreme cruelty^ desertion con­
tinued for three consecutive years, gross and confirmed habits of intoxi­
cation from the use of intoxicating liquors, opium, or other drugs, cruel
and abusive treatment, insanity in consequence of which libelee has
been confined in a state asylum for fifteen consecutive years and is
found to be incurable, or on the libel of the wife where the husband
grossly or wantonly and cruelly refuses or neglects to provide her suitable
maintenance; provided, however, that the parties were married in the State,
or resided here after marriage, or that libelant resided in State when
cause of divorce had accrued, or had resided in State in good faith for one
vear prior to commencement of proceedings, or if the libelee is a resident
of State. Either party may be a witness. When divorce granted husband
for fault of wife he is entitled to ope-third of her real estate, except wild
lands, and to such part of her personal property as the court may order.
D o w e r . Abolished by laws of 1895, chap. 157, taking effect as to per­
sons not then married, May 1, 1895; as to others Jan. 1, 1897. Wife or
husband may bar the right by inheritance to one-third or one-half, as the
case may be, of realty by joining in the other’s deed, or by sole deed,
or by ante-nuptial settlement, or by jointure. Either reiusmg to join m
other’s conveyance may be barred of inheritance upon application to
supreme judicial court and decree after hearing. {See Estates o f Deceased
Persons.)
e s t a t e s of Deceased Persons. Eighteen months after notice of
appointment allowed creditors to present claims and suit must be begun
within twenty months after such notice of appointment. Allowance to
widow and minor children, made by court from estate. Non-resident
executor or administrator must appoint attorney. Time of demand or
notice extended for absent creditor if further assets, but prior payments
not disturbed thereby. No administration granted after twenty years.
The real and personal estate of a person deceased intestate (except­
ing wild lands conveyed by him) being subject to the payment of
debts descends according to the following rules: 1. If he leaves
a widow and issue, one-third to the widow.
If no issue, one-half
to the widow. And if no kindred, the whole to the widow. And to
the widower shad descend the same shares in his wife’s real and
personal estate. There shall likewise descend to the widow, or widower,
the same share in all such real estate of which the deceased was seized
during coverture, and which has not been barred, or released, as herein
provided In any event, one-third shall descend to the widow or wid­
ower free from the payment of debts. 2. The remainder of which he
dies seized, and if ho widower, or widow, the whole, together with all wild
lands shall descend in equal shares to his children, and to the lawful issue
of a deceased child by right of representation. If no child is living at
the time of his death, to all his lineal descendants; equally, if all are
the same degree of kindred; if not, according to the right of repre­
sentation. 37 If no such issue, it descends to his father and mother in
equal shares. 4. If no such issue, or lather, it descends one-half id his
mother. If no such issue or mother, it descends one-half to his father.
In either case, the remainder, or if no such issue, father or mother, the
whole descends in equal shares to his brothers and sisters, and when a
brother or sister has died, to his or her children or grandchildren by right
of representation. '5. If no such issue, father, brother or sister, it descends
to his mother. I f no such issue, mother, brother or sister, it descends to
his father In either case, to the exclusion of the issue of deceased brothers
and sisters. 6. If no such issue, father, mother, brother or sister, it de­
scends to his next of kin in equal degree; when they claim through differ­
ent ancestors, to those claiming through a nearer ancestor, in preference to
those claiming through an ancestor more remote. 7. When a minor dies
unmarried,leaving property inherited from either of his parents,it descends
to the other children of the same parent, and the issue of those deceased;
in ea ual shares if all are of the same degree of kindred; otherwise, accord-

BANKING AND COMMERCIAL LA W S—MAINE.
^presentation. 8. If the intestate leaves no widower
widow or kindred, it escheats to the State. An illegitimate child is an
who adontsirnrA T h0 in1t®rmarry; also o f its mother, also of its father,
w r / h l
acknowledges it before a magistrate; and in any cas^
JS treated as an heir it inherits from the lineal and
collateral k^ndr^d of the parent, and they from it. {See Wills.)
“ ? e c ? tio1^ i®8ue after twenty-four hours from rendition of iudg0 ir*,
months, renewable within ten years after,J No
®tay except by order of court for cause and one year against absent
•defendants unless bond filed; levied on real e s t a t e b v m r f i s J S
extent, also on real estate and interests in the same and franchises and
a n X ndad i ? e X rty-Re^ A
m?i‘ey and' 1 consent, circulating notes
f l ? , 16
V'
estate sold on execution may be redeemed in one
year. Attaching creditor may within forty-eight hours after notice, re­
deem personal property of debtor which is subject to mortgage pledge or
lien; may also redeem real estate subject to mortgage o f other lien
Special provisions for redemption of certain other spefifl classes of pronerty, such as buildings on leased lands, franchises, eta
prop
Exem ptions from A ttachm ent and E xecution.
Home­
steads, not exceeding in value $500, when duly registered; debt2 im .aP£?de1’ T en8Sf / furniture for family, not exceeding in value
$100, bed and bedding for each two persons; family8 portraits
foibles, school books m use; State statutes; library, $150; regular pew:
cook stove and iron warming stoves; charcoal, twelve cords of wood; five
tons anthracite coal, fifty bushels bituminous coal, $10 worth o f lumber,
o r .bark’ Produce of iarms till harvested; barrel of flour, thirty
bushels of corn and gram, potatoes for family, one-half acre of fiax and
T ? 1f ^ tnUreS therefrom for family; tools of trade, and materials and
stock, $50, sewing machine, $100; pair working cattle, or pair mules, or
one or two horses, $300; hay to keep them; harness for each horse and milles
$20; horse sled or ox sled, $20; domestic fowl, $50; two swine, one cow
and one neirer, if no oxen, horse or mule, two cows; ten sheep, their wool,
their lambs until one year old; hay to keep them and cattle; plow, cart
truck or express wagon, harrow, yoke with bows, ring and staple, two
chains, mowing machine; fishing boat of two tons; debtor may elect if he
has more than is exempt. Life and accident policies are exempt from creditors, except any excess of $150 Der year premium paid within two years
except suits for necessaries. (See Attachment.)
Action of debt lies on a foreign judgment and
record of it is pnma facie evidence o f indebtedness. Is conclusive except
loi fraud when given by court having jurisdiction of parties and subject
matter.
F ra u d . Usual common law rules as to what constitutes fraud, fraudu­
lent representations, etc.; also statutory penalties for fraud, cheats, etc:
Court of Equity has power to afford relief. Statutory provisions to pre­
vent sale m bulk of part or whole of stock of merchandise in fraud of
creditors.
Frauds and Perjuries. No action shall be maintained upon any
contract to charge an executor or administrator upon any special
promise to answer damages out of his own estate; nor to charge any
person upon any special promise to answer for the debt, default, or
misdoings of another; nor to charge any person upon an agreement
made in consideration o f marriage nor to charge any person upon
any contract for the^ sale o f lands, tenements, or hereditaments or
o f any interest therein; nor to charge any person upon any agree­
ment that is not to be performed within one year from the making
thereof; nor to charge any person upon any contract to pay a debt
after discharge therefrom under bankrupt laws of the United States or
assignment or insolvent laws of this State; unless the promise, contract
or agreement, or some memorandum thereof is in writing and signed
by the party to be charged, or his agent. No action shall be maint&in6d on a minor’ s contract unless ratified, by him in writing after becoming twenty-one years of age, except the contract be for necessaries or real
estate where he has received title and obtained benefit. No contract for
sale of goods, etc., of $30 or more in vaiue is valid unless purchaser
accepts or receives a portion of the goQds or gives something to bind the
bargain, or in part payment thereof, or some memorandum is made and
signed by party charged or his agent.
G a r n is h m e n t. {See Attachment.)
Husband and W ife . Each may hold and deal with property individu­
ally, subject to right of descent in real estate. (See Estates o f Deceased
Persons.) Husband not liable for debts of wife contracted before mar­
riage, nor afterward in her own name, nor for her torts. (See Divorce.)
Interest. Six per cent or any other rate agreed upon in writing; judg­
ments, same rate; accounts and debts not on time bear interest from
demand. Special rate in time notes does not continue after maturity
unless so provided; nor after judgment in any case; no usury laws. On
loans for less than $200, secured by mortgage or pledge of personal
property, the rate shall not exceed 3 per cent per month for first three
months, and 15 per cent per annum thereafter.
J u d g m e n ts. At law; by general order at end o f term on all cases
where verdict or default, unless stayed by proceedings for new trial
or continued for judgment by plaintiff; in equity, only by decree signed
by justice. No lien except by virtue of attachment on mesne process
(q. v.) and where specially provided by law.
L ien s. ( Voluminous Statute Provisions, for Mechanics, Material,
Men, Hotel and Boarding-House Keepers, Stable Keepers, Agister, etc.)
io f Actions. Six years: debt on unsealed contract oi
liability (except judgments); actions upon judgments out of State ol
court not of record; for arrears of rent; of account, assumpsit, or case oe
«ontract or liability express or implied; waste; trespass qu. cl. and d. b. a •
replevin; case, except slander and libel. Four years: against sheriff. Two
years: assault and battery, false imprisonment, slander, libel and penalty.
One year: escape, scire facias and on recognizance. Eighteen months:
stolen bonds and coupons, except by owner. Twenty years: witnessed
notes,bank bills,specialities,real action, other judgments and all other per­
sonal actions. Suit begun when writ is made. Incapacity of plaintiff,
death of either party before or within thirty days after expiration of
time, fraudulent concealment of'action, absence from State when cause
accrues or residence out of the State and absence afterwards, extends
time. •' Actions barred where both parties lived are barred here. New
promise must be in writing or part payment must be made, to extend
time. Against executors and administrators, twenty months after filing
of affidavit of notice given of appointment of executor or administrator,
unless further assets or claim not matured. Against heirs or devisees,
one year after claim accrued; remedy in equity, if not prosecuted
within time limited and if without culpable neglect.
Limited Partnership. May consist of one or more general partners
and one or more special. Special shall contribute specific amount of
capital or property at cash value, and be not liable for debts beyond that
amount. General partners must transact the business.


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1187

M a m e d W om en have same rights and liabilities as to property con­
tracts and all suits as men. W ife’s property not liable for her husband’s
debts, nor his liable for her prior debts nor for others made on her credit.
She may sue and be sued as if sole. .May not be partner of husband and
not liable for family expense except by express promise. (See Arrest,
also Dower, also Estates o f Deceased Persons.)
Mortgages. Of real estate: executed and acknowledged as deeds
recorded as to third parties; convey fee with condition
of defeasance. Foreclosed without possession by serving or advertis­
ing notice, or by possession obtained peaceably, or by consent, or
by suit. Redemption in one year from notice or possession; power
of sale mortgages not authorized by statute and not much used,
supreme Court may anthorize a mortgage by a person in possession
oi an estate subject to a contingent remainder, executory devise,
or power oi appointment, and such mortgage is binding on all
parties. Chattel mortgages to be good against third parties must
oe recorded m town clerk’s office where mortgagor resides when mort­
gage is given; or, if all parties non-resident, where property is situated:
or possession taken and retained. Mortgage on household furniture must
state^ amount of loan, interest rate, and cost of procuring loan. Agreements, whether m form of note, lease, conditional sale, etc. or otherwise,
tnat chattels bargained and delivered shall remain property of seller till
paid for, must be in writing and recorded as chattel mortgages; such
mortgages and notes foreclosed by 60 days’ notice to mortgagor or assignee
nFn6 *0 „i’ or;
°\1(;
St;ate, by publication; redemption in sixty days.
Collaterals pledged on notes, etc., or for the performance of anything, after
failure to pay or perform by the pledgor, may be sold by the pledgee, he
tost giving written notice to the pledgor of the proposed sale, or if his
residence is unknown, by publication of notice once a week for three sue-cessive weeks m a newspaper in the city or town where the pledgee resides,
recording said notice and affidavit of service of same in the clerk’s office of
city or town where the pledgee resides, and after the expiration of the
sixty days from the time of said recording.
Negotiable Instruments. Lays of grace abolished except as to
signt drarts. Falling due on Sunday or bank holiday payable and
presentable for payment on secular or business day next succeeding.
vT , pohday rails on Sunday then following Monday is deemed bank
holiday. On notes payable at fixed place on demand at or after
a time certain, no recovery unless demand proved there before suit;
usual demand and notice to charge indorser; notarial protest proves it;
but one indorsing note at inception before payee does is a maker.
Waiver of demand and notice, acceptance of bill, draft, or order must
be m writing and signed. Recovery from indorser without suing
maker. Rate of damages on protested bills of $100 or more payable in
tms country, 1 to 9 per cent according to place. Negotiable paper
presumed to be taken in payment of debt or liability for which it is
given, unless creditor would thus lose security he otherwise would have
Sa<7
h?liday> are January 1; February 22; Ap-il 19: May30: July 4;
tost Monday m September; Thanksgiving; Christmas, and Arbor Day.
liable 6 reads" d Promise to pay” all signers are jointly and severally
P artn ersh ip .
Personal property of partnership, or interest of
partner therein, exempt from attachment on mesne process^ or seizure
on execution for any individual liability of such partner; but is
statutory provision for reaching same after judgment. (See Limited
Partnership.)
Powers of Attorney. Usual common law rules.
Probate Law. (See Estates o f Deceased Persons.)
Protest. (See Negotiable Instruments.)
R e p le v in . Goods or chattels wrongfully taked or detained may be
replevied by owner or party entitled to possession. Replevin bond
must be double the value of property replevied. If dismissed without
trial, suit may be brought on the bond, in with suit title may be shown
to mitigate damages.
T ax es may be collected by arrest, distress, or suit. On real estate
they are a lien; proceedings to enforce by sale begin upon non­
payment for nine months; non-resident owners have one year from
sale to redeem by paying tax, costs, and 10 per cent interest from day of
sale; residents, two years with 10 per cent interest from day of sale on
whole sum of tax and costs. Land on which taxes are unpaid, sold
on first Monday in February in year succeeding the year in which tax
was assessed; sale is of smallest fractional part of interest to one who
will pay taxes, interest, and costs therefor. State tax assessed by board
of State assessors on gross receipts of railroads and express companies,
and telegraph and telephone lines, collected by suit. Corporations other
than those especially provided for, pay a franchise tax of $5.00 if
authorized capital does not exceed $50,000.00: of $10.00. if capital does
not exceed $200,000.00; of $50.00. if capital does not exteed $500,000.00;
of $75.00, if capital does not exceed $1,000 000.00; and the further sum of
$50.00 for each $1,000,000.00, or fraction thereof, in excess of
$1,000,000.00. State taxes at 4 per cent collateral inheritances above $500.
Special exceptions and exemptions from assessment, and special pro­
visions for taxing personal property situated here but owned out of the
State. (See Banks.)
W ages. (See Assignments, Attachment.)
W arehouse Receipts. Holder deemed true owner so far as to give
validity to contract for sale of merchandise covered, or to protect one act­
ing on faith of such ownership; but one taking from agent, a« security for
antecedent debt gets no greater right than agent. Title to property passes
by endorsement, out not in blank, to purchaser or pledgee in good faith.
Property in warehouse may be attached as that of person named in
receipt, or of last endorsee shown by books of warehouseman. Common
law rules prevail generally.
, W ills. Wills must foe m writing signed by the testator, or at his re­
quest by some person in his presence, and subscribed in his presence by
three witnesses in presence of each other, may be made by any person of
age and of sound mind, and may dispose of all property. Wills execu­
ted in another State or country according to laws thereof, may be proved
and allowed in this State in the county where the testator had his residence
at time of decease; if proved without this State (at his domicile), may be
allowed in any county here where he has property. Widow or widower
may within six months waive provision in will of deceased husband or
wife and claim same share in personal property as would have had in case
deceased died intestate.
Nuncupative will must be reduced to writing within six days, or
proved by testimony within six months, from time words spoken. No
letters in such till fourteen days after decease of testator. Not effectual
to dispose of more than $100.00 worth of property unless proved by three
witnesses who acted at testator’s request.

BANKING AND COMMERCIAL LAW S — MARYLAND,

1188

SYNOPSIS OF THE LAWS OF MARYLAND
RELATING TO .

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by S l in g l u f e & S l i n g l u f f , Attorneys at Law,
Baltimore. (See Card in Attorneys' List.)
A c k n o w le d g m e n ts o f conveyances o f any interest in real or lease­
hold property for above seven years, may be made within the State, and
in the county or city in which the land, or any part of it, lies, before a
notary public, justice o f the peace, a judge of the orphans’ court, a judge
of the circuit court of any county, or a judge of the supreme bench of
Baltimore city. If within the State, but out of the county in which the
estate conveyed lies, they may be made before a judge o f any circuit
court for the circuit where the grantor may be, or before any judge of the
orphans’ court for the city or county in which the grantor may be, notary
public, or a justice of the peace; the official character of the justice
must be certified by the clerk o f the circuit court of the county, or
superior court o f Baltimore city, under his official seal, or any judge of
the supreme bench of Baltimore city, if grantor be in Baltimore city. If
without the State, they may be made before a notary public, a, judge of
any court o f the United States, or of any State or Territory court having
a seal, or a commissioner of deeds for this State. The seal of the officer or
court to be affixed to the certificate o f acknowledgment in all cases. If
acknowledged without the United States, the acknowledgment may
be made before any minister, consul general, vice or consular agent or
deputy, or a notary public, or a commissioner to take acknowledgments for State of Maryland. Every deed conveying any interest in
real estate, must be signed and sealed by the grantor and attested by
at least one witness. A scroll seal is sufficient. No words o f inherit­
ance are necessary to create an estate in fee simple, and no separate
examination o f a married woman is required. Defective acknowledg­
ments made valid by Acts 1908, Ch. 105 and 259.
A c t io n s . The forms of actions, which still savor of the common law
are now very simple, any plain statement of facts constituting a good
cause of action being sufficient. Amendment is allowed at any time
before verdict. Equitable defenses are now allowed to be made in a
court of law, although there are still law courts and equity courts having
different and distinct jurisdiction. (See Suits.)
A d m in is tr a t io n o f E sta te s. The orphans’ court of the counties
and the orphans’ court of Baltimore city are the courts of probate. In
cases where decedent left a will, letters are granted to executor and executrix named in the will. In granting letters of administration, where decedent died without leaving will, letters are granted: 1. To widow or child
or children; 2. Grandchild; 3. Father; 4. Brothers and sisters; 5.
Mother; 6. Next of kin; 7. Largest Creditor applying for letters. In each
class, males are preferred to females. Bond is required with two sureties,
or one of certain local surety companies where authorized by their charter
to act as sole surety. When testator requests in-will that executor be
excused from giving bond, court only requites nominal bond for amount
sufficient to pay estimated debts. Six months notice to creditors must be
given by publication before estate is distributed. Personal property must
be appraised, accounted for and distributed through the orphans’ court of
the county or city in which decedent resided. All sales must be author­
ized,and ratified by the orphans’ court. By Act of 1898, Ch. 246, above
provisions were made applicable to “ estates of persons absent and unheard
of for above seven years.” This act has been held unconstitutional. See
case of Savings Bank of Baltimore vs. Weeks, Court of Appeals of Mary­
land June 16, 1906, 103 Md. 601. Re-enacted with amendments. [Acts
1908, Ch. 125.]
A ffid a v its. (See Acknowledgments.) No particular form necessary
but whoever can take an acknowledgment can take an affidavit. Affi­
davits always required in a mortgage as to the bona tides of mortgage, con­
sideration, and the payment of tax on annual interest in certain counties.
(See Mortgages.)
A lie n s . Aliens, not enemies, may take and hold lands, tenements,
and hereditaments acquired by purchase, or to which they would, if citi­
zens, be entitled by descent, and may sell, devise, or dispose of the same
or transmit the same to their heirs as fully and effectually and in the
same manner as if by birth they were citizens of this State.
A r b it r a t io n . Disputes between parties may be conducted by any
judge or justice of the peace mutually agreed upon. Special agreements
for arbitration of such disputes to be valid. Parties may be represented
by an attorney, and award of arbitrator or arbitrators to be a judgment,
and court may give judgment and issue execution on the award. Act
1904, Ch. 671. provides a means for the settlement of disputes between
employers and employees by mediation or voluntary arbitration.
A r r e s t . No arrest for debts in this State. In criminal cases a sen­
tence may be passed, imposing a sum of money as a fine, and then in lieu
of payment by party, of fine imposed, he is liable to imprisonment.
A s s ig n m e n ts . (See Insolvent Law and Deeds o f Trust.)
A tta c h m e n ts for debt [See Act 1890, Chap. 549], or for unliquidated
damages, either in contract or tort, can be obtained in ail cases
when the defendant is a non-resident or has absconded, affidavit being
first made by the plaintiff to the correctness o f his claim and the fact
that the defendant is a non-resident or has absconded. They may be
also obtained in connection with an original process wheq, the creditor
or some one in his behalf shall give bond in double the amount of the
debt, with sureties to be approved by the clerk, and make affidavit be­
fore the clerk of the court where the suit is brought that the defendant
is bona fide indebted to the plaintiff in the sum claimed, and that the
plaintiff knows or has good reason to believe that the debtor has ab­
sconded or is about to abscond from the State, or that the defendant has
assigned, disposed of, or concealed, or is about to assign, dispose of, or
conceal, his property, or some portion thereof, with intent to defraud his
creditors, or that the defendant fraudulently contracted the debt or
incurred the obligation; or that the defendant har removed or is about to
remove his property, or some portion thereof, out o f this State, with
'in
t to defraud creditors; and the attachment may be maintained,
al though the debt or obligation upon which the action is brought may
not have matured, but the date of the maturity of the debt or obligation
must be set forth in the affidavit [Act 1894, Gh. 648]. A claimant may
have the attached property released by filing a bond in double the amount
o f the appraisement. Any kind o f property or credits belonging to the
defendant, in the plaintiff’s own hands or in the hands o f any one else,
and shares of stock in a corporation, may be attached. Credits not due
may be attached, but wages, hire, or salary not due can not be attached,


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and ninety per cent of wages, hire or salary due shall always be exempt.
[Act 1908, Ch. 665.] Imprisonment for debtis abolished. Defendant
may be sued wherever he does business. In addition to attach­
ments against non-residents or absconding debtors for debt (i. e., a
liquidated sum), as heretofore, attachments may now be issued against
| such debtors in cases arising from contracts when the damages are
unliquidated, and in actions for wrongs independent of contract, but in
such cases no attachments can be issued until a declaration is filed set­
ting out specially and in detail the breach of the contract complained
of or the tort actually committed, .verified by the affidavit of the plain­
tiff or some one in his behalf, and until a bond shall be filed similar to
the bond required in attachments for fraud. [Code 1904, Art. 9.] All
papers in attachment proceedings can now be amended, as in any other
actions at law. [Act 1898 Ch. 44.]
B a n k s. The act of 1898, Chap. 277, made important changes in the
banking laws of this State. The law now provides that all banks incor­
porated under the laws of Maryland, if located in Baltimore city, shall
have a capital stock of not less than $300,000, and, if anywhere else in the
State, of not less than $50,000. It further provides: 1. Stockholders must
own stock four months before they can vote it for any purpose ; 2. Direc­
tors must be stockholders and citizens of the State; 3. No one can be
director in two banks at the same time; 4. Statements must be made
annually by the directors to the stockholders ; 5. Every banking associa­
tion, authorized by its charter to do a banking business in this State,
shall make to the treasurer of the State of Maryland no less than five
reports during each year, to be verified by the oath or affirmation of the
president, cashier, or treasurer of such association or trust company, and
attested with the signatures of at least three of the directors thereof,
showing in detail, and under appropriate heads, the resources and liabili­
ties of such association at the close of business on any past day specified;
by the treasurer of the State; and a summary of such report shall be pub­
lished in a newspaper published in the city or county where such associa­
' tion in this State may be located. The treasurer shall also have the power
to call for special reports whenever he deems the same necessary; 6. The
issue of notes is not to exceed the capital stock paid in, and no note of
less than $5 to be issued, nor of any amount intermediate between $5 add
$10; 7. The debts are at no time to exceed the capital stock, and the direc­
tors are liable for such excess; 8. If dividends are declared which impair
the capital stock, the directors are liable ; 9. No director can be paid for
his services; 10. A bank can hold land for its immediate accommodation
in its business, and such as may come in payment of debts due, but must
| get rid of such land as it acquires for debts in three years; 11. No loans
] must be made to the State or the United States to exceed $50,000;
12. Banks must not pay out any funds or money other than the legal cur­
rency of the United States, notes issued by the authority of their charter,
and notes issued by other banking incorporations received at their par
| value by the banks so paying them ont; 13. All State banks, whether
| incorporated under the provisions of this act or not, must pay annually
I to the State twenty cents on every $100 of the issue of notes then in actual
I circulation, which such bank may have lawfully issued, to be applied toi the augmentation of the free school fund of the State. 1886, Chap. 501,
j continues this act in force till January 1, 1905. There are no laws restrict­
ing savings banks as to the class of bonds they may invest in.
In addition to the statements to be made to the State treasurer, an
examiner, appointed by the treasurer of the State, shall visit each and
every association doing a banking business in the State (excepting State
banks which maybe members of the Baltimore Clearing Association, and
as such required regularly to submit to an examination by a national bank
examiner) at least once in each year or oftener, if in his judgment it may
be necessary. The treasurer of the State, or such examiner, for the pur­
pose of investigation, is authorized to administer oaths, and examine
under oath or affirmation the owners and directors, and all officers and
employes and agents of such bank, and the examiner making such exam­
ination shall reduce the result thereof to writing; no person shall be
appointed examiner to investigate the condition of any bank who shall be
"an officer, agent, or employe thereof. Whenever the treasurer of this State
shall become satisfied that any of the banking associations named have
failed to comply with the provisions of the law, he shall have the right by
his certificate, with the approval of the Governor, to declare the charter
of such association, company, or corporation forfeited, and said certificate
shall be conclusive evidence of such forfeiture, and thereafter he shall
appoint, with the assent of the Governor, a receiver of all the assets of
such association. The provisions of the law as to visits by the State bank
examiner do not apply to savings banks having no capital stock, building
or homestead associations, or National banks, or to corporations author­
ized by their charters to transact a trust, fidelity, surety, or deposit busi­
ness in this State; trust, fidelity, surety, or deposit companies being
required by the act of 1896, Chap. 160, to make certain deposits in bonds
with the State treasurer before they can conduct business in this State.
C olla te ra ls. The conversion by any banker, broker, merchant,
attorney, or agent of collaterals is made a misdemeanor. [See Code,
Art. 27, Sec. 93.]
C on tra cts. The normal condition of all persons is one in which they
are capable of making any contract. The fourth and seventeenth
sections of the Statute of Frauds are in force in Maryland. Acts 1900,
Ch. 362, make it no longer necessary to show that the consideration for
a promise to answer for the debt of another is in writing. A citizen
can not make a contract with an alien enemy during the continuance of
hostilities: but aligns, not enemies, may contract and hold real prop­
erty as fully as citizens. The later cases decide contracts of infants to be
voidable and not void; and they are capable of ratification by infants on
arrival at age of twenty-one. The contracts of infants for necessaries
are binding upon them. The contract of a lunatic is voidable and not
void. The statute provides that a married woman may engage in busi­
ness. contract, sue, and be sued upon contracts and torts, as if unmarried.
[Acts 1898, Ch. 457.] All gambling contracts and contracts made on
Sunday are void.
C on v ey a n ces. No estate or title to any property lying with­
in this State, for any period above seven years, shall pass or take
effect unless the deed conveying the same shall be executed,
acknowledged, and recorded. [See Code 1901, Art. 21, Sec. 1.] Every
deed of real estate shall be signed and sealed by the grantor and bargain­
or, and attested by at least one witness. No words of inheritance neces­
sary, but every deed shall be construed to pass fee simple title unless the
contrary appear. A scroll with the word “ seal” therein by way of A
seal, is sufficient. A deed must be recorded within six months from date,
in county or Baltimore City, where land lies, but if recorded after this,
deed, while valid between parries, is invalid as to deeds to bona fide pur­
chasers without notice recorded prior thereto. A body corporate must
embody in the deed itself the appointment of an attorney to acknowledge
the deed as and for the corporate act of said corporation. Vendors’ lien
may be released in original deed or upon records where recorded. [Act
1906, Ch. 65.] Conveyances defectively acknowledged made valid-by
Acts 1908, Ch. 105 and 259.

BANKING AND COMMERCIAL LAW S—MARYLAND.
Corporations are organized under the authority o f the General In­
corporation Law completely revised, Act 1908, Chap. 240. Liberal pro­
visions are made for general incorporation; only exception (for muuicipal purposes) is m the constitution. All corporations (under the general
law; must pay a bonus tax o f_one-eighth o f one per cent upon its
authorized capital stock and any increase. Corporations have perpetual
succession, may carry on business anywhere, may issue bonds, and secure
them by mortgage of all property including franchises. .Foreign corpo­
rations must file list of resident shareholders, and amounts held The
corporation certificate must be died and $25 paid; annual renewal'fee of
$1 is charged. All corporations, not paying a gross receipt tax (a long
enumeration), shall pay an annual franchise tax on their capital
employed m this State, of 50 cents per $1,000 but no lees than *25 If
capital is over $500,000 then M o f one per cent on the excess to *5 000 000
etc. Domestic corporations may issue all kinds of preferred and common stock and exchange same for stock or good will. Valuation in
absence of fraud is conclusive.
Courts. Terms and Jurisdiction. The circuit courts in the coun­
ties have jurisdiction at common law in cases involving more than $50
and equity m all cases involving more than $20. They hold from two
to tour regular terms in each county at which they have a ju ry there
are, however, intermediate terms fixed by the rules, to which process
may be made returnable. The circuit court and circuit court No. 2 of Bal­
timore City have exclusive equityjurisdiction in the city. The superior
court, the court of ^common pleas, and Baltimore city court have concur­
rent common law jurisdiction in cases involving more than $100 The
court of common pleas has exclusive jurisdiction in insolvency and the
criminal court in criminal cases. The orphans’ courts in Baltimore City
and in the counties have probate jurisdiction. Justices of the peace
have jurisdiction to the amount o f $100. The common law courts have
three terms in the year, and rule days every month in the year to which
process may be returnable. The equity courts have six terms in the
year, beginning the first Mondays of January, March, May, July, Sep­ ,
tember, and November.
,
Depositions.
When the courts are satisfied, by affidavit or other­
wise, that there are material and competent witnesses residing without the
State, they will direct that a commission be issued to take the testimony
o f such witnesses. The commissioners are selected by the court and
must qualify before some person authorized to administer an oath in
the State where they reside. The depositions, duly certified by the com­
missioners, shall be admitted as evidence at the trial of the cause, subject
to the same objections and exceptions as the same testimony would be if
the witness had been personally present in court and there examined.
Parties have the right to be present when the testimony is taken under
the commission, and must receive reasonable notice of the time and place.
Examination is restricted to the parties and interrogatories and crossinterrogatories annexed to the commission. Testimony of non-resident
witnesses can also be taken upon proper notice, as provided bv Sec 17 of
Art. 35 of the Code of 1904.
'
.oPe8Cent and Distribution o f Property. IAs to descent, see Code
1888. Art. 46, and as to distribution, Code, Art. 93.
D iv o r c e . Divorce comes within the jurisdiction of court o f equity.
Divorces are decreed a vinculo matmmonii for the canonical causes on
impediment existing previous to marriage. Divorces a mensa et thoro
are decreed for vicious conduct, cruelty o f treatment, abandonment, and
desertion. The court has power to decree the custody of children, and in
some cases decrees as to how property shall be divided; and has power to
allow alimony.
D o w e r . The common-law right of dower exists in Maryland, and ex­
tends to equitable estates. By act 1898, the husband’s dower was created;
an estate of the husband in his wife’s estates of inheritance, exactly
equivalent to the wife’s dower in her husband’s estate. A devise or
bequest of real or personal property to the wife or husband shall be con­
strued to be in lieu o f dower in lands or share of personal estate,
respectively, unless otherwise expressed in the will. If the widow or
widower renounces formally in writing, however, such provision made
for her or him will within six months after the grant of administration
on the estate of the deceased husband or wife, the dower right and
the share of personal property remain undisturbed. (See Married
Women.) [Act 1904, Ch. 661.]
Executions may issue and judgments may be renewed or revived
by scire facias at any time within twelve years from date of judgment
or from the expiration of any stay, and may be thereafter levied on
any property oí the defendant. In the circuit courts for the counties
there is a stay until the first Thursday o f the term succeeding the
rendition o f the judgment, provided the judgment is obtained at the
second term after the defendant is summoned. There is no stay upon
Judgments rendered in the courts o f Baltimore city or by justices of
the peace in the city or counties, but execution may issue forthwith.
The defendant may stay the execution by superseding with sureties for
six months. Copy of docket entries of judgment when recorded in
another county makes the judgment a lien there. [Act 1890, Ch. 314.]
Exem ptions. No homestead law. Wearing apparel, books and tools
(not_ kept for sale) and $100 of property in addition, whether same
consists o f money, land, goods or money payable as insurance, benefit,
or relief in the event o f sickness, hurt, accident or death, are exempt
from execution, except on judgments for breach of promise to marry and
seduction, not applicable to any but actual bona fide residents o f this
State. Equitable interests in personal property can not be sold under
execution, but may be levied upon, and the lien thus acquired may be
enforced in equity. Choses in action may be attached.
Foreign Corporations. (See Corporations.)
Foreign Judgm ents. Judgments of the courts of other States cer­
tified under the act o f congress, are proper causes of action against any
erson subject to the process o f the courts o f this State.
F raud. When any false representation is made by one to another
with the intent to defraud, and the defrauded party, thinking the alleged
fraud to be true, acts upon it, any .contract thus made can not be enforced.
But if the injured party knows such representations to be false, it can not
be said to have influenced his conduct. For general doctrine in this State
see McAleervs. Horsey, 35 Md. 439. Every person buying merchandise
m bulk shall demand and receive from the vendor a written statement
under oath containing the names and addresses o f all creditors with
amount of indebtedness at least five days before the sale is consummated.
The vendee at least five days before consummating such sale shall notify
all of said creditors either personally or by registered mail o f such pro­
posed purchase. A sale or transfer of goods in bulk without such notice
shall as to all subsisting creditors of the vendors be conclusively presumed
fraudulent and void. [Act 1906, Ch. 421.]
Garnishm ents. (See Attachments.)
Husband and W ife . (See Dower, Divorce, and Married Women.) In
this State the husband is not liable for wife’s antenuptial debts or con­


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1189

tracts. Husband is liable for necessaries of wife. Acts 1898, Ch. 457,
gives husband same interest in wife’? estate as wife has in husband’s estate.
Married women are especially authorized by the Acts of 1900, Ch. 633, to
become partners and to contract with husband. Either can relinquish in­
terest in other's real .estate by joint or separate deed', or by agent or attor­
ney properly constituted. [Acts 1900, Ch. 195.]
Interest. The legal rate of interest is 6 per cent per annum.
Judgments bear interest from their date. A person proved guilty of
usury forfeits the excess over the real sum or value of the goods and
chattels lent, and legal interest thereon. Since 1876, where the whole debt,
including the usury, is paid, the usurious interest can not be recovered
back.
J u d g m e n ts are liens for twelve years from date of rendition on any
interest of the defendant in real or leasehold property within the county
where rendered. They can be transferred from one county to another
by sending a copy of the docket entries to the clerk for record. The
lien commences from the date of the entry of the docket entries by the
clerk. Judgments are not liens on mortgages. Judgments are not liens
on personal property until execution has issued and the writ is in the
hands of the sheriff. [See Act 1890, Chap. 558, as to examination of
judgment debtors.] (See Suits.)
L ien s. (See Judgments.) Mechanic’s Liens. Every building erected
repaired, rebuilt, or improved to the extent of one-fourth of its value is sub’ject to a lien for work done or materials furnished for or about the
same. Act of 1898, Ch. 502, abolished lien for materials furnished for
buildings in Baltimore city Every machine, wharf, or bridge, constructed
or repaired is subject in like manner as buildings are to a lien according- to
the provisions of Code 1888, Art 63, Sec. 22. All boats or vessels are sub­
ject to a lien for materials furnished or work done in building repairing
or equipping the same. To secure the lien and lay foundation for enforcing
it, the material man must within six months after the last work has been
furnished, file a claim in the superior court for Baltimore city, or in the
bilf in equit f° r til6 001111
Tlie liens are enforced by scire f acias or by
Limitations o f Suits. Accounts and notes are barred after three
years, sealed instruments and judgments after twelve years
A verbal
promise or acknowledgment will revive a debt barred by the statute.
Married W om en. Act of 1898, Chap. 457, repeals and re-enacts the
entire law m this State. Married women may hold and dispose of their
property lawfully as if unmarried, but husband must join in conveyances
of real estate to release his interest ; the husband must unite in the con
veyances of married women under 18 years; they may engage in busi­
ness, contract, sue, and be sued upon contracté and for torts as if
unmarried. Married woman is alone liable for antenuptial debts and
contracts. Husband is still liable foi*necessaries. Widow is entitled to
dower m real estate, and one-third of the personal estate if there are
children, and if no children one-half of the personal estate; husband has
same rights in wife’ s property as wife has in husband’s property Where
the wife is adjudged a lunatic upon inquisition, and the finding’remains
in force, husband may convey after acquired property by separate deed
as if unmarried.
y
’
Mortgages are executed, acknowledged, and recorded same as deeds
and are not valid against creditors unless recorded within six months’
1 here must be an affidavit made by the mortgagee or his agent at any
tune before recordmg, that the consideration is true and bona fide
and that the mortgagee will not require the mortgagor or anv
other person for- him, to pay the tax levied upon the mortgage
interest, and upon the assignment of any mortgage except for the
purpose of foreclosure, a like affidavit must be made by the assignee
I f made by agent, he must, in addition, make oath that he is the agent of
the mortgagee. A like affidavit is required to chattel mortgages and
absolute bills of sale, both of which must be recorded within twenty
days. The lien of a mortgage may, by ceasing to pay interest or anv
installment of the principal for twenty years, be barred. Theym avbe
foreclosed at any time after the debt becomes due and before the lien is
barred. Mortgagees are required to pay a tax of 8 per cent on the interest
covenanted to be paid in the mortgage, in Worcester. Wicomico, Somerset
Carroll, Howard, Montgomery, Frederick, and Dorchester Counties. No’
tax in Baltimore City and other counties.
Notes and H ills of Exchange. Negotiable instruments are de­
fined by Ch. 119 of the Laws of 1898, which repeals all laws inconsistent
with the provisions of this act. Section 20 provides as follows- “ An
instrument to be negotiable must conform to the following requirements1. It must be in writing and signed by the maker or drawer. 2 It must
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 order or to bearer; and 5, where the instrument is
addressed to a drawee, he must be named or otherwise indicated therein
with reasonable certainty.” Its negotiability is not affected by a seal
or by a provision which authorizes the sale of collateral securities in case
the instrument be not paid at jnaturity, or authorizes a confession of
judgment if the instrument be not paid at maturity; or waives the benefit
of any law intended for the advantage or the protection of the obligor- or
gives the holder an election to require something to be done in lieu of
payment of money. It is notnecessary that paper should be made payable
at a bank or any fixed place. To charge indorser, notice of non-payment
must at once be given to him. The time of maturity is regulated bv
statute as follows: “ S e c t io n 145. Time o f Maturity. 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 pay­
able 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.” Legal holidays are: Christmas
New Year’s Day, February 22, Good Friday, July 4, Decoration Day Mav
30, 12th day of September and the 12th day of October, all days of general
and congressional elections throughout the State and any day of public
thanksgiving or humiliation and prayer proclaimed by the governor or
legislature, and all Saturdays after 12o’clocknoonarealegal half holiday
By Act 1898, Ch. 198, it shall be lawful for banks and bankers in the city of
Baltimore to close their doors for business at 12 o’clock noon on each and
every Saturday in the year, and every Saturday in the year, after 12 o’clock
noon, shall be a legal half-holiday, so far as regards the presehting for pay­
ment or acceptance, and the protesting and giving notice of the dishonor
of bills of exchange and other negotiable paper, and for these purposes
shall be considered as the first day of the week, or Sunday, and all negoti­
able paper shall be deemed to be presentable on the secular day next
succeeding. Days of grace have been abolished in this State.
Power o f A ttorney. Every power of attorney authorizing an agent
or attorney to sell and convey any real estate, shall be attested and
acknowledged in the same manner as a deed, and recorded prior to or

1190

BANKING AND COMMERCIAL LAW S—MASSACHUSETTS.

with the deed executed in pursuance o f such power of attorney. A cor­
poration shall hare power to appoint an attorney for the same purpose,
by its corporate seal. Such power o f attorney shall be deemed to he re­
voked when the instrument containing the revocation is recorded in the
office in which the deed should properly be recorded.
Probate Law. (See Administration o f Estates and Wills.)
Protest is usually made hy notary public. 'Notary must keep register
of protests. A protest of notary public is prima fa cie evidence of
non-acceptance or non-payment, and of the presentment of said note
for payment, or of said bill for acceptance or payment, at the time and
in the manner stated in the protest, and the protest shall also be prima
fade evidence that such notice has been sent or delivered in the manner
therein stated. (See Notes and Bills o f Exchange.)
K e p le v in is a remedy to recover specific goods and chattels to whose
possession the plaintiff is entitled. Also the proper remedy to recover
possession of goods distrained unlawfully. Bond must be given to the
State of Maryland, and auy party having an interest iff the property, may,
upon breach o f any covenant in bond, maintain an action in the name
of the State for his or her use.
Taxes. The county commissioners of the several counties of the
State, and the mayor and city council of Baltimore city are directed to
levy a tax annually upon real and personal property situated within
the State, and no person who is not assessed to the sum of $100 shall be
required to pay any tax. In addition to the above tax the State
legislature, with the concurrence of the governor, regulates the State
tax for the next two years following the meeting o f legislature, which
convenes every two years. The property of religious, charitable, benevo­
lent, and educational institutions, and cemetery companies is exempt from
taxation. In Baltimore city the mayor and city'council have authority
to exempt the plant of manufacturing industries from taxation, ior the
purpose of encouragement of industrial enterprises. Collectors may sell
property to compel payment of overdue taxes, upon giving due notice of
sale, and complying with other requisites of statute, and any person
interested in property may redeem within one year and a day from date,
by tendering to collector the whole amount received by collector from
sale, with interest to date o f tender, and in default of redemption, title
to property rests in purchaser. Taxes are considered in arrears on first
day of January next succeeding the date of their levy, and bear interest
from that date. Act 1896, Ch. 120, repeals and re-enacts_the sections of
the code relating to “ Revenue and Taxes.”

'Administration o f instates. The judge of probate for the county
where deceased last resided may appoint any person of sufficient capacity
as executor or administrator. Executors or administrators are required to
give a bond of about double the value of the personal estate. An executor
will he exempt from giving sureties if testator so directs. An administra­
tor will be exempt if all persons interested except creditors consent and all
creditors are notified by publication. In case a non-resident is appointed
executor or administrator, he must appoint a resident agent. There are
public administrators in each county to whom administration is granted
upon estates of persons who die intestate leaving property, and not having
any husband, widow, or heir in this State. ’’Ancillary administration may
be granted upon the estate of a non-resident who dies leaving property in
this State. Every administrator and executor shall file an inventory and
publish notice of his appointment. Notice of a debt and demand for its
payment should be given to an executor or administrator within one year
after his appointment, and the debt should be paid after one year and
within two years of the appointment. No suit can be brought by a credit­
or against an executor or administrator within one year after his giving
bond, except on a claim not affected by the insolvency of the estate. Nosuit can be brought against an executor or administrator who has pub, lished notice of his appointment, after two years from time of his giving:
bond, unless he has received new assets after tfie expiration of the twoyears. A creditor whose claim does not accrue within the two years may
cause assets to be reserved to answer to his claim. When the estate is
insufficient to pay all Claims, the executor or administrator shall represent
the estate insolvent, and commissioners will be appointed to receive proof'
of claims. Claims for personal expenses, last sickness, and charges of
administration, are not affected by the insolvency of the estate. Executors
and administrators shall render an account at least once a year.
A lie n s . Resident, or non-resident aliens may sue and be sued and
may hold and convey real estate.

Arrest. In an action of contract, the defendant unless she is a
woman, may be arrested on mesne process, if the plaintiff or some one in
his behalf makes affidavit that he expects to recover a sum amounting to
$20; that he believes that defendant has property which he does not intend
to apply to payment o f plaintiff’ s debt; that he believes that defendant
intends to leave the State. Actions of tort, against women as well as men,
except for slander or libel, may be begun by arrest of the defendant, on
the plaintiff or some one in his behalf making certain affidavits. A
defendant arrested on mesne process may give bail or he may apply to
take an oath that he does not intend to leave the State, or the oath for
relief of poor debtors; on taking such oath he is released from arrest. No
W ills of land or personal property, and any codicil thereto, must be in
arrest can be made if the property of defendant is attached upon the same
writing, signed by the testator, or some one else for him, in his presence,
writ. On an execution, except for costs, or where debtor is about to leave
at his request, and witnessed by two or more credible witnesses, as and
the State, he can not be arrested until he has first been cited before a
for last will and testament of the testator in the presence of all the wit­
magistrate for examination, and it appearing that he has property and
nesses thereto. Nuncupative wilfe invalid except in case of disposition of
refuses to assign it, the magistrate may order his arrest. When arrested
personal property by soldiers and marines in actual service. [Code, Art.
under execution the debtor may apply to take the oath for relief of poor
93.] Every will or other testamentary instrument made out o f the State
debtors.
shall be held to be valid in Maryland if the same be made according to the
forms required by the law of the place where the same was made, or by the
A ss ig n m e n ts f o r benefit o f Creditors. A voluntary assignment to
law of the place where the testator was domiciled when the same was made,
trustees for benefit of creditors can not be avoided if assented to
or according to the forms required by the law o f this State; and if the tes­
by creditors whose claims exceed the amount of property assigned,
tator was originally domiciled in Maryland, although at the time of making
except by proceedings in bankruptcy begun within four months or by
the “ will,” or at the time of his death, he may be domiciled elsewhere,
proof of fraud. If there is property in excess of the claims of creditors
the said will or testamentary instrument then so executed shall be admitted
who have assented, the excess in hands of the trustee can be reached by
to probate in any orphans’ court of tfiis State; and when s'o admitted
trustee process. Acts done in good faith by the trustee under an assign­
shall be governed by and construed and interpreted according to the law
ment are valid, though the assignment be afterward set asidd, if the
o f Maryland, without regard to the ex domicilii, unless the testator shall
assignment is assented to in writing by a majority in number and value of
expressly declare a contrary intention in said Will or testamentary instru­
the creditors not secured. The trustee shall on acceptance of the trust
ment. [Acts 1891, Ch. 151.] No will, testament, codicil, or other testa­
give notice in writing to all known credits of the assignment and
mentary paper shall be subject to caveat or bther objection to its validity
acceptance thereof and shall deposit with the clerk of the city or town
after the expiration of three years from its probate. [Acts 1894, Ch. 405.]
wherein the debtor has his principal place of business a copy of the
When a person is nheard o f ior above seven years, and supposed to be
assignment. The above would probably not apply under the provisions
dead, the orphans’ court, under the provisions of Act o f 1908, Ch. 125,
of the National Bankruptcy Act.
may grant letters testamentary or of administration as the case may be.
Insolvency. There is an insolvent law, but it is superseded by the
National Bankruptcy Act of 1898.
A ttachm ent. All real estate, goods, and chattels not exempt, may
be taken in attachment on the original writ and held as security for
judgment, except that lands and tenements can not be attached in suit»
involving less than $20. Attachments may be made in suits by or
against non-residents as well as in suits by or against residents.
No bond is required to make an attachment.
Shares of stock in
corporations organized under laws of this State, or of United States,
SYNOPSIS OF THE LAWS OF MASSA­
may be attached by service on certain officers of the corporationDebtor may dissolve attachment by furnishing bond with sureties
CHUSETTS
to pay judgment obtained or value of property attached determined
by appraisement. Upon affidavit by the creditor or some one in
RELATING TO
his behalf, that he has reason to believe that the debtor intends to leave
the State and has property not exempt from attachment which he doe»
BANKING AND COMMERCIAL USAGES.
not intend to apply to the payment o f plaintiff’ s claim, the debtor may
be arrested and held to bail. Debtor against whom judgment is rendered
Prepared and Revised by Messrs. W m . E. L. D i l l a w a y and H. M. B u r ­
for over $20 may be subjected to sworn examination touching hi»
t o n , Attorneys at Law, Boston.
(See Card in Attorneys' List.)
property, and if he refuses to deliver up such property (not being ex­
empt from attachment), an order for arrest will issue and he can then
Acknow ledgm ents and Deeds. Acknowledgments may be made
apply and be examined to take the poor debtor’s oath. Proceedings in
before any justice of the peace or notary public in the State; when the . insolvency
dissolve attachments made within four months of first publi­
acknowledgment is made by any person without this State and within any
cation.
An attachment is dissolved by death of the delendant if admin­
other State, Territory or district of the United States, it may be made
istration
is
granted upon his estate upon application made within one
before any officer o f such State, Territory or district authorized bv the laws
year after his death.
thereof to take the proof and acknowledgment of deeds, ana when so
taken there shall be attached to the certificate of acknowledgment a cer­
B a n k s. In this State, safe deposit, loan, and trust companies are incor­
tificate of the secretary of the State or Territory in which such officer
porated under special act of the legislature, and are governed by the pro­
resides, under the seal of the State or Territory, or a certificate of the clerk
visions contained in chapter 116, Revised Laws, and amendments thereto.
o f a court of record of such State, Territory or district, in the county in
Under the general law ten or more persons and their successors may form a
which such officer resides, under seal o f said court, certifying as to the
corporation for the purpose of carrying on the business of banking. The
authority of such officer to take acknowledgments and as to the genuine­
general court may, by special act, annul or dissolve any such corporation;
ness of his signature. In deeds where there is more than one grantor,
but its dissolution shall not impair any remedy against the same for
the acknowledgment of one of them is sufficient.
liability previously incurred. The capital stock of each bank shall not be
No separate examination or acknowledgment of wife joining in a re­
less than $200,000.00 nor more than $1,000,000.00, except in cities or
lease of dower necessary. Conveyances o f land are made by deed under
towns whose population is not more than 100,000, the capital may be not
seal executed by the grantor or attorney having authority therefor. A
less than $100,000.00. No business shall be transacted until the whole
conveyance in fee, for life or for a term exceeding seven years, shall not
amount of its capital stock is actually paid in. Before commencing
be valid except as against the grantor and persons having actual notice
business the president and directors shall make a certificate specifying the
o f it, unless recorded in the county in which the real estate is situatea.
corporate name, which shall be different from any previously organized
Deeds must be under seal, a scroll being insufficient. No subscribing
in the Commonwealth; the location of said bank; the amount and number
witness is necessary. Release o f dower must be_ explicitly stated in
of shares of its capital stock; name and residence and number o f shares
deed, wife’s joining in deed merely, being insufficient.
of each stockholder, and the time when it is to go into operation; a eopy
of which certificate shall be filed with the secretary of the Common­
A c tio n s .' There are three classes of actions: contract, tort, and replevin.
wealth. No part of the capital stock can he sold or transferred until
Actions at law are begun by writs issued in blank form by the clerks of
the whole amount thereof is paid up. No person can hold more than
the several courts. No declaration need be inserted in the writ, except in
half the capital stock, exclusive of that held as security. In addition
cases of arrest on mesne process or of an attachment o f a vessel. Suits in
to the capital stock to which a bank is entitled, the Commonwealth may
equity are begun by filing a bill upon which a subpoena is issued by the
subscribe thereto an amount not exceeding 50 per cent of its authorized
clerk o f the court. Actions begun by trustee process must be brought in
capital, when provision is made therefor by law. Said Commonwealth
the county in which the trustee or one of them resides or has his usual
shall be entitled to its proportionate share of profits and dividends. Upon
place of business.


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BANKING AND COMMERCIAL LAWS—MASSACHUSETTS.
the vote of three-fourths of its stockholders, a bank may increase its
capital stock to an amount not exceeding $1,000,000. No bank shall
have less than seven nor more than twelve directors. The cashier is
g-1Ve b0nd 'A 110] le-88 than ®20’ 000. with two or more sureties,
P H I H i upon his duties. The debts of a bank shall at no time
exceed twice the amount of capital stock paid in exclusive o f deposits not
bearing interest, nor shall there be due the bank more than double the
amount of capital stock paid in. Every bank is required to keep a reserve
m lawful money of the United States, equal to 15 per cent of its liabilhy
for circulation and deposits. Stockholders of a bank are liable in their
individual capacity for the payment of all the circulating notes remaining
payment proportlon to the 8tock they respectively hold when it stops
J K S T w ? * doi?S business in Boston, except in the suburban districts
which form a part of Boston, shall on every Monday morning transmit to
the secretary of the Commonwealth a statement, under oath of the
Iiresident or cashier, of the amount of capital stock, assets, and liabilities
o f the hank, including amount in the Boston clearing house, which
statement shall be based upon the condition of the bank on thè dav of
the week next preceding said Monday. Monthly reports are required
from every bank m the State, not included in those above mentioned
to be made to the secretary of the Commonwealth. These reports are
published m one or more oi the daily papers in Boston on the Wednesday
after same have been received. Every bank is required to make an
annual report to the secretary of the Commonwealth of the condition of
its affairs at 7 o clock on any Saturday afternoon which the governor
may direct, within fifteen days from the time designated, certified bv the
cashier and a majority o f the directors. Any committee appointed bvthe
general court may examine into the affairs of any bank, and shall have
free access to its books and vaults. Commissioners of savings banks
shall visit once m every year, and as much oftener as they may deem
expedient, all such banks, and examine all their affairs, and make such
inquiries as may be necessary to ascertain their condition, and make a
report of such investigation to the general conrt.
Chattel M ortgages. Chattel mortgages must be recorded in the
records of the city or town where the mortgagor resides when the mortgage is made, and in the city in which he then transacts business: every
mortgage must be recorded within fifteen days of the date; until recorded
fi,A ^ ortgage,18lnot valld excel)t between the parties. On loans less than
$1,000 secured by mortgage, the rate of interest can not exceed 18 per
cent. It is a, criminal offense to remove, sell, or conceal mortgaged
property.
a &
. Corporations. By Special Act of 1903, Chapter 437, the law ofbusiiness c o /porations was revised and applies to all corporations organized
in this commonwealth for the purpose of carrying on business within the
commonwealth for profit, except the following: Banks, savings banks
co-operative banks, trust companies, surety or indemnity companies’
safe deposit companies, insurance companies, railroad or street railway
companies, tdegraph or telephone companies, gas or electric light, heat
or power companies, canal, aqueduct or water companies, cemetery com­
panies, or any corporations which now have or may hereafter have the
right to take or cond. mn land, or to exercise franchises in public ways
and corporations to buy and sell real estate, or to sell and distill intox­
icating liquors.
Under this act three or more persons may associate together and form
a corporation for carrying on any lawful business not included in the
above provision«. Such a corporation must have a capital of not less
than $1,000 There is no maximum limit. The shares must have a par
value of not less than $5. The stock may be divided into two or more
classes with «uch prsfererces, voting powers, restrictions and qualifica­
tions as may be fixed by the agreement of association Upon due organi­
zation o f the a-sociates and filing a copy of the agreement of associaiion
with the commissioner of corporations and on payment, of a fee of oneforti-th o f 1 percent of the capital but not less than $10, a certificate
oi incorporation is issued by the secretary of state. The capirai stock
may be issued for cash property, tangible or intangible services or
expenses. The amount o f capital stock may be increased from time to
time. The corporation must-have not less than three directors, president
clerk and treasurer. The directors, treasurer and clerk are elected by
the stockholders The president is chosen by and from the board of
dirtc ors. The clerk must be a resident o f the Commonwealth. Meet­
ings of stockholders m ‘.st be he'd within the Commonwealth, but direc­
tors may meet wituin or without the Commonwealth Voting by proxy
is permitted, but no proxy dated more than six months before the
meeting nam ed’s valid. Any corpotation may hold, purchase, convey,
mortgage or lease such real or personal property as the purposes o f thè
business may require.
Every such corporation is required to file an annual report of its con­
dition, and if its capital stock is over $100,000. to file a written statement
under oath by an auditor It is also required to make an annual return
to the tax commissioner. Every corporation organized under the general
law is taxable locally upon all real estate and machinery owned by it in
the Commonwealth, and is subject to a franchise tax aggregate
market value of its shares after deducting therefrom the value of real
estate and machinery subject to local taxation as above, and the value of
any property of the corporation situated in another State or country
and subject to taxation there.
E rery Foreian Corporation which has a usual place o f business here,
or is engaged here permanently or temporarily in the construction, erec­
tion, alterai ion or repair of a building bridge, railroad, railway, or
structure of any kind, shall before doing business here appoint the com­
missioner of corporations its atiorney'for the service of process, such
authority to continue as long as any liability remains outstanding against
it in this Commonwealth; and shall file with the commissioner of cor­
porations a copy of its charter and by-laws, and a r ertifleate setting forth
its name, location, names and addresses of its officers, date of its annual
meeting, amount o f its capital authorized and issued, the number and
par value of its shares, the amount paid thereon, and details of any pay­
ment thereof not made in money. They are required to file annual
statements with the'commissioner of corporations showing their con­
dition. Officers of a foreign corporation are liable for all debts and
contracts made while they are such officers if any statement or report
required by law made by them is known to be false.
Courts. Terms and Jurisdiction. Trial justices may severally hold
courts within the counties for which they are appointed, and shall have
original jurisdiction, exclusive of the superior court, o f all actions of
contract, tort, or replevin, where the debt or damages demanded or
value o f the property alleged to be detained does not exceed $100,
and concuirent jurisdiction with the Superior Court of such actions
where such amount exceeds $100 and is less than $300. Police and
district courts may in their respective counties exercise the same
powers, shall have the same jurisdiction, civil and criminal, and shall
perform the same duties and be subject to the same liabilities as
trial justices. The Supreme Judicial Court has original jurisdiction ‘


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Federal Reserve Bank of St. Louis

1191

m all equity matters and may on appeal hear all matters determined
by the Probate Court, and determine questions arising under willte.
¡superior Court has jurisdiction where the amount claimed exceeds $20.
•l?1(iipai,®our-t ml tde city °i Boston has jurisdiction concurrently
with the Superior Court in the county of Suffolk, in actions where the
debt does not exceed $2,000, provided one or more of the defendants
resides or has his usual place o f business in the city of Boston.
D ep o sitio n s. The deposition of a witness without the State may
De taken under a commission issued to a person in any other State or
country by the court in which the case is pending, or it may be taken bv
a commissioner appointed by the governor for that purpose. Every
deposition taken under a commission must be upon written interrogatories, to be exhibited to the adverse party, and cross-interrogatories may be
filed by him if neither party to the action shall attend at the taking 0f
the deposition or be represented by attorney.
divorce may be granted for adultery, impotence, cruelty,
desertion for three consecutive years, intoxication, drunkenness by use o f
opium and other drugs, cruel and abusive treatment, neglect to support
Uai,t’ i;enue+nCe
five 7 ea,rs or more imprisonment. The parties must
aave llT,ed
as husband and wife in this State; and cause must have
occurred m this State, unless the parties had theretofore lived in this State
as husband and wife, and one of the parties lived here at time of cause;
except that when libelant has lived here for five years next preceding
hling of libel or for three years if parties lived here at time of marriage.
A divorce may be granted for any lawful cause wherever it occurred. Ali
decrees of divorce are granted nisi to become absolute in six months unless
otherwise ordered. Either party may marry again but the libelee not
Within two years from entry of final decree.
i B B ! A wife is entitled to dower in this State as at
IP A WHMCT s.hall on the death of the wife bold one-third
of her land for his life, this interest is known as enrtesy. If ihe deceased
1l®ue’ the surviving husband or widow shall take $5,000 and
one-nalt of the remaining real estate and personal property . If deceased
leaves issue, the surviving husband or widow takes one-third of the
remaining real estate and personal property. If deceased leaves no kin­
dred, a surviving husband or widow shall take the whole of the remain­
ing personal property.
E x e cu tio n s can not issue until twenty-four hours after judgment
and an ongmal execution must be issued within one year after
pi —
.,1S entitled, to sue out the same. Executions in all courts are
returnable within sixty days. There is no stay of execution except by
special order of court. Executions may be served by levy upon real or
personal estate of the debtor or by arrest when arrest is allowed. Certain
personal property and real estate are exempt from levy.
E x e m p tio n s . Homestead, if recorded, to the value of $800 NecesM a n B B B B of family, certain specified articles of household
furniture, and $300 worth m addition thereto; library, $50; tools and
implements, $100; stock, $100; boats and fishiAg tackle, etc., $100; one
cow, six sheep, one swine, and two tons of hay, sewing machine, neces­
sary wearing apparel, pew in church, etc. Materials and stock designed
and necessary for carrying pn his trade and intended to be used or
wrought therein, not exceeding $100 in value. Shares in co-operative
associations not exceeding $20 in value, funds of railroad relief societies
officer01611^ msilrailce benefits, uniforms, arms, and equipments of militia
a: a
_________ ,

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JftDU O T

more+l • 1 be good unless the purchaser accepts and receives part, or gives
something in part payment or unless a memorandum in writing is made
of the bargain and signed by party to be charged. No action can be
brought in the following cases unless the contract is in writing and is
signed by party to be charged or his agent: 1. To charge an executor
administrator, or assignee m insolvency. 2. To charge a person for thè
debt of another. 3. On a contract for the sale of real estate or interest
therein. 4. On an agreement not to be performed within one year.
ooF°AlldA ^ :,. 'iirle following are legal holidays in this State: February
22d, April 19th, May 30th, July 4th, first Monday in Sept ember, Thanks­
giving Day, Christinas or the day following when any of the four days
first mentioned or Christmas day occurs on Sunday. (Saturday after 12
o clock noon for banking purposes.)
11to res t. Legal rate, 6 per cent, which is allowed on judgments
There are no usury laws, except on loans less than $1,000, and any rate
may be reserved or contracted for in writing, and rate reserved in note
is payable after maturity of note as before; loans less than $1,000 shall
be dischargable upon payment or tender of the sum actually borrowed
and interest at rate of 18 per cent per annum, together with a sum for
actual expenses of making the loan, not exceeding $5; all payments in
excess oi said rate shall be applied to discharge of the principal. No
bond can be issued by a corporation at more than 4 per cent.
J u d g m e n ts may be entered within four days of default, but do not
constitute a lien upon realty or personalty of debtor not attached on
fcne original writ. Are not outlawed for twenty years. Foreign judgments are proved by a copy of the record.
L im it a t io n o f Suits. Contracts or liabilities, express or implied
and not under seal, six years; real actions, those upon an attested note
if suit is brought by original payee or his executor or administrator’
and personal actions on contracts not limited, twenty yeqrs. Revivor:
Part payment by the party sought to be charged or new promise to pay
m writing. Absence from the State prevents the running of the statute
of limitations as to a defendant until he comes into the State. The
statute does not run against infants, married women during coverture
insane persons, those imprisoned, and those absent from the State.
’
M a rrie d W o m e n . The real and personal estate of a married
woman, acquired at any time, remains her sole and separate property,
not subject to the control o f her husband, nor liable for his debts.
Married women may carry on trade or business, make contracts, sue
anq be sued, in all matters relating to their separate property, and such
contracts are not binding upon the husband. W ife carrying on busi­
ness on own account must record certificate with city or town clerkneglect to do this renders her property so employed liable for hus­
band’s debts, and renders husband liable for her debts thus contracted.
Transfers can not be made direct from husband to wife, but must be made
through a third person. (See Bower and Curtesy, as to rights o f hus­
band in estate of deceased wife).
M ortg a g e s. Mortgages now in common use contain a provision
authorizing a sale of premises in case of a breach of any of the con­
ditions. Power of sale mortgages may be foreclosed by a sale in accord­
ance with_ the provisions of the power contained in the mortgage, and
an affidavit that the mortgagee has complied with the provisions of the
mortgage shall be recorded in the registry of deeds within thirty days
after the sale. Notice of the sale must be published once a week for
three weeks (sale to be not less than twenty-one days after first publica-

BANKING AND COMMERCIAL LAW S—MICHIGAN

1192

tion), the publication to he in the city or town where property is situated
<jr if no paper so published, then in a paper published in the county.
Proper execution of the power of sale forever bars all right of redemp­
tion. Mortgages may also be foreclosed by entry and peaceable posses­
sion for three years, which entry must be certified by two witnesses.
Possession may also be obtained by action at law.
Motes and B ills o f Exchange. The law o f negotiable instru­
ments is codified in Revised Lsws, Ch. 73, taking effect January 1, 1899.
It does not apply to instruments made and delivered prior to that date.
An instrument to be negotiable must be in writing, signed by the
maker'or drawer; must be a promise to pay a sum certain in money, on
demand or at a fixed time payable to order or bearer. I An instrument
payable upon a contingency is not negotiable. The valid1ty and nego­
tiable character of the instrument are not affected by the fact that it is not
•dated, or does not state when payable. An instrument is payable on
demand when it is expressed payable on demand, or on [presentation,
or when no time for payment is expressed. When an instrument
is payable on demand presentment must be made within a reasonable
time- presentment must be made at a reasonable hour on a business day,
at the place specified; when no place is specified or address given then at
the usual place of business or residence; the instrument must be exhibited
and when paid delivered to party paying it. Presentment for payment is
dispensed with when the drawee is a fictitious person, or by waiver of
presentment. Every negotiable instrument is payable at time fixed therein
without grace; when the day o f maturity falls on 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 those payable on demand may at
option of the holder be presented for payment before 12 o’ clock noon
on Saturday, when that entire day is not a holiday, iff? .
The acceptance of a bill o f exchange must be in writing and signed by
the drawee. The drawee is allowed twenty four hours after presentment
to accept the bill.
I
I
.
i
When a foreign bill is dishonored by non-acceptance it must be
protested for non-acceptance; if not so protested the drawer and indorsers
are discharged.
,
.
...__
A negotiable promissory note is an unconditional promise in writing
by one person to another, signed by the maker, to pay on demand or at a
fixed time a sum of money to order or to bearer. A check is a bill of r
exchange drawn on a bank, payable on demand. A check must be
presented for payment within a reasonable time after its issue. When a
check is certified the drawer and indorsers are released.
A Bank includes any person or association of persons carrying on
business of banking, whether incorporated or not.
/
The Negotiable Instrument Act of Massachusetts is about the same as
the law now in operation in New York, Connecticut, Colorado, Florida,
Maryland, and Virginia. All persons becoming parties to promissoiy notes
payable on time by a signature in blank on the back thereof, shall
be entitled to notice of the non-payment thereof the same as indorsers.
Checks drawn on a bank may be paid notwithstanding the death of
drawer if presented within ten days after date, and a savings bank
order if presented within 30 days after date.
' Suits. Civil actions in general, except those concerning land (if one
o f the parties lives in the State), must be brought in the county where
on e of them lives or has his usual place o f business. Where all parties
are non-resident, action may be brought in any county. Attachment
o f property owned by defendants residing out of State sufficient to give
jurisdiction in suit after notice published by order o f court. Such
notice to be given within one year from the entry of the suit. Persons
«commorant in State may also be arrested on mesne process and held to
bail.
T a x e s are assessed as o f the first day o f May in each year, and on
real estate are a lien for two years after they are committed to the
collector; but the collector may sell real estate for taxes after two
years have elapsed, unless the estate has been alienated prior to the
giving of the notice o f such sale. If not paid on demand, collector
may sell after advertisement. Owner, his heirs or assigns, may redeem
within two years by paying or tendering to the collector when he
exercises the power o f taking, or to the purchaser of the sum paid
by him, with 10 per cent interest and all necessary intervening charges,
and person having title may redeem in two years after notice if prop­
erty is taxed to a person unknown, or to tenant or occupant not owner,
or wrong person or mortgagee of record. The purchaser under a tax
sale if resident in the city or town where the estate is, must record
his residence or place of business. I f he resides elsewhere he must
appoint an agent or attorney and record such appointment.
Transfer o f Corporation Stock. The delivery o f a stock'certifi­
cate of a Massachusetts corporation to a bona fide purchaser or pledgee,
fo r value, with a written transfer o f the same, or a written power of attor­
ney to sell, assign or transfer the same, signed by owner o f certificate,
shall be a sufficient delivery to transfer the title as against all parties.
Trustee P r o c e s s . All personal actions except replevin, and actions
o f tort for malicious •prosecution, slander, libel, or assault and battery
may be begun by trustee process, and goods, effects, or credits of defend­
ant in hand of a third person may be attached and held to satisfy final
judgment.
W ills . Any person of full age may make a will disposing o f his
estate. The will must be signed by the testator and attested by three
witnesses in presence of the testator. A married woman may make a
will, but such will shall not deprive her husband o f his tenancy by the
curtesy in her real estate, or of a life estate in one-half thereof if they
'have had no issue born alive.

SYNOPSIS OF THE LAWS OF MICHIGAN
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared an d Revised by J u l i a n G. D ic k in s o n , Attorney at Law
Detroit, Michigan.
A c k n o w le d g m e n ts of real estate instruments may be before one
•of the following officers: 1.— Within this State: A ny judge, clerk or
commissioner of any court of record, notary public, justice of ( the
peace or master in chancery. The official should^ certify that On
this day before me personally appeared— -— -— — - — to me known
to be the person or persons who executed the foregoing instrument
.and acknowledged that he (or they) executed the same as his (or


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Federal Reserve Bank of St. Louis

their) free act and deed.” Notary’s certificate must show date of
expiration commission. Such instruments must have two subscribing
witnesss. 2.B-In any other State, territory, or district of the United
States: Same officials as described above or any officer authorized
by the laws of such State, territory, or district, or before a com­
missioner appointed b y the Governor of this State for that purpose.
Anv such instrument may be executed according to the laws of any
such other State or territory. If officer has no seal, certificate of the
Clerk of the County or district, or of the Secretary of State within
which taken shall be attached. 3 — In any foreign country:—
Notary public, or minister plenipotentiary, minister extraordinary,
minister resident, charge d;a£fairs, or commissioner or counsul ol the
United States, appointed to reside therein.
A c tio n s . Common law forms of pleadings are used, but in some
respects modified b y statute. Non-resident plaintiff’s must give
security for costs.
A d m in is tra tion of estates: In Probate Court of each county.
Claims are passed on by Judge of Probate or commissioners appointed
for each estate; within such time allowed b y the court, not exceeding
in first instance eighteen months nor less than six months; may be
extended not to exceed two years from date; the Court may revive
commission any time before estate is closed and allow further time three
months to examine any claim; an appeal to circuit courts from
allowane or disallowance of any claim. All claims barred, not pre­
sented before administration is closed:—
A d m in is tra tion of intestate estates is granted: 1st, to surviv­
ing husband or wife, or kin or grantee, or such one of them as
judge may appoint, or as they may request. 2nd, to one or more of the
principal creditors. 3rd, to such other person as the judge may think
proper. Non-resident administrators and executors appointed m
other states, territories, or foreign countries cannot sue as such in this
State without procuring administration in this State.
A ffid a v its: may be taken by any judge, master in chancery, clerk
of court, justice of the peace, police magistrate, notary public, or
circuit court commissioner. Any oath authorized or required to be
made, without the State for use in judicial proceedings here, must be
authenticated b y judge of a court having a seal, and the genuineness
of such judge’s signature, existance of the court, and that such judge
is a member thereof, certified b y the clerk of the court under the seal
thereof. If in any other state or territory, may be taken before a com­
missioner appointed b y the Governor of this State, or any notary public
or justice of the peace authorized b y the laws of any such state or
territory to administer oaths therein.
In actions at law affidavits of amount due on open and stated
accounts, attached to and served with process as commencement of
suit make a prima facie case, unless denied b y the defendant s affidavit
filed and served with plea.
A lien s. May inherit or purchase and hold and convey personal
and real estate.
A r b itr a tio n .’ Competent parties to any controversy which is or
might be the subject of an action at law or suit in equity, may agree
to arbitrate, and judgment of any circuit court rendered upon the
award. No arbitration of claim of any person to any estate m fee
or for life in real estate.
A rrest. B y wrjt of capias in personal actions in tort and in. actions
for money collected b y any public officer; or upon promise to marry;
also b y warrant allowed b y any justice of the peace or judge of a court
of record, under the fraudulent debtor’s act, when the creditor has
commenced suit or obtained judgment and the debtor has disposed
of or concealed, or is about to dispose of or conceal property liable
to execution, or the debt was frauduently contracted.
A ssig n m en ts for thé benefit of creditors are void unless made
without preferences; must comprise all of assignor’s property not
exempt from oxocufcion. The circuit court in chnncery bus supervisory jurisdiction of such assignments.
A tta c h m e n ts. Writs may be issued from justice and circuit courts
on affidavit showing: debt due on express or implied contract, and
either that the debtor has absconded or is about to abscond from
the' State or has assigned or disposed of or is about to assign and
dispose of his property with intent to defraud his creditors; or is a
non-resident of the state, or a foreign corporation. May issue from
the circuit court for debt not due but to become due, upon satisfactory
showing to the circuit judge, but cases judgment cannot be taken until
debt is due. May issue in actions of tort against non-residents m
certain cases.
B a n k s. Incornoration of:— Any number of persons not less than
may associate to establish for a period not to exceed thirty years;
| five
commercial banks; savings banks, and banks having lor both classes.
Capital required is graded— $15,000 to $100,000, according to popula­
tion of cities or villages where cpnducted. Upon filing articles of
association, commissioner of banking department and Secretary ol
State issue certificates of organization; board of directors chosen by
the stochkholders. No more than the legal rate of interest m advance
PW11 be received; file correct list of stockholders with commissioner
of banking, and county clerk and report four times a year to be published
in newspaper where bank is conducted. Commercial loans, not to exceed
50 per cent of the capital; on real estate securities, by two thirds vote
of directors, except to secure debts due the bank. Savings deposits
payable as directors prescribe; comm ercial. deposits payable on
demand. Banks combining commercial and savings deposits cannot
issue post notes nor any bill or note or certificate as money. Savings
depositors preferred in distribution of savings department funds.
Stockholders individually liable equally and rateably and not one
for another to the amount of the par value of stock, for the benefit
of depositors. I All transfers of property, and payments of money
after actual or contemplated insolvency to prevent legal application
of assets null and void; total liabilities of any borrower shall not
exceed one tenth part of the whole capital and surplus, may be
increased to one-fifth b y two-thirds vote of directors; not to issue
certificates of deposit for borrowed money nor make partial pay­
ments on such certificates; not liable to depositors for payment of
a forged or raised checks unless notified within three months alter
return of voucher.
Taxation. All shares at their cash value assessed against stock­
holders, and bona fide indebtedness of each stockholder may be set
off against such assessment; taxes not paid b y stockholders, bank s
duty to pay.
.
, .
H ,
.
Trust deposit add security companies may be incorporated under
the general laws of the State applicable thereto. Seven or more
persons may associate to establish— capital graded from $100,000

BANKING AND COMMERCIAL LAWS—MICHIGAN.
to $5,000,000 according to population of cities where conducted;
deposit with the State Treasurer fifty per cent of the capital stock
in bonds or real estate mortgages; worth double the amount seemed;
powers such as are customary for trust companies. They cannot
d o any banking business.
C ollatera ls. Stocks, bonds or other personal property pledged
as collateral security for payment of money or the performance of
any obligation, upon default may be sold at public, (or private sale
if so authorized b y the contract) to satisfy the debt; but before public
sale, ten days notice must be given and served on pledger or legal
representative personally or by mail; such sale must be between
nine o’ clock forenoon and sunset, at a public place in the township,
city, or village where held.
C o n d itio n a l Sales. Are valid between the parties: if consignee
or purchaser, on condition title is retained by seller, is authorized by
the contract to sell, all such sales are valid. The consignee or pur­
chaser cannot make valid sales against the legal owner without the
authority of consignor or legal owner. (See Liens.) (See Frauds.)
C o n v e y a n ce s . Any person of full age or otherwise capable may
convey b y deed any interest in lands, whether in actual possession
or not. | All grants and devises of lands to two or more persons create
estates in com m on; no joint tenancy, unless expressly so declared,except
common; no joint tenancy, unless expressly so declared, except such
as are made in trust or to executors, and except such as are made to
husband and wife, who take as “ tenants by entirety.’ ’ The words
“ conveys and warrants’ ’ in the deed describing the premises and
specifying the consideration, dated, duly signed and acknowledged
by grantor are sufficient to convey title in fee simple and to warrant,
that grantor and his heirs and personal representatives is seized of
the premises, has good right to convey same, guarantees quiet pos­
session thereof, and that he will warrant and defend the title against
all lawful claims. The words “ conveys and quit claims’ ’ "du ly
signed, sealed and acknowledged b y grantor are sufficient to convey
grantor’s interest, The words “ mortgages and warrants’ ’ and duly
described premises, specifying “ to secure the payment’ ’ and reciting
the sum for which mortgage is giving and the notes and other
evidences of debt secured thereby, mortgage being dated, signed,
sealed and acknowledged by grantor, is sufficient and warrants perfect
title in the grantor and against all previous incumbrances; omitting
the word “ warrants” sufficient, but without any warranty. Dower
and homestead rights not waived unless wife joins in the mortgage.
No homestead right will avail against the mortgagee if there is no
wife, nor if wife joins in the mortgage. Married women of full age
joining with husbands in any deed. Mortgage, power of attorney
or other writing, shall be bound in respect to their own title.
C o r p o ra tio n s. Banks, mining, manufacturing, insurance— fire,
marine, accident, burglary— printing and publishing, manufacturing
and mercantile, or a union of the two, partnership associations, real
estate associations, real estate, railroads, street railways, co-operative
benefit associations,_ co-operative savings associations, and religious
societies, are respectively organized under State general laws; required
to file with the Secretary of State, articles of association.
Business corporations. Three or more persons may organize. One
half of capital must be actually subscribed and at least ten per cent
either in money or property must be paid in ; if in property same
must be for the purpose of the business, and described and its value
specified in the articles. Stock holders vote in person or by proxy.
Each share has as many votes for directors as directory numbers,
and the aggregate vote may be distributed for one or more of
directors. May issue preferred and common stock of the par value
of $10 or $100. Preferred entitled to dividend not to exceed 8 per
cent quarterly, semi-annually or annually and if not paid be ac­
cumulated, a n d p a id , before any dividend paid on the common.
Articles of association to be recorded in the County Clerk’ s office
of county where operations carried on, and office of the Secretary
of State. May hold real estate for the purposes of the corporation
and such as acquired as security or in payment of debts; managed by
not less than three directors chosen by the stockholders annually
hold office until successors are chosen; make duplicate reports in
January or February annually for the fiscal year last ending, of (the
financial condition and property of the corporation to Secretarv of
State; stockholders are liable for labor debts; they make all by-laws
for corporation. Foreign corporations organized under the laws of
an y other state of the United States or of any foreign country,
unnlawful to carry on business in this state until certificate of
authority procured from Secretary of State; not capable of making
valid contracts in this State until authorized to carry on business;
unlawful for any person to act as agent of until authorized to do
business. Sales of goods or merchandise by the right of inter-state
commerce not affected b y state laws.
C ou rts. T e rm s a n d J u ris d ic tio n . Circuit courts, holding two or
more terms annually in each county, have original jurisdiction in all
cases of law and equity wherein the amount in controversy is $100
•and upwards; and have appellate jurisdiction from justice of the
peace Probate courts and other inferior tribunals. Justice courts in
•each county have jurisdiction of cases at law involving from $100 to
$500. In Grand Rapids is a “ Superior Court” for civil cases, limited
to parties resident of the city. Probate courts in each county have
jurisdiction of estates of deceased persons and testamentary trusts.
■Supreme court has final appellate jurisdiction from circuit, municipal
and recorders courts.
D a y s o f G ra ce.

Abolished.

D ep o sitio n s. Testimony of any witness without the State or
more than _fifty miles from the court may be taken de bene esse,
before any judge of any state or of the United States, or of any foreign
country, or before any circuit court commissioner in this or any
•other state or of the United States, or any commissioner of this
State, any consul or consular officer, Justice of the peace!, officer or no­
tary public authorized to administer oaths in the state or county where
taken and not interested as attorney or counsel or in the event of the
cause; reasonable notice given in writing by party or his attorney
proposing to take, to opposite party or his attorney of record, stating
names of witnesses, time and place of taking and official before whom
to be taken. Commissions to take depositions of any witnesses
may be issued by circuit court wherein the suit is pending or by the
judge or register thereof, or b y a justice of the peace in a suit before
him on written interrogatives. Fees for taking, certifying, sealing
and forewarding $2; for each 100 words in deposition ten cents and
copies three cents. Each party pays for his own examination or cross
■examinaton in the first instance.

76


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Federal Reserve Bank of St. Louis

1193

D escen t. Real estate and personal property of intestate after
payment of debts and administration expenses and allowances, as
follows:
Real Property.— In equal shares to children and issue of any deceased
b y representation; if no such children or issue nor husband or widow,
to all other lineal descendents. If surviving husband or widow, one
half to such survivor, remainder to father and mother or survivor;
if no issue or parents, husband or widow, equally to brothers and
sisters and issue b y representation; if none such relatives; to next of
kin in equal degree through nearest _ ancestor. If any surviving
unmarried child dies under age his inheritance to other surviving
children and their issue by representation. If husband and wife sur­
vive and no other kindred; to husband or wife; and if no foregoing
relatives estate escheats to State. Illegitmate children heir to mother;
intestate, estate, to mother or her relatives: become legitimate b y
parents inter-marriage or father’s written acknowledgment.
Personal Estate.— Residue— one third to widow, two thirds to
children or issue b y representation; one child; one half to child
and one half to widow; no widow or child; to all lineal descendents
equally. If widow and no children or issue, to widow, not ex­
ceeding $3,000; estate excess of that; one half excess to widow,
other half to surviving parents, and if none such to brothers or
sisters; and none such, all such excess to widow. Married women
intestate, nne third to husband, two thirds to her children or their
issue by representation; only one child or issue of deceased child;
to husband and such child equally; if no child- or issue of deceased
child, one half to husband and other half to surviving parents, and
if none; to brothers or sisters or issue of them and if nolle, all to hus­
band. In any other case same as for real property. Estates by
courtesy abolished.
D iv o r ce s. Granted by circuit court in chancery. Grounds.—
incompetency at time of marriage, adultery, imprisonment for three
years or more without pardon, desertion for two years, drunkeness,
absolute divorce in other States, extreme cruelity and nonsupport.
Complainant must reside in this State one year immediately pro­
ceeding complaint; if cause occurred out of State, residence two
yearn required unless cohabitation is shown while within the State.
Suit in county where complainant resides; process may be served in
? i y county in the State.
D o w e r . Wife entitled to use of one third part of all lands owned
by her husband as estate of inhertiance any time during marriage.
No dower as against mortgages for purchase price, or mortgages made
before marriage, except in surplus. Must exercise option to take
dower in lieu of rights under will or Statute within one year after ad­
ministration; residing in this State and eighteen years of age and
upwards may bar by joining in husband’ s conveyances and mort­
gages or b y deed alone to one who has husband’s title, intent to bar
being expressed; or by jointure secured as bar.
E x e cu tio n . May issue to any county at once, unless stayed after
judgment in circuit court, in justice courts, expiration of five days: not
liens on real estate or personal property until levy by proper officer.
Real estate is sold without appraisement to the highest bidder,
except homestead, to determine excess of value above $1,500 re­
demption claim. Defendant or his heirs or assigns may redeem within
twelve months, his judgment creditors and others having valid liens
within fifteen months from date of sale. Execution against the
body may be issued on all judgments in actions of tort. Personal
property levied on, after setting off exemptions, may be sold on
six days notice at public sale, to highest bidder to a sufficient amount
to satisfy the debt and costs; no redemption after such sales. Exe­
cutions from justice courts do not run against real estate.
E x em p tion s. Homestead-—selected b y the owner and occupied
by him; not exceeding 40 acres of land and dwelling thereon; or
one lot with dwelling thereon within any recorded town plat or city
or village not exceeding in value $1,500. Same cannot be alien­
ated or incumbered without consent of wife or sold on any execution
or any other final process from any court, unless appraised to exceed
the value of $1,500 and. that amount is paid or realized on sale under
such proecss. I Exemption of homestead continues during its occupa­
tion by the widow or minor children of deceased person who when
living occupied the same.
F ra u d . Criminal fraud— obtaining the signature of any person,
firm, or corporation with intent to defraud; fraudulently issueing or Sell­
ing or duplicating and disposing of any stock, scrip or evidence of
debt of any bank or other incorporated company of thisiState; issue of
any false receipts by warehousemen, merchants, or their agents— re­
ceipt ; or to wrongfully_ dispose of or convert property to their own
use after issuing receipt; wrongfully removing or disposing of any
personal property b y any agent delivered upon written agreement or
instructions; wrongfully to dispose of property covered by chattel mort­
gage by mortgagors or of property held by contract of purchase with­
out legal title b y such purchaser, or of property held under any lease
b y lessor. For any officer or stockholder of any bank or any other
person for such bank; to sign, issue or knowingly put in circulation
any note or bill of any such bank, before the capital stock is paid in,
or before the president and directors thereof have complied with the
law; for any officer or agent of_ any bank knowing such bank to be
insolvent or in contemplation of insolvency, or for any assignee of the
property of such bank to sell or dispose of any money or property of
such bank with intent to defraud, delay or hinder creditors thereof;
or for any agent or person to fraudulently obtain or dispose of any
money belonging to any insurance company organized in this State.
F ra u d s— Statute o f. No executor or administrator is liable on any
special promise to answer damages out of his own estates.
F ra u d , C ivil. Sales, transfers and assignments of stocks of
goods, wares merchandise and fixtures in bulk pertaining to conduct
of any business, 9therwise than in ordinary course of trade of seller,
etc., void as against creditors, unless the seller, etc., five days before
sale, make inventory of the goods and cost price to seller of each
article and unless the purchaser demands from seller list of names
and addresses of creditors and his indebtedness, and within five
days before taking possession and payment notifies every creditor of
Such sale.
G arn ish m en t. Process may issue in any action brought in any
justice court or circuit court on contract expressed or implied, judg­
ment or decree, to hold whatever property any person may own or
have belonging to the debtor. Bills of exchange and promissory
notes due in the garnishee’s hands at the time of serving summons
are garnishable. Property, real or personal, things in action, equitable
interests, held by fraudulent transfer from the debtor and any prop­
erty liable to execution or to the payment of the debts of the debtor
in the garnishee’ s hands may be recovered; wages of any house­
holder not more than $30 and less than $8 for his personal la b or,

1194

BANKING AND COMMERCIAL LAW S—MICHIGAN.

and of any other person for labor not more than $15 and not less
than $4; and benefits payable b y fraternal beneficiary societies,
shares in building and loan association of any debtor, except as to
one having a homestead exemption, are exempt from garnishment.
H u sb a n d a n d W if e . If sued together she may defend and if either
neglect to defend the other may be ordered to defend for both. If
he deserts her she may be authorized b y the probate court to prosecute
or defend in his name. If either wrongfully retains the other's
property, acquired before or after marriage, the owner may sue for
same as if unmarried. Neither liable for the debts of the other before
or after marriage, nor earnings or property of either nor the income
thereof ; nor shall either be" liable to make compensation for
labor or services rendered for the other. Either may constitute the
other an attorney in fact to dispose of property. Expenses of family
and children’s education are not chargeable upon the property of the
wife but are chargeable against the husband and he may be sued
therefor.
In te re st. Legal rate 5 per cent, but b y written agreement may be
charged not to exceed 7 per cent. Forfeiture of all interest is penalty'
for usury. When any installment of interest upon any note, bond,
mortgage or other written contract shall become due and remains
unpaid, interest is allowed on such installment from the time it became
due at same rate specified in the obligation or at the legal rare. , Legal
rate collectable on all moneys due on any written obligations and on
all moneys due on all contracts express or implied, whether verbal
or written; and on settlement of accounts from day of ascertaining
balance due; and on judgments from day of entry; and on verdicts of
jury from date to date of entry of judgments thereon. In computing
time of interest and discount on negotiable paper, a month means
a calendar month and a year a calendar yearfof twelve months.
J u d g m e n ts of courts of reeord are not liens on_ real estate or
personal property until b y levy thereon of execution issued from the
courts upon such judgments. Liens under execution levied upon
real estate exist five years from and after the levy. _Judgments
expire by limitation in ten years from date of entering in courts of
record and six years in justice courts, and cannot be renewed except
b y action at law thereon before expiration. _ Judgments of the justice of
the peace may be entered in the circuit courts on transcript duly
taken to the circuit court and thereupon become judgments of such
circuit courts.
L ie n s. Any person, who pursuant to a contract with any owner,
part owner or leasee of any land, furnishes labor or materials in
the construction of a building, etc., on such land, shall have a lien
on such structure and land to the extent of one quarter section or if
in a city dr village, the lot or lots upon which such structure
is situated. And any sub-contractor, who furnishes materials or
labor in carrying foreward or completing such contract shall have
a lien upon such building and land to the extent of the interest of
such owner, etc.
A ny person, artisen, or tradesman for labor and
skill applied upon any property delivered for that purpose shall have
a prior lien for amount due for such labor. Hotels, boarding houses
and lodging houses have a lien upon baggage and other valuables of
guests, boarders or lodgers for accommodations. Any person keeping
and caring for domestic animals intrusted to them for that purpose
have a lien for proper charges.
L im ita tio n o f Suits. Judgments of courts of record and sealed
instruments ten years,_ justice court judgments six years; accounts
and notes and other simple contracts and for taking, detaining or
injuring goods, and chattels, six years from the date the action
accrued; revivor: part payment, or promise in writing to pay
Absences from the State deducted from the period of limitation.
Mortgages fifteen years after due or after last payment thereon. For
trespasses on lands assault and battery, false imprisonment, slanderous
words or libels and mal-practice against physicians, surgeons, and
dentists, two years. For misconduct of sheriff or their deputies, three
years, and for personal injuries three years. For the recovery of real
property five years where the claim arises against executors,
guardian's or sheriff’ s deed; five years where the defendant claims
and is in possession of lands under deed made b y auditor general of
this State for taxes; and b y minors and others under legal disabilities
three years after removal of such disabilities; in all other cases
fifteen years.
L im ite d P artn ersh ip s. May consist of one or more general and
one or more special partners. Specials contribute specific amount
of capital in cash or property at cash value, and if actually paid in
not liable for firm’s debts in excess of such special capital. General
partners transact the business of the firm.

promise in writing to p a y a sum certain in money, on demand or
at a fixed and determinate future time, to the order of a specified
person or to bearer.
A bill of exchange is an unconditional order of one person to another
requiring the drawee to pay to a certain person, or order, or bearer on
demand or at a fixed or determinate future time a certain sum of
money. May be payable in installments and contain provisions that
on default the whole sum of money shall become due with exchange,,
fixed or current rate, interest and attorney fees for collection. May
authorize sale of collaterals and confession of judgments.
If it
reads ‘ ‘ I promise to pay, ’ ’ all makers are jointly and severally liable.
Must not be payable upon contingency.
Cannot waive exemption
from execution. Need not specify “ for value received’ ’ nor placewhere drawn or. payable. If issued, accepted, or indorsed when over
due is payable on demand.
May be payable to two or more payeesjointly or one or more of several payees. _Want or failure of con­
sideration, a defense against one not a holder in due course, partial fail­
ure a defense pro-tanto.
One not a party, or the payee of the paper
placing a signature in blank on the paper before delivery becomes an
endorser. Indorser engages on due presentment the paper shall be
honored and that he will pay to holder or any subsequent indorser,
who may be compelled to pay; where maturity falls on Sunday or
on a holiday, payment due on the next business day; but where all o f
such day not a holiday may if payable on demand be presented before
noon.
Fraud in procuring signatures and delivery defense ¿gainst any
holder.
Presentment not necessary to charge anyone,primarily liable.
If
not payable on demand present on the day due; if on demand present
within a reasonable time after issue; bill of exchange payable on
demand present reasonable time after last negotiation.
Fraudulent or material alterations do not affect the original instru­
ments in the hands of innocent holder in due course.
Unconditional promise in writing to accept a bill of exchange,
given before or after drawn, valid in favor of all who take it upon
faith thereof for value; holder may decline qualified acceptance",
if he takes qualified acceptance, drawers and indorsers are discharged.
Protest of foreign bills of exchange may be made by a notary public or
any respectable resident of the place of payment in the presence o f
two or more creditable witnesses; drawee is not liable unless he accepts.
Check or a bill of exchange on a bank payable on demand, must bepresented reasonable time after issue, and if dishonored notice must
be given or drawer is discharged to extent of loss caused; does not
operate to assign any part of drawer’ s funds; bank is not liable
unless it accepts or certifies. If holder has check certified drawers
and indorsers are discharged.
The present negotiable instruments law of Michigan took effect
Sept. 16, 1905, and repeals all acts or parts of acts inconsistent with
its provisions; but does not apply to instruments made prior thereto
materially changes the law in this State and should receiye special
examination in every doubtful case.
P o w e r o f A tto r n e y . Almost every act that any person, firm or
corporation may perform, may be performed by an attorney in fact.
Conveyances, mortgages, or leases for more than three year’s termby attorney in fact, the power of attorney must be in writing signed,
sealed and acknowledged same as a deed of lands, to be admitted for
record or to proof thereof.
P ro b a te L a w .
P ro te st.

{See Administration of Estates)

(See Negotiable Instruments.)

R e p le v in . Goods or chattels wrongfully taken or detained m ay
be replevined b y owner or part owner or party entitled to possession.
Affidavit of plaintiff or agent necessary for issue of writ. If from
circuit courts plaintiff required to give bond with sufficient suretiesto the officer within twenty-four hours after seizure and appraisal
of the property which must not be delivered to plaintiff within
forty-eight hours; and in the meantime if the defendant shall give' sufficient bond to the officer he shall return the property to thesame person from whom he took it; in that case if plaintiff recovers
he may recover on the defendant’s bond; if he fails defendant
may recover on plaintiff’ s bond according as the judgment m ay
warrant. In justice courts bond with sufficient sureties must begiven and filed in double value of the property before writ issues.

M a rrie d "W om en. May make contracts in respect to their own
property and may hold and enjoy, and have the same rights and
remedies regarding their property as if unmarried. They may carry
on business in their own names with their own property b y consent
of their husbands; cannot enter into partnership with husband or
any other person and become liable for the firm contracts. Married
wom en’s contracts to pay or to become liable for debts of husbands or
other person voidable, may however charge their real estate or personal
property to secure such indebtedness b y deed, mortgage or contract.

T a x e s. State and county payable every year after December 1st
delivered to county treasurer March 1st, thereafter, and if delinquent,
bear interest 1 per ccent. per month. Returned to auditor general of
State, if not paid, and by him enforced b y foreclosure in chancery in
every county, and the taxable property sold under decree of thecourt b y County Treasurer, each parcel for the amount of taxes and
charges against same; redeemable one year thereafter and does
not become absolute until proceedings taken by purchaser for writ of
assistance, which must be instituted within five years by service of
written notice upon owners six months before application for such
writ. If decree regular and property taxable, and due notice is
given and served, purchaser is entitled, upon due proof thereof to writ
of assistance and possession unless redeemed pending the notice by
payment of double the amount paid b y purchaser and five dollars
for each parcel redeemed. City taxes are governed b y charter or by
the general act under which cities and villages are organized.

M o rtg a g e s on real estate, executed and acknowledged the same
as deeds; may be foreclosed under power of sale b y advertisement
or in circuit court in chancery of the county wherein the property
is situated.
Trust deeds not in customary use but may be made and
executed and will be treated as mortgages.
Chattel mortgages and bills of sale; intended as security b y mort­
gagor, signed and delivered to the mortgagee, sufficient between
the parties, but void as to creditors, subsequent purchasers and
encumbrancers in good faith and without notice, _ unless^ such
mortgages and bills of sale or true copies are filed in the city or
township clerk’ s office where mortgagor resides, or if non-resident
of State, in city or township where the property is_ situated; and
unless affidavit of mortgagor or of some one for him having knowledge
of the facts is annexed to the mortgage or bill of sale, showing con­
sideration is actual and adequate and in good faith. Without such
affidavit officers forbade to receive and file such mortgages; cease
to be valid against creditors, subsequent purchasers, and encum­
brancers in good faith, on expiration of year from filing date^unless
renewed within thirty days next proceeding expiration b y affidavit
of mortgagee showing his interest, etc., .filed and annexed to the
mortgage in said clerk’s office; likewise each succeeding year while
the mortgage exists.
N e g o tia b le I n s tr u m e n ts. A promissory note is an unconditional

W ills . C od icils. Every person of full age (21 years) aDd of sound
mind may make; must be in writing, signed b y testator or by someperson in his or her presence duly authorized by him or her and at­
tested and subscribed in his or her presence by two or more witnessescompetent as such at the time. If one of the subscribing witnesses
shall testify to the execution of the will in all particulars and testa­
tor was of sound mind at the time will was made, the court m ay
admit the will, in case no person appears to contest it; if none
of the witnesses reside in the State at the time of proving the
will, the court may admit the testimony of other witnesses to prove
testator’s sanity and execution and proof of the signature of testator
and subscribing witnesses. Probate of will conclusive of its due
execution and cannot be assailed collaterally. Foreign wills, duly
admitted to probate without the State, may be admitted and re­
corded in any County of the State in which testator left real or per­
sonal estate b y duly filing, an exemplified copy of said will and
of the record admitting same to probate. A nuncupative will in
which the value of the estate bequeathed does not exceed $300, duly
proved b y two witnesses, may be allowed. Wills may be revoked b y
burning, tearing, cancelling, or oblitering with intention of revoking
same by testator, or by some other writing signed, attested, and sub­
scribed in the manner provided for execution of wills but shall prevent
revocation implied by law.


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BANKING AND COMMERCIAL LAW S—MINNESOTA.

SYNOPSIS OF THE LAWS OF MINNESOTA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by E d w a r d P. S a n b o r n ,
Attorney at Law, St. Paul.
{See Card in Attorneys' List).
A c k n o w le d g m e n ts may be certified by the following officers:
1. Within the State b y a resident judge, clerk or deputy clerk of any
court of record therein, a notary public, justice of the peace, town,
city, or village clerk,. court commissioner, register of deeds or
county auditor, or their deputies, county Commissioner, or member
of the legislature. 2. Out of the State but in the United States b y a
judge of the Supreme, Circuit, or District Courts of the United States,
or of any court of record of any state, territory, or district, the clerk
or a deputy clerk of any such court, a notary, a justice of the peace,
or any commissioner appointed by the Governor of this State for that
purpose. 3.
In foreign countries by a notary public, or by any
minister, charge d’affaires, commissioner, consul, commercial agent or
other consular or diplomatic officer of the United States appointed to
reside in such country, and deputies of such officers. The form of
the certificate may be, “ On this.............. day o f ....................... . 19. .,
before me personally appeared.............................. described in, and who
executed the foregoing instrument and acknowledged that he executed
the same as his free act and deed.” If made outside the State the
impression of the official seal of the certifying officer must be affixed,
or there must be attached the. certificate of the clerk of a court of
record of the county or district in which it is made under his seal that
the signature of the certifying officer is genuine.
A c tio n s . The distinction between actions at law and suits in equity
is abolished. There is only one form of action. It is called a civil
action and must be prosecuted in the name of the real party in interest
except that executors, administrators, trustee of an express trust and
persons expressly authorized b y statute may sue without joining the
person for whose benefit the suit is brought.
A d m in is tra tio n o f E s ta te s . Estates of deceased persons are
administered in Probate Courts of which there is one in each county
presided over by the probate judge of the county.
In granting letters of administration preference is given: 1. To
the surviving spouse or next of kin or such suitable person as they or
either of them select. 2, If no application is made for thirty days
after death of intestate, to principal creditor or creditors, or some
person interested, and if deceased was native of foreign country to the
consul or other representative of that country residing in this State,
or to such competent and suitable person as he may select.
Upon granting letters the court makes an order limiting the time
within which creditors may present their claims. This time must not
be less than six or more than twelve months; but may be extended
for good cause to a date not more than eighteen months after notice
given of the order. On proof b y affidavit that there are no debts the
time limited may be three months. Notice of the order is given by
publication thereof once each week for three weeks in a newspaper in
the county. Claims not presented within time limited are barred.
Non-resident executors and administrators may sue in this State.
A lie n s. {See right to hold property.)
A r b itra tio n . All controversies which can be the subject of a civil
action may be submitted to one or more arbitrators for decision,
except a claim to an estate in fee or for life in real estate.
A rrest. There is no arrest for debt,
A ssig n m e n ts. Statutes relating to assignments for the benefit of
creditors are in force except as affected by the U. S. Bankruptcy Act
of 1898..
Practically they may be said to be superseded b y that act.
•A tta c h m e n t.
Before allowing a; writ of attachment, the court
must require of the plaintiff a bond in the sum of at least $250, and
an affidavit of the plaintiff, his agent or attorney (1) That the debt
was fraudulently contracted or (2) the defendant is a foreign corpora­
tion or non-resident or (3) has departed from the State as he believes
with intent to defraud or delay his creditors, or to avoid the service of
a summons or keeps himself concealed therein with like intent or (4)
has assigned , secreted, or disposed of his property with intent to delay
or defraud his creditors or is about to do so.
B a n k s. Three or more persons may incorporate as a bank. Capi­
tal required is $10,000; in towns of 1,000 or less population, $15,000;
in towns.of 1,000 to 1,500, $20,000; in towns of 1,500 to 2,000, and
$25,000 in towns exceeding 2,000 population. Capital stock must be
fully paid in cash before bank can do business. Stockholders are
individually liable for debts of bank in an additional amount equal to
the par value of stock owned b y them, and this liability) continues one
year after any transfer of the stock. At least one-fifth of the net
profits must be placed in surplus fund before any dividend is paid until
the surplus amounts to .20 per cent of the capital, and this surplus must
be maintained unimpaired.
Every bank must make to the superintendent of banks not less than
four reports each year which must be published. Liabilities to a bank
of any person, corporation or firm, for money borrowed, including
therein liabilities of the several members thereof, shall at no time exceed
15 per cent of its capital and surplus. - It must have a reserve equal to
one-fifth of all its matured or. demandable liabilities, one-half of which
must be cash, and the remainder may be balances due from solvent
banks. In case of insolvency or violation of the banking laws, the
superintendent of banks may take possession, and apply to the court
for a receiver.
B ills o f L a d in g . Warehouse receipts and bills of lading for prop­
erty in transit, unless the words “ not negotiable” appear plainly on
the face thereof, are transferred b y endorsement which shall carry the
title to the property and all rights of the endorser therein.
C hattel M o rtg a g e s. Every mortgage of personal property which
is not accompanied by immediate delivery and followed b y actual and
continued change of possession is void as to creditors and subsequent
purchasers and mortgagees in good faith, unless it is made in good faith,
attested by two witnesses, acknowledged and filed with the clerk or
recorder of the town or municipality in which the mortgagor resided


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1195

at the time of its execution, if .a resident of the State, or of that in
Which the property was then situated' if a non-resident. Duplicates
or copies certified b y any officer with whom the mortgage has been
properly filed, may be filed in other places wherein any part of the
property was situated when the same was made. As against creditors
of. the mortgagor and subsequent purchasers and mortgagees in good
faith the lien does not continue beyond the term of six years from the
date of filing the mortgage unless the indebtedness is not then due and
payable b y its terms, in which case it continues two years after the
maturity of the debt and no longer.
Chattel mortgages given by a married man or woman on property
exempt from execution must be executed by both husband and wife
if living.
C on v ey a n ces. Deeds and mortgages of real estate must be exe­
cuted in the presence of two subscribing witnesses and to entitle them
to record must be acknowledged b y the person executing the same.
Conveyances made out of the State may be executed as above, or
according to the laws of the place of execution.
C orp oration s. May be organized by any number of persons, not
less than three, for the purpose of engaging in any lawful business.
The amount of capital stock shall in no case be less than $10,000,
divided into shares of not less than $1.00 or more than $100.
The
incorporators must sign and acknowledge a certificate specifying: 1.
the name, general nature of business and principal place of transacting
the same. 2. Period of its duration if limited. 3. Names and
places, of residence of incorporators. 4. In what board its manage­
ment is vested, date of annual meeting at which such board shall be
elected, names and addresses of persons composing board until first
election. 5. Amount of capital stock, how the same is to be paid,
number of shares and par value of each, and if more than one class, a
description, and terms of issue and method of voting of each. 6.
Highest amount of indebtedness to which corporation shall be subject.
This certificate is filed with the Secretary of State and with the register
of deeds of the county in which the principal place of business is
located and published in such county two successive days in a daily
newspaper, or two successive weeks in a weekly.
Every stockholder in any corporation, except those organized for the
purpose of carrying on a manufacturing or' mechanical business is
liable to creditors of the corporation in an amount equal to the par
value of the stock owned by him.
Foreign Corporations. Every foreign corporation organized for
pecuniary profit before it can transact or continue business in this
State, acquire, hold or dispose of property or bring suit here must
maintain a public office here, appoint an agent residing in the county
where such office is located authorized to accept service of process,
and must .file with the Secretary of State an authenticated copy of
such appointment and of its charter and a verified statement showing
the. proportion of its capital stock represented b y its'property and
business in this State, and upon that it must pay a fee. This act does
not apply to exclusively manufacturing corporations, traveling sales­
men soliciting business for non-resident corporations, nor to those
engaged only in the business, of loaning money or investing in securities,,
nor to those organized to raise and improve live stock, cultivate farms, *
can fruits or vegetable?, nor to those whose sole business is transpor­
tation of freight or passengers by water.
C ou rts. District Courts hold one or more terms a year in each
organized county, have original jurisdiction in all civil actions at law
and in equity, and in all criminal cases where the punishment exceeds
three months’ imprisonment or a fine of more than $100.
The Supreme Court has appellate jurisdiction in all cases, but there
is no trial b y jury in that court. It has original jurisdiction in such
remedial cases as are prescribed by law.
Probate Courts have exclusive jurisdiction of matters connected
with the settlement of estates of deceased persons, minors, and insane
persons. Terms are held on the first Monday of each month in each
organized county.
Municipal Courts exist in certain cities, and are courts of record with
limited jurisdiction in civil and criminal actions.
Justices of the Peace have no jurisdiction in civil actions where the
amount involved exceeds $100.
D a y s o f G race are abolished except on sight drafts.
D ep osition s may be taken at any place within or without the
State upon notice in writing, stating the reason for taking the same,
the time,and place, and giving the opposite party one day for prepa­
ration, and. one day for every 100 miles, exclusive of Sundays and the
day of service, before any officer authorized to administer oaths.
D e sce n t a n d D istrib u tion o f P ro p e rty . Homestead descends to
surviving spouse for life, remainder to children and issue of deceased
children. If no children or, issue of deceased child, then to surviving
spouse in fee, exempt from debts not a valid charge thereon at time of
intestate’ s death. After payment of debts and certain allowances to
the surviving spouse out of the personal, property, the residue of the
estate descends as follows: 1. One-third to the surviving spouse,
balance in equal shares to children and lawful issue of deceased child
by right of representation. 2. If no surviving child, or lawful issue
of deceased child, the whole estate descends to surviving spouse, if any.
3. If no issue or surviving spouse, to father and mother in equal
shares, or if but one survive, to such survivor. 4. If no surviving
issue, spouse, father or mother, in equal shares to brothers and sisters
and lawful issue of deceased brother or sister. 5. If no issue, spouse,
father, mother, brother, sister, or living issue of deceased brother
or sister, to next of kin, in equal degree, but those who claim through
nearest ancestor preferred to those claiming through ancestor more
remote. 6. If no spouse or kindred, to the State.
D iv o r c e . Grounds are: 1. Adultery. 2. Impotency. 3. Cruel
and inhuman treatment. 4. Sentence to imprisonment in state
prison or reformatory after marriage. 5. Willful desertion for one
year next preceding filing of complaint. 6. Habitual drunkenness
for one year immediately preceding filing of complaint. Complainant
must have resided in this State one year immediately preceding com­
mencement of action except where, the ground is adultery committed
while plaintiff Was a resident of this state.
D o w e r is abolished.
E x e cu tio n s issue from district courts any time within ten years after
judgment and may run to any county where judgment is docketed;
are returnable in sixty days and may be renewed for sixty days at a
time on request of judgment creditor or his attorney. Personal prop­
erty is sold on ten days’ posted notice; real estate on six weeks’ pub­
lished notice, and subject to redemption by judgment debtor or his
assigns within one year from date of sale.

1196

B

BANKING AND COMMERCIAL LAW S—MISSISSIPPI.

supervisors. Acknowledgments in another State may be before any of
E x e m p tio n s. Homestead outside of incorporated municipality
the judges oi the supreme court, or any district judge of the United
may include eighty acres. If in incorporated place containing less
States, or a judge of the supreme or superior court in any State or
than 5,000 inhabitants, its area shall not exceed one-half acre, and in
Territory, any justice of the peace, whose official character shall be
larger incorporated places one-third of an acre without regard to value.
certified to under the seal of some court of record in his county, or
Family pictures, library,' musical instruments for use of family, wear­
by any commissioner residing in such State or Territory, appointed
ing apparel, beds, stoves, cooking utensils used by family, other house­
by the governor of Mississippi, or a notary public or a clerk of a
hold furniture not exceeding $500 in value, three cows, ten swine, one
court of record having a seal of office. Acknowledgments or proof of
yoke of oxen and a horse, or in lieu thereof, a span of borses or mules,
deeds to property in this State by persons in a foreign country may be
twenty sheep, the wool therefrom raw or manufactured, food for
made before any court of record, or the mayor or chief magistrate of any
such stock for one year’s supply, one wagon, cart or dray, one sleigh,
city, borough, or corporation where the grantor or witnesses reside, or
two plows, one drag, and other farming utensils not exceeding $300 in
m aybe; or Defore any commissioner appointed by the governor of this
value, provisions for debtor’ s family for one year’s support, tools kept
State, or before any ambassador, foreign minister, secretary of legation, or
for purpose of carrying on trade; and stock manufactured in whole or in
consul of the United States. The certificate shall show that the party
part b y debtor not exceeding in value $400; library of professional
man ¡presses, type, and tools of publisher of newspaper not exceeding ! or party and witness were identified before the officer, and that the party
acknowledged the execution of the instrument, or that the execution was
$2,000, and his stock in trade not exceeding $400; watch, sewing
machine, typewriter, bicycle, seed for use of debtor for one season not ! duly proved by the witness or witnesses.
exceeding certain amounts; library and apparatus of college or school;
A c tio n s . All distinction as to forms abolished. Service five days
money payable to wife or child from insurance on life of deceased hus­
before return day. All actions triable in the circuit court at first term
band or father not exceeding $10,000; money or relief from benefit
in which the defendant has been personally served with process thirty
association; money from insurance 'on exempt property wages
days before the return day. Mandamus, quo warranto, mechanics’
earned within thirty days not exceeding $25.
liens, attachments, and replevin triable at return term on five days’
H o lid a y s. January 1st; February 12th ' and 22d; Good Friday;
notice.
May 30th; July 4th; first Monday in September; Tuesday after first
Adm inistration o f Estates. Had in chancery court, according
Monday in November, each even-numbered year (election day), and
to will, if any. Claims against deceased must be registered within one
December 25th are legal holidays. Thanksgiving day is so far that
year after the first publication of notice to creditors registration stops
negotiable instruments or contracts due that day are payable next
the general statute of limitations. All debts are to be paid before heirs,
succeeding business day.
distributeres, or legatees. Claims against insolvent estates are paid pro
In te re st. Six per cent is legal rate, but b y special contract any
rata.
rate not exceeding 10 per cent may be exacted. Usurious contracts
are void.
Affidavits o r Oaths before a judge of any court of record, clerk ot
such court, master in chancery, member of the board of supervisors,
Ju d g m e n ts may be entered by default in district courts at expira­
justice of the peace, notary public, mayor, or police justice of a city,
tion of twenty days after service of summons. When docketed in those
town or village; in another State by any officer thereof, or of the
courts they become liens upon all real estate of the debtor in the county
United States, authorized to administer oaths.
where docketed then owned b y him or afterwards acquired, and the
lien continues for ten years after the entry of the judgment. Trans­
A lie n s . No restrictions on the rights of resident aliens to acquire
cripts of judgments in justice and Municipal Cdurts may be filed in
property or dispose of it. Non-resident aliens can not hold land, but may
district court and there docketed, and then become lien on real estate.
take liens thereon to secure debts and purchase at foreclosure thereof,
E ien s. To preserve a mechanic’s lien a verified statement must
and thereafter hold it for not longer than twenty years, with power to
be filed b y the lien claimant within ninety days after furnishing the
sell to a citizen in fee; or he may retain it by becoming a citizen.
last item of labor or material in the office of the register of deeds of
A p p e a ls from justice court to circuit court within five days. From
the county in which the improved premises are situated, or if claimed
circuit and chancery courts to supreme court within two years.
upon a line of railway or its appurtenances with the Secretary of State.'
Appeals
also in certain cases from board of supervisors and municipal
li m i t a t i o n o f A c tio n s . On contracts express or implied six
courts.
years; judgments ten years; to foreclose mortgages fifteen years; to
recover real estate, fifteen years.
A r b it r a t io n . Parties may submit to arbitration of one or more
disinterested arbitrators, with agreement that proper court shall enter
M arried W o m e n . Property acquired by wife before or after mar­
riage remains her separate estate. It is liable for her debts and torts
j udgment.
to the same extent as if she were unmarried, and she may make any
A r re sts made by certain officers, or private persons may arrest for
contract which she could make if unmarried, except that no convey­
offense committed in his presence. No or imprisonment for debt.
ance or contract for sale of her homestead or any interest therein is
•valid unless her husband joins in the same.
Assignm ents and Insolvency. No insolvent law. Debtor, though
Both husband and wife are liable for necessaries furnished to and
insolvent, may prefer creditors, if in good faith and no benefit, direct
used b y the family.
or indirect, is reserved. No provision for the discharge of a debtor on
M o rtg a g e s on real estate executed in the presence of two subscrib­
his making an assignment. In general assignments, where the value
ing witnesses, acknowledged and recorded in the office of the register of
exceeds $1,000, the assignee must give bond and administer the trust
deeds of the county in which the mortgaged premises are situated may
in chancery. Preferences not prohibited.
Practically superseded by
be foreclosed by publication or b y action. The mortgagor or his
bankrupt law.
assigns may redeem within one year from the date of the foreclosure
A ttachm ent. Against a debtor who is a non-resident or who
sale.
removes or is about to remove himself or property out of the State; who
N otes a n d B ills o f E x c h a n g e . Commercial paper is payable at
absconds
or conceals himself; or who incurred the debt in conduct­
the time fixed therein without grace, except sight drafts. When due
ing the business of a ship, steamboat or other water craft in some of
on Sunday, or any legal or bank holiday, the same is payable upon the
I
the
navigable
waters of this State; or who assigns or disposes of his
business day next' succeeding, and may be protested on such succeed­
property, or some part thereof, or is about to assign or dispose of his
ing day.
property with intent to defraud his creditors; or who has property or
R ig h t t o H o ld P ro p e rty . No person unless he be a pitizen of the
rights in action which he conceals and unjustly refuses to apply to the
United States, or has declared his intention to become a citizen, and
payment of his debts; or who has converted or is about to convert his
no corporation unless created under the laws of the United States, or
property into money or evidences of debt, with the intent to place it
of some state thereof, shall acquire lands exceeding 90,000 square feet,
beyond the reach of creditors; or who has fraudulently contracted the
except b y devise, inheritance, or through security for indebtedness.
debt or incurred the obligation for which suit has been or is about to be
This does not apply to actual settlers on farms not exceeding 160 acres,
brought, may be attached. In addition to those named above, the fol­
or to subjects of a foreign country, whose rights to hold lands are
lowing grounds exist: “ 9. That the defendant is buying, selling, or
secured b y treaty.
dealing in, or has within six months next before the suing out of the
No corporation, more than 20 per cent of whose stock is owned by
attachment, directly or indirectly, bought, sold, or dealt in future con­
persons not citizens of the United States, or b y corporations not
tracts, commonly called ‘ futures.’ 10. That he is in default for public
created under its laws, or those of some state thereof, can acquire
money, due from him as a principal, to the State, or some county, city,
lands, and no corporation unless organized for thé construction or
town, or village thereof. 11. That defendant is a banker, banking com­
operation of a railway canal or turnpike can acquire more than 5,000
pany, or corporation, and received deposits of money, knowing at the
acres, but this does not apply to lands acquired in the collection of
time that he or it was insolvent; or has made or published a false or
debts, nor to a person or corporation engaged in selling lands to actual
fraudulent statement as to his or its financial condition.” Attachments
settlers sold within ten years after acquiring title.
for debts not due allowed for last six grounds—or when the creditor
«T a x es on real estate may be paid one-half before the first day of
has just cause to believe that the debtor will remove himself or his
June and one-half before the first day of November of the year following
effects out of State before debt will be due, with intent to defraud. Non­
the levy thereof, and if not so paid a penalty of 10 per cent attaches.
resident creditors have the same rights of attachment as resident credi­
If taxes on personal property are not paid before March 1st of the year
tors, whether the debtor be resident or non-resident. Plaintiff must
following the levy thereof, a penalty of 10 per cent attaches.
furnish bond double the debt and make affidavit as to one or more
grounds.
Suit does not abate on verdict for defendant, on a plea
W ills . Every person of full age and sound mind may dispose of
denying grounds; hut judgment on the debt, to be offset by damages
property by will in writing, signed b y the testator, or b y some person
in favor of defendant for wrongfully suing out attachment. Any
in his presence and by his direction, attested and subscribed in his
creditors may intervene and contest ground of attachment.
presence b y two or more competent witnesses. Every person includes
married women. If, after making a will the testator marries, the will
A tta ch m en t in Chancery on bill against the property, or debts
is thereby revoked.
of an absent, non-resident, or absconding debtor. A lien is acquired by
the suit. If a writ for the seizure of goods is obtained, bond is
required.
B a n k s. Before beginning business each bank or branch bank must
have a paid up cash capital at least as follows: in towns o f '500 inhab­
itants or less, $10,000: in municipalities of 500 inhabitants or more,
$15,000. Additional capital to be paid in five equal monthly installments.
Organizers to make oath that this is complied with. No system of official
SYNOPSIS OF THE LAWS OF MISSISSIPPI
examination, but all, except National banks, are required to make a report,
not less than four times each year, to the auditor. And the auditor shall
RELATING- TO
make requisition on all banks for these reports to be made as of dates
prior to the date of the requisition, and such date to be known only to
BANKING AND COMMERCIAL USAGES.
himself. Such reports shall be verified and shall be published in full in a
newspaper of the town or city where the bank is located. Resources and
Prepared and Revised by L. B r a m e , Attorney at Law, Jackson.
liabilities
shall be stated in such reports. Banks collecting drafts with
(See Card in Attorneys' List.)
bill of lading attached must hold funds at least ninety-six hours. Banks
Accounts. Sworn to entitles plaintiff to judgment, unless defend­
must give notice to administrator or executor of deceased persons of
ant flies affidavit denying. The affidavit must be by the creditor or his
deposits of money and papers held for the deceased. Directors of every
agent.
hank to hold at least three regular meetings each year and keep a com­
plete record of all proceedings. Every bank with paid up capital of as
Acknow ledgm ents before any judge clerk of a court o f record under
his seal, justice of the peace, notary public, or member of the board of I much as $100,000 may do business as trust company; may act as guardian,


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BANKING AND COMMERCIAL LA W S—MISSISSIPPI.
c5ccnt® bonds in legal proceedings and generally
Fofln0dennr?mpn+^fS ° f t
company; may establish a special mutual
loan department, m such department interest on loans not to exceed 8
^m rTinPem tkL7ioan8.nkDOtPermitted t0 all° W the U8e ° f its name ^
C h a tte l M o rtg a g e s a n d D e e d s o f T ru st may be executed ami
recorded as other mortgages. Foreclosure is usually by trustee’s sale. If
S tu friY
remov?i1 a n °tber county, mortgage must be there recorded
within twelve months to affect purchasers without notice. Mortgages on
property to be acquired are valid, but not on a changing stock of goods it
S M ? m Possession and continue business. Reservation
of title by the seller of a chattel to secure purchase money is valid without
record, even against purchasers without notice.
C ollatera ls. General law prevails.
C o n tra cts for sale of land, or for lease for more than one year
j\°obe |
U
fam e m regard to sale of chattels of the value of more
than $50, unless delivery in whole or in part is made. Dealing in
futures is forbidden and a ground for attachment. Gambling contracts
and ordinary contracts made on Sunday void.
i C o n v e y a n ce s . May vest title presently or in future. A.11 estates in
land greater than for one year must be by deed, and to affect purchasers
without notice must be recorded. Estates tail prohibited, except that
a deed or devise may be made to a succession of living donees not exceeding two and to the heirs o f the body of the remainderman, or, in
default thereof, to the right heirs of the ■donor in fee. Corporations
convey under seal. In all other cases private seals abolished
Convey­
ances or devises to two or more, or to husband and wife, create tenancy
m common. Rule in Shelly’ s case abolished. Remainder good without
particular estate. The words “ grant, bargain, and sell” operate as a
covenant that grantor-is seized of some estate of inheritance. Words
j convey and warrant ” operate as a general covenant o f warranty
The
words “ convey and warrant specially” operate as a warranty only against
the grantor or those claiming under him. A quitclaim deed has
practically the same effect. Husband and wife, if living together must
join in conveyance'or incnmbrance of homestead of either, or it will be
void as to all over $2,000.
C orp o ra tio n s.
Corporations except for the construction and
pperation of a railroad other than street railroads, and the carry­
ing on of an insurance business, other than mutual insurance may
be created under the a general chapter.
’
Application for charter signed by each of the incorporators and
acknowledged.
It must tben. be published three consecutive weeks
in a newspaper published at the domicile of the proposed corpora­
tion. The application, with proof of publication, must be forwarded
to the secretary of state together with the fee for recording. The
same to the attorney-general for his opinion as to the constitution­
ality and legality of the proposed corporation, after which it is
referred to the governor for his approval or disapproval. The
governor then returns it to the secretary of state with his action
endorsed thereon.
If he approve it, the secretary of state shall
record it in his office and certify to the same records, and transmits
it to the applicants. It must recorded in the office of the clerk of the
chancery court of the county in which the corporation shall do busi­
ness. Within thirty days after the organization, the corporation must
make report of the organization to the secretary of state. If such
report be not made the charter granted shall be void, and all persons
doing business thereon shall be deemed partners in the business, and
liable as such.
Corporations thus created possess the powers usual and incident
to private corporations generally, but existence is restricted to fifty
years. Corporations created as above named may hold property
necessary for their purposes, not exceeding one million dollars, manu­
facturing companies and banks excepted, which may hold property
to the amount not exceeding two million dollars.
Corporations may, take a lien on property real or personal to a
greater amount than they may hold as a security for a debt, if same
shall be held for a longer period than ten years. Stockholders
individually liable for the debts the corporation contracted during
his ownership of stock for the balance that may remain unpaid
for stock subscribed for and may be sued b y any creditor. Directors
are liable for the wilful mismanagement or for allowing capital
withdrawn while debts exist. Corporations under the laws of other
States or of foreign countries may sue in this State, and have the
same rights in the State as non-resident individuals. The legis­
lature may repeal or amend charters granted after November 1,
1890, provided rights of stockholders are not infringed.
C osts. Non-resident or insolvent plaintiff required to give security.
C o u rts. Terms and Jurisdiction. Justices’ courts meet twice each
month; circuit and chancery courts in each county twice a yearsupreme court twice a year, in October and March. Justices’ courts
have jurisdiction up to $200. Circuit courts have general jurisdiction
of all common law actions where the amount or value exceeds $200, and
jurisdiction of appeals from justices’ and mayors’ courts, and boards of
supervisors. Chancery courts have jurisdiction o f the administration of
estates of deceased persons, of minors’ business and other probate
matters, and of all matters in equity. Appeals may be taken to the
supreme court from any final judgment of the circuit court, and from
the chancery court, except in suits for not more than $50 originating
in the justice’s court.
Suits of equitable cognizance improperly
brought in the circuit court are transferred to chancery court, and vice versa.
No suit dismissed because being of an equitable nature it is improperly
brought in the circuit court and e converso.
C r e d ito rs ’ B ills may be filed under general to subject equitable assets
and in aid of execution at law. Such bills may, under the statute, be
filed to subject property o f a debtor fraudulently conveyed, without a
judgment and return of nulla bona; and this whether complainant’s debt
is due or not. No bond is required unless a sequestration is desired.
C u rte sy an d D o w e r . Both abolished since 1880.
D a y s o f G r a c e . Inland and foreign bills of exchange and promis­
sory notes for a sum certain payable only in money are entitled to three
days of grace; other contracts are not. (See also Notes and Bills.)
D e e d s . (See Conveyances.)
D e p o s itio n s in civil cases, on written or verbal interrogatories- ten
days’ notice to opposite party. I f such party is absent and has no
attorney, filing interrogatories ten days sufficient. The officer shall swear
the witness to testify the truth, and shall impartially examine him on the
interrogatories. The testimony shall be fairly written down by the officer
or witness, or by a disinterested person in the presence of, and shall be
subscribed by the witness. Depositions then certified, and transmitted
by mail or other safe and convenient manner to the court where the
same are to be used. Officer’s certificate prima facie evidence of his
character.


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1197

Descent and Distribution. Estates of inheritance, real1 and per­
sonal descend: 1. To children and their descendants per stirpes. 2. To
brothers and sisters in equal parts and their descendants by representa­
tion. d. I o the father and mother, or the survivor of them. 4 To the
next of lan according to the civil law. Except among brothers and sisters
there is no representation among collaterals. Advancements must be
brought into hotchpot. No distinction between children of the wholeblood and those of the half blood, except that children of the whole
blood are preferred to those of the half blood in equal degree. Where
there is no one to inherit property escheats. Illegitimates inherit from,
the mother and her kindred. Exempt property o f husband or wife
descends to survivor and children as tenants in common.
Divorces may be granted for: 1. Naturalimpotency. 2. Adultery, in
the absence of collusion. 3. Sentence to the penitentiary unless pardoned
before being sent.4. Willful, continued and obstinate desertion for the space
of two years 5. Habitual drunkenness. 6. Habitual and excessive use of
opium, morphine or other like drug. 7. Habitual cruel or inhuman treatM M or idiocy at the time of the marriage if party complainmg did not know of it. 9. Marriage to some other person at the time of
the pretended marriage. 10. Pregnancy by another man at the time of the
marriage lfthe husband did not know of it. 11. Either party may obtain
divorce if they be related within the prohibited degree of kinship.
Dower and Curtesy have been abolished since 1880.
Evidence. In the main common law rules apply. Parties and
interested persons competent; except against decedent. Affidavit to
open account entitles to judgment, unless defendant denies under oath
Warehouse receipts andbiils of lading conclusive evidence in favor of a
bona fide holder that the property was received by the issuer. (See also
Accounts and Affidavits.)
Executions in circuit court issue within twenty days after the
adjournment of court unless otherwise ordered by the plaintiff, and in
justices courts after the lapse of five days from judgment rendered
unless recovering party makes affidavit that he is in danger, by delav of
losing his debt or demand, in which case execution issues forthwith No
redemption of property sold under execution or mortgage.
E x e m p tio n s. The following persona property is exempt from
seizure under execution or attachment, to-wit:
*
The tools of a mechanic necessary for carrying on his trade
laboreragricu tural implements of a farmer necessary for two male
The implements of a laborer necessary in his usual employment
ih e books of a student required for the completion of his education
Ihe wearing apparel of every person.
. The libraries of all persons, including pictures, drawings, and paint­
ings, not exceeding five hundred dollars in value; also the instruments
of surgeons and dentists, used m their profession, not exceeding two
hundred and fifty dollars in vulue.
state6 armS and accoutrements of each Person of the militia' of the
coUegef°beS and maps used

the teachers of schools, academies and

Tb? following property of each head of a family, to be selected bv
the debtor, is exempt :
y
Two work-horses or mules, and one yoke of oxen.
Two head of cows and calves.
Ten head of hogs.
Twenty head of sheep and goats each.
All poultry.
All colts under three years old raised in this state by the debtor
Two hundred and fifty bushels of corn.
Ten bushels of wheat or rice.
Five hundred pounds of pork, bacon or other meat.
One hundred bushels of cotton-seed.
One wagon, and one buggy or cart, and one set of harness for each
hive hundred bmidles of fodder and one thousand pounds of hay ’
horty gallons of sorghum or molasses or can syrup.
One thousand stalks of sugar cane.
- , P ne, molasses mill and equipments, not exceeding one hundred and
fifty dollars m value.
Two bridles and one saddle, and one side saddle.
One sewing machine.
Household and kitchen furniture not exceeding in value two hun­
dred dollars.
All family portraits.
One mower and rake for cutting and gathering hay or grain.
And. the following property shall be exempt from garnishment or
otfier legal process, to-wit:
The wages of every laborer or person working for wages, being the
head of a family, to the amount of fifty dollars per month; but this
paragraph shall not apply to a debt for board and lodging or a judg­
ment founded On a debt for board and lodging.
The proceeds of insurance on property, real and personal, exempt
Irom execution or attachment, and the proceeds of the sale of such
property.
Payable to Executor.
Life insurance policy not exceeding three
thousand dollars, payable to the executor, or administrator, shall
mure to the heirs or legatees, freed from all liability for the debts of
the decedent, except premuims paid on the policy by anyone other
than the insured and debts due for expenses of last illness and for
burial ; but if the life of the deceased be insured for the benefit of his
heirs or legatees at the time of his death otherwise; and they shall
collect the same, the sum collected shall be deducted from the three
thousand dollars, and the excess of the latter only shall be exempt.
Homestead in Country.
Every citizen being a householder, and
having a family, shall be I entitled to hold exempt the land and
buildings owned and occupied as a residence, but the quantity shall '
not exceed one hundred and sixty acres, nor the value thereof inclu­
sive of improvements, save as hereinafter provided, the sum of three
thousand dollars.
Homestead in Cities. Every citizen being a householder, and
§ a family residing in any city, town, or village, shall be entitled
to hold, the land and buildings owned and occupied as a residence by
such person, not to exceed in value, save as hereinafter provided
three thousand dollars, and personal property, to be selected by
him, not to exceed in value two hundred and fifty dollars or the
articles specified as exempt to the head of a family.
Homestead exemption may be increased to $3,000 in value b y
by fifing for record m chancery clerk’s office a declaration claiming as
exempt certain property.
No property is exempt as against purchase money or for labor per­
formed on it or material furnished therefor.
Foreign Corporations may do business and sue and be sued as in
case or domestic corporations. (See Corporations.)

BANK ING AND COMMERCIAL L A W S — MISSOURI:

1198

Fraud and Fraudulent Conveyances. {See Attachment, Bills o f
Lading, Limitations, Creditor's Bill.)
Garnishm ent on judgments or in attachment. Binds debts or
property of debtor in garnishee’ s hands.
Grace.

{See Bays o f Grace, and Notes and Bills.)

H o lid a y s are Jan. 1, Feb. 22, April 26, June 3, July 4, first Monday
in September, fourth Thursday in November, and December 25.
H o m e s t e a d owned and occupied by husband living with wife cannot
be sold or encumbered unless the wife joins in the conveyance. The same
is true as to husband if wife owns homestead. {See Exemptions.)
H u sb a n d a n d W ife . The disabilities of coverture are abolished, as
are dower and curtesy. Husband and wife may contract with and sue
each other, but contracts for compensation for services rendered to each
other are void. If husband rents wife’s land, mules, etc., and does busi­
ness in his own name, it will be deemed the business o f the wife as to
those without notice, unless the contract be recorded. Transfers between
are void as to third persons unless recorded. {See also Married Women,
Wills, and H om estead.)
I n s o lv e n c y . No general insolvent laws, but insolvent estates of
decedents are divided among creditors pro rata.
In case of insolvency partnership property isapplied first to partner­
ship debts, and e converso.
I n t e r e s t. Legal rate 6 per cent per annum, but parties may con­
tract in writing for 10 per cent; when more is stipulated or collected,
all interest is forfeited.
Judgments enrolled become liens on defendant’ s property within
the county. A junior judgment creditor may obtain priority as to
property levied on by him, if, after ten days’ notice, the senior judgment
creditors fail to issue executions and point out the property. Lien of
judgment continues seven years.
Jurisdiction. {See Courts.)
L ien s. Lien of an enrolled judgment, of mechanics and material
men, of landlord and laborer on agricultural products, innkeeper’s and
stablekeeper’s lien. The seller of goods may enforce a lien for the price
of the same, provided the goods are still in the hands of the pur­
chaser or one having notice. The procedure is by affidavit, filed at the
commencement suit, stating that the purchase money is unpaid. A
writ of seizure issues, and the goods are taken. Title to personal
property may be reserved by the seller as security for the price, and
this is good even as against a subsequent bona fide purchaser, without
any writing or record.
L im itations. Open accounts, accounts stated and. verbal contracts,
express or implied, three years; all other contracts, six years;
awards o f arbitrators, six years; judgments and decrees rendered
in another State against resident of this, three years; rendered in
this, seven years: real actions, ten years. Actions to recover property
sold under order o f chancery court must be brought within two years,
where possession is taken and purchase money paid in good faith.
When the legal title to property or right in action is in an executor,
guardian, or other trustee, beneficiary, though under disability, is barred
when trustee is barred. Statute does not apply to suits on notes or evi­
dences o f debt of banks or other moneyed corporations. An acknowl­
edgment or new promise must be in writing. Statute does not run
during fraudulent concealment, nor against infant or person non compos
mentis, nor against a convict in actions for assault, etc., until after
release, nor against State, county, municipality, or any political subdi­
vision of State.
Married W om en retain their estate, common law disabilities of
coverture abrogated; have capacity to make contracts and do all
acts in reference to property. Dower and curtesy abolished. Hus­
band and wife must join in conveying or encumbering homestead.
{See also Husband and Wife and Descent.)
M o rtg a g e s a n d T ru st D e e d s do not take effect as to creditors or
purchasers in good faith and without notice until they are delivered to
the clerk for record; with power of sale are foreclosed by sale in pais;
without power of sale, by suit in chancery court, and after foreclosure
there is no redemption. {See Chatted Mortgages.)
Notaries. Have power to administer oaths, take acknowledgments
and to protest notes and bills. {See Conveyances, and Notes and Bills.)
N o te s an d B ills must be protested and notice given substantially
as at common law, to bind parties entitled to notice. Promissory
notes, unless indorsed, are not required to be protested; demand and
notice are necessary to fix liability of parties secondarily liable. There
is no law defining commercial paper. All notes, bills, drafts, etc., are
assignable, and suit may be maintained in the name of the assignee;
defendant can make all defenses which he had against payee before
notice of assignment; but this does not apply to paper payable to
bearer, or payable in another State or country where a different rule
obtains. Foreign bills protested for non-acceptance or non-payment,
draw 10 per cent damages; bills drawn payable in the United States,
protested for non-acceptance, draw damages 5 per cent. Checks, drafts
and notes payable on demand, are not entitled to any days of grace ;
while notes,, bills and drafts, are entitled to three days of grace.
Where a bank check is expressly made payable on a future day, or
where by the way it is drawn, it takes the character of a draft or
bill o f’ exchange, it is entitled to days ofgrace. Domestic bills drawn
on and payable in this State for $20 or upward must be protested for
non-acceptance, or, if accepted for non-payment; they are governed by
the same customs and usages as foreign bills of exchange, but no
damage accrues. When the day on which any bill or note would be
by its terms presentable for acceptance or payment, according to its
terms shall fall on Sunday, or legal Holiday shall be presented on the day
before.
Partnership. Few statutorv provisions. Governed by general lawIn case of insolvency, partnership property must go to pay firm debts,
and e converso. Provision made for limited or special partnerships.
Powers o f Attorney. May be acknowledged or proved and re­
corded as deeds. May be revoked in like manner. Conveyances of land
or other property under powers of attorney are valid.
R edem ption. No redemption from sales under mortgage, execu­
tion or other judicial sale. Two years allowed for redemption of land
sold’ for taxes, saving to minors and persons non compos mentis a like
period after removal o f disability.
R eplevin lies to recover personal property wrongfully withheld
from the owner. The property may be restored to defendant on bond.
If he declines to bond, plaintiff may do so. If neither does, a claimant of
the property may give the bond and receive possession. Damages may be
assessed for wrongful taking or detention.


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T a k es. Personal property is assessed once a year; real estate every
four years, and taxes constitute a prior lien. Land delinquent sold
on first Monday of April. Redemption within two years, on payment
of all taxes, costs, 25 per cent damages, and 5 per cent on amount paid.
Infants and persons of unsound mind may redeem within two years
after removal of disability, on paying the value of permanent improve­
ments put on the land after two years from date of sale.
T ru st C o m p a n ie s .
Provision for such companies with general
powers—to administer all trusts, make bonds and the like. {Seb Banks.)
W arehouse Receipts. {See Bills o f Lading.)
W ills executed by anyone twenty-one years old, of sound mind.
As to land, if not wholly written and subscribed by testator, must be
attested by two subscribing witnesses. A nuncupative will (of per­
sonalty) may be made during last sickness of testator at habitation, or
where testator has resided ten days next before death, or where person
is taken sick from home and dies before return; must be proved by two
witnesses. Soldiers and sailors in actual service may bequeath per­
sonalty free from statutory restrictions. No restriction upon the power
to dispose of property by will except that religious or charitable trusts
or bequests void. Provisions made for renouncing will by surviving
husband or wife in certain cases. Probated in common form may be
contested within two years.

SYNOPSIS OF THE LAWS OF MISSOURI
RELATINO TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y Messrs. G a g e , L a d d & S m a l l , Attorneys at
Law, Kansas City. {See Card in Attorneys' List.)
A c k n o w le d g m e n ts . Acknowledgments of instruments affecting
real estate may be before one of the following courts or officers. 1.
Within this State, some court having a seal, or some judge, justice or
clerk thereof, a notary public, or some justice of the peaee_ of the
county in which the real estate is situated. 2. Outside of this State
and within the United States, any notary public, any court haying a
seal or the clerk of such court, or commissioner of deeds.' 3. Without
the United States, any court having a seal, the mayor or chief officer
of any city or town having an official seal, any minister, consul or
officer of the United States, or notary public having a seal. The
official should certify that “ before me personally appeared.
an d.................... his wife, to me known to be the persons described in,
and who executed the foregoing instrument and acknowledged that
they executed the same as their free act and deed.”
A c tio n s . There is in this State but one form of civil action the
practice being under a code. A non-resident plaintiff must file the
written undertaking of some resident for costs.
A d m in is tra tio n o f E sta tes. The Probate Court in each county
has jurisdiction of the settlement of the estates of deceased persons.
Claims presented to the court for allowance within one year after the
grant of letters are preferred over those presented later. Claims not
presented within two years from the granting of letters are barred.
Letters are granted: 1. To the husband or wife. 2. To those
entitled to distribution, or one or more of them. If after the expira­
tion of thirty days after death of deceased, such persons do not, on five
days’ notice, appear and qualify, letters may be granted to any other
person. Non-residents cannot be executors or administrators, npr
may non-resident executors or administrators maintain an action in
this State.
A lien s. Aliens or alien corporations may not acquire, hold or own
real estate except such as may be acquired by inheritance or in the
ordinary course of justice in the collection of debts. Real estate
acquired b y an alien creditor at foreclosure sale must be disposed of
within five years.
A rb itra tio n . Parties to a controversy may submit the same to
arbitrators, and their award be confirmed b y a court and judgment
rendered thereon.
A rrest. No person can be arrested under civil process.
A ssig n m en ts. Voluntary assignments must be for the equal benefit
of all the creditors of the assignor and are administered in the Circuit
Court. No such assignment operates as a discharge of the assignor
from his debts.
A tta c h m e n ts. The writ may issue when the debtor is a non-resi­
dent; or conceals himself so that the ordinary process of law cannot be
served; or, has absconded or absented himself from his usual place of
abode in this State, so that process cannot be served; or, is about to
remove his property out of the State with intent to defraud, hinder, or
delay his creditors; or, is about to remove out of the State and change
his domicile; or, has fraudulently conveyed, concealed, or removed his
property, or is about to do so, to hinder or delay his creditors; or, has
failed to pay the price of any article which he was bound to pay for
upon its delivery, or has fraudulently contracted the debt; or, where
the cause of action accrued out of this State and the defendant has
absconded or secretly removed his property into this State; or, where
the damages sued for arise from the commission of a felony or mis­
demeanor or the seduction of a female; or, the defendant is a corpora­
tion whose chief office or place of business is out of this State, The
plaintiff, his agent, or attorney must make affidavit to one or more of
these grounds, and the plaintiff, except where the defendant is a non­
resident, must give bond for double the amount of the debt.
B a n k s are organized under a general law. The cash capital must not
be less than $10,000 nor more than $5,000,000, and in cities of 150,000
or more, not less than $100,000. The entire capital must be sub­
scribed, one-half thereof paid up on organization, and the other half
within one year. Directors must be residents of this State. The
receipt of deposits with knowledge of the fact that the bank is in failing
circumstances, is punishable b y fine or imprisonment, and officers and
agents consenting to the creation of debts with such knowledge, are
individually responsible therefor. Not more than 25 per cent of its
capital stock must be loaned to any individual or corporation. Large
powers of supervision and control are vested in the Secretary of State.
Private bankers must have a paid-up capital of not less than $5,000.
A revised act approved March 18, 1907, making many changes will
take effect January 15, 1909.

BANKING AND COMMERCIAL LA W S—MISSOURI.
C o n d itio n a l Sales of personal property, unless recorded, are void
as to subsequent purchasers in good faith and creditors.
C o n v e y a n ce s. A person may convey title to lands although not
in possession, and although the same be in adverse possession. An
interest in real estate granted or devised to two or more persons other
than executors and trustees and husband and wife, is a tenancy in
common unless expressly declared to be a joint tenancy. A convey­
ance to husband and wife creates an estate by entirety, as at common
\ law. The words grant, bargain, and sell'' covenant that the grantor
was seized of a fee simple indefeasible estate; that it was free from any
incumbrances done or suffered by him or any person under whom he
claims; and for further assurances of the title to be made by him and
his heirs. Females of eighteen are considered of full age.
C orp ora tion s are formed under general law. In the case of manu­
facturing and most other business corporations, the capital must be
not less than $2,000 nor more than $50,000,000. The whole must be
subscribed and one-half thereof actually paid up. Part of the stock
may be preferred, paying not to exceed 8 per cent annual dividends.
Cumulative voting is permitted. Directors must not be less than
three nor more than thirteen; three of them must be citizens and resi­
dents of the State. A stockholder having paid for his'stock in full is
•subject to no further liability;. The capital may be increased or
diminished by a vote of the stockholders. Bonded indebtedness can­
not exceed the authorized capital stock and cannot be increased
without the consent of a majority of the stockholders. The holders
-of two-thirds in value of the stock may apply to the Circuit Court for a
decree for the winding up of the business.
A Foreign Corporation must file in the office of the Secretary of State
a copy of its charter with a statement of the proportion of its capital
stock invested in Missouri, and pay certain fees. It then receives a
license to do business in the State. It must also maintain an office
in the State. Its personal property in this State may not be incum­
bered to the injury of any creditor who is a citizen of" this State, and
no mortgage by a foreign corporation except a railroad or telegraph
company, to secure a debt created in another State is effective as
■against any citizen of this State until its debts, due to resident citizens
a t the time of recording the mortgage, have been paid. A corporation
failing to comply with these provisions is subject to a fine and. cannot
maintain a suit in a court of this State. A corporation of any country
outside of the United States before being authorized to transact busi­
ness in this State must have a public office in the State, where books
shall be kept, showing in detail its assets and liabilities, the names
an d residences of its shareholders, officers, directors, and managers.
None of these requirements apply to insurance companies.
C ou rts. Circuit Courts have original jurisdiction in all cases of law
and_ equity and hold two or more terms in each year in each county.
Jurisdiction of the settlement of estates of deceased persons is vested
in a Probate Court in each county. Justices of the peace have juris­
diction limited to $250; in counties and cities of over 50,000 the juris­
diction is 300. Appeals lie from judgments of justices and the Probate
Court to the Circuit Court.
D a y s o f G ra ce are abolished. (»See Negotiable Instruments.)
D e sp o sitio n s. May be taken on notice of at least three days and one
<iay additional for every fifty miles of the first 300 and beyond that one
additional day for each 100 miles from the place of serving the notice.
If taken outside of the State a commission issues from the court in
which the suit is pending. They may be taken within the State by any
judge, justice of the peace, notary public, clerk of a court, mayor or
chief officer of a city or town having a seal of office; and if out of the
State by any officer appointed by authority of the laws of this State to
take depositions, a consul or commercial representative of the United
■States having a seal, or mayor of any city or town having a seal, or any
judge, justice of the peace, or other judicial officer, or a notary public.
T hey may be taken upon written interrogatories, but this is not cus­
tomary. The names of the witnesses or of the officer need not be men­
tioned in the notice. Objections to the competency or relevancy of
the testimony need not be noted, but can be first made when it is
■offered at the trial.
D e sce n t an d D istrib u tio n o f P ro p e rty . The real and personal
estate of an intestate descends and is distributed as follows: 1. To
his children or their descendents in equal parts. 2. If there be no
children or their descendants, then to his father, mother, brothers, and
•sisters, and their descendants in equal parts. 3. If there be no chil­
dren or their descendants, father, mother, brother or sister, nor their
descendants, then to the husband or wife; if there be no husband or
Wife, then to the grandfather, grandmother, uncles and aunts, an d ’
their descendants in equal parts. 4. If there be no children or their
descendants, father, mother, brother, sister, or their descendants,
husband or wife, grandfather, grandmother, uncles, aunts, or their
descendants, then to the great-grandfathers, great-grandmothers, and
their descendants, in equal parts, and so on, in other cases without end
passing to the nearest lineal ancestors and their children, and their
descendants in equal parts. Posthumous children inherit. When
there are collaterals of the half blood, they inherit half as much as those
of the whole blood.
Lineal descendants in equal degree take per
capita; but where part of them are dead and part living, the issue of
those dead take per stirpes. When a wife shall die without any child
or other descendants in being, capable of inheriting, her widower shall
be entitled to one-half the real and personal estate belonging to the
wife at the time of her death, absolutely, subject to the payment of the
wife’s debts, and the widow takes a like share of the estate of her hus­
band on his death without lineal descendants. An illegitimate child
inherits from its mother, and vice versa. An illegitimate child becomes
legitimate if the parents intermarry.
D iv o r c e . Divorces may be granted for impotency; if former wife
or husband living at the time of the marriage; adultery; absence
without cause for one year; conviction of felony or infamous crime;
habitual drunkenness for one year; cruel and barbarous treatment,
endangering life; indignities rendering condition intolerable; vagrancy;
prior to the marriage conviction of felony or infamous crime without
knowledge of the other party; pregnancy of intended wife at time of
contract or marriage. The action must be in the county of residence
of plaintiff, who must have resided in the State one year prefceding the
filing of the petition unless the offense was committed in this State, or
while one or both of the parties resided in this State. The guilty party
orfeits all rights and claims b y virtue of the marriage.
D o w e r . Dower in real e'state is as at common law, but the widow
has the right, at her election, to choose certain portions of her hus­
band’s estate absolutely, in lieu of dower. A widow may renounce
provisions in a will in lieu of dower and elect to take absolutely certain
portions of the estate. No conveyance b y the husband or sale under
fudgment or decree will bar dower. The estate by the curtesy exists
as at common law.


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1199

E x ecu tion s. Unless motion for new trial is filed within four days
•gment’ execution issues immediately. Real estate must be
sold during a session of the court which rendered the judgment. Sales
ol real estate must be advertised for twenty days; of personal property
for ten days. Execution sales are for cash. No execution is a lien
upon personal property until actual seizure thereof. It may issue at
any time within ten years from the rendition of the judgment. Deeds
to tne purchaser are made at once by the sheriff, no confirmation of
sale being required.
e x e m p t io n s . The homestead of the head of a family is exempt,
in tne country to the extent of 160 acres not exceeding in value $1,500 •
m cities of 40,000, eighteen square rods, not exceeding in value $3,000 •
m cities of 10,000, thirty square rods, not exceeding in value 1,500- in
towns of less than 10,000, ten acres, not exceeding in value $1 500
in e exemption continues to the widow and to the children until their
majority. There are also exempt, when owned by the head of a family
ten nogs, ten sheep, two cows, and certain farm implements; two work
animals; spinning wheel, loom, and small quantity of hemp, flax and
wool; wearing apparel; $100 in household and kitchen furnituremechanic s tools; provisions on hand for family use; Bibles and other
booics used in the family. Lawyers, physicians, ministers, and teachers
nave the right to select professional books in lieu of other property
allowed to them and doctors may select medicines. In lieu of certain
of the exempted articles any other property, not exceeding $300 in
value, may be selected.
■ *
F raud s an d P erju ries. No executor or administrator is bound by
his promise to pay any debt or damages out of his own estate, and no
person is liable upon any agreement to answer for the debt, default or
miscarriage of another, or made in consideration of marriage, or for the
sale of lands or any interest in or lease thereof for a longer time than
one year, or on any agreement that is not to be performed within one
year unless the agreement sued on, or a memorandum thereof is in
writing signed by the party to be charged or his authorized agent; and
no contract for the sale of lands by an agent is valid unless the author­
ity of the agent is m writing. Every gift, conveyance, or assignment of
or charge upon real or personal property made with intent to hinder
delay, or defraud creditors or defraud or deceive persons who shall pur­
chase the same lands, is void against creditors.and purchasers, prior
and subsequent. All creations of trust in lands must be in writing
except those resulting by implication of law.
G arn ish m en t. Garnishees may be summoned under writs of
attachment or execution. A garnishee may discharge himself by
delivering up the property or paying the debt to the officer under order
of court. Credits or property attached in the hands of a garnishee
may be claimed by a third person, who may assert his title by inter­
pleader. Not more than 10 per cent of the wages due for the last
thirty days’ service of the head of a family and resident of this State
can be garnished. Public corporations and their officers are exempt
from garnishment, as are also administrators and executors prior to an
order of distribution.
H u sb a n d and W if e .

{See Married Women.)

In terest. Legal rate 6 per cent, but b y agreement in writing any
rate not exceeding 8 per cent. The legal rate is collectible on moneys
after they become due; on written contracts or accounts, after due
and demand made; on money recovered for the use of another and
retained without the owner’s knowledge. If usurious interest has been
paid that part in excess of the legal rate is deemed payment ajad
credited on the debt, the holder of which recovers the debt only with
legal interest after deducting such payments, and costs are adjudged
against him. The receipt or exaction of usurious interest upon a debt
secured by lien upon personal property renders the lien invalid. Part­
ies may contract that interest may be compounded, but not oftener
than once in a year.
Ju d g m en ts. Judgments and decrees rendered b y a court of record
are liens on the real estate of the person against whom they are rend­
ered situate in the county for which the court is,held. Transcript of
a judgment filed in the office of the clerk of the Circuit Court of any
other county becomes a lien upon real estate in such county. The lien
of a judgment continues for three years, and may be revived at any
time within ten years from its rendition. Execution may issue at any
time within ten years from the rendition of a judgment. When two or
more judgments are rendered at the same term as between parties
entitled to the judgments, the liens commence on the last day of the
term at which they are rendered. Judgments bear interest at 6 per
cent, but if upon contracts bearing more than 6 per cent, the judgment
bears the rate of the contract.
L ien s. Statutory provisions exist for mechanics’ liens, liens for
keeping horses and other animals, liens of inn and boarding-house
keepers, liens of contractors, material-men, and laborers against
railroads.
L im ita tion s. Actions must be commenced within ten years:
1. Upon any writing for the payment of money or property,"
2. On any covenants of warranty or seizin contained in any deed.
3. For recovery of lands. 4. For. relief not otherwise provided for.
Within five years: 1. Upon contracts, express or implied, except
judgments or decrees of court. 2. Up.on a statutory liability other
than a penalty or forfeiture. 3. Trespass. 4. Replevin, and for
any other injury to the person or rights of another not arising on con­
tract and not otherwise enumerated. 5. For relief on the ground of
fraud. Within three years: 1. Against public officers for acts of
official commission or omission. 2. For a penalty or forfeiture “where
the action is given to a party or a party and the State. Within two
years: Actions for libel, slander, assault, battery, false imprisonment,
or criminal conversation. Statute does not begin to run against a
resident of this State who is absent at the time it accrues, until his
return; if he depart after it accrues, the period of his absence is not
counted. Acknowledgments or promises, to take a case from the
operation of the statute, must be in writing. Judgments are pre­
sumed to be paid after ten years. A cause of action barred by the
laws of the Stats in which fit originated is barred in this State.
L im ited P a rtn ersh ip . May consist of one or more general and one
or more special partners. _Special partners contributing a specified
amount in cash to the capital are not personally liable for the debts
of the partnership or power to manage its affairs. A verified state­
ment of the terms of the partnership must be filed with the recorder
of the county.
M arried W o m e n . A married woman is deemed a femme sole so far
as to enable her to carry on or transact business on her own account, to
contract and be contracted with, to sue and belsued, to enforce or have
enforced against her property such judgments:a.s may be rendered for

BANKING AND COMMERCIAL LAW S — MONTANA.

1200

or against her, and may sue or be sued at law or in equity, with or
without her husband being -joined as a party. Her real estate and
personal property cannot be taken by any process of law for the debts
of her husband. Neither the rents, issues, or products of her real
estate, nor the interest of her husband in her right in any real estate,
can be levied on for his debts.
M o rtg a g e s. Mortgages on real estate are executed like deeds.
Husband and wife must join to bar dower or homestead, except to
secure purchase money. The common form of real estate security is
a deed of trust with power of sale in the trustee upon default in the
payment of the debt. Sale is at public auction, upon twenty or more
days’ public notice, as may be provided in the instrument. The
trustee executes deed to the purchaser. There is no redemption from
sale unless the holder of the debt is the purchaser, in which case the
debtor may redeem in one year if, at the sale, he give security for the
payment of interest to accrue. Evidences of debt secured b y mort­
gage or deed of trust must be produced to the recorder when satis­
faction is entered. No foreign corporation or individual may act as
trustee in any deed of trust unless there be named as co-trustee a
Missouri corporation or individual citizen of this State, and the resident
trustee must be a party plaintiff in an action to foreclose.
*
Chattel Mortgages are invalid except as between the parties unless
possession of the property be taken and retained b y the mortgagee
or the mortgage be acknowledged and recorded in the county of the
mortgagor in. the same manner as conveyances of real estate, or unless
the mortgage or a copy thereof be filed in the office of the recorder of
the county of the mortgagor, or, where he is a non-resident of the
State, then in the office of the recorder of the county in which the
property is situated. Every such mortgage ceases to be valid after
the expiration of five years from the filing of the same.
N eg o tia b le In stru m e n ts. The General Assembly of this
State has codified the law of negotiable instruments b y the passage^ of
“ An act relating to the negotiable instruments, to revise and codify
the law concerning the same, and to establish a law uniform with that
of other states on the subject.” The act is the same as that adopted
b y many other states in accordance with the recommendation of the
American Bar Association. It became effective in Missouri June 16,
1905.
P o w e r o f A tto r n e y .
An instrument of writing containing
a power to do any act or business, including the conveyance of real
estate, as agent or attorney for another, when acknowledged in the
same form as required for deeds, may be read in evidence without fur­
ther proof of its execution.
P ro b a te L a w . (See Administration of Estates.)
P ro te st. (See Negotiable Instruments.)
R e p le v in . Goods or chattels wrongfully taken or retained may be
replevied b y the owner or party entitled to possession. Affidavit
must be filed and bond in double the value of the property given. In
certain cases defendant may retain possession of the property b y giving
a bond in double its value. If plaintiff fail in his suit, defendant
recovers judgment against plaintiff and the sureties on the bond for
the value of the property and damages.
T a x e s. State and county taxes are usually paid in November
or December. If not paid, they are regarded as delinquent from the
first day of the succeeding January. State and county taxes for each
year are a lien upon the real estate from the first day of June of the
preceding year. Delinquent state and county taxes are collected by
suit. Municipal taxes are payable according to the provisions of the
charters or general laws b y which they may be governed. In some
cases the payment of delinquent city taxes may be enforced b y a sale
of the property without suit; in others, suit must be brought before
sale can be made. There is no redemption from a sale under a judg­
ment for state and county taxes. Redemption is usually allowed in
a sale for city taxes under the provisions of the particular charter.
W a g e s . (/See Garnishments; Exemptions.)
W ills . Every male person twenty-one years of age may, b y his last
will, devise all of his estate, real, personal, and mixed, and every male
over the age of eighteen years may bequeath his personal estate.
Women of eighteen years of age and upward, married or unmarried,
m ay devise their real estate and bequeath their personal property. A
will must be in writing, signed b y the testator or some person by his
direction in his presence, and must be attested b y two or more com­
petent witnesses subscribing their names to the will in the presence of
the testator. If after making the will the testator shall marry and die
leaving issue of the marriage living at the time of his death, or born to
him after his death, the will shall be deemed revoked. The will of an
unmarried woman is revoked b y her subsequent marriage. If a child
or children, or the descendants of such child or children, in case of
their death, are not named or provided for in the will, the testator is
deemed to have died intestate as to such child or children or their
descendants. Wills must be presented for probate to the Probate
Court of the county in which was the place of abode of the testator.
Wills may be contested within two years after the probate thereof by
petition to the Circuit Court of the county. Real estate in this State
m ay be devised by last will executed and proved according to the laws
of this State. Personal estate may be bequeathed according to the
laws of the state or country in which the will shall be made.

SYNOPSIS OP THE LAWS OP MONTANA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised b y W ig h t & P e w , Attorneys at Law,
Helena.
A c k n o w le d g m e n ts of instruments may be taken in this State.
1 Before supreme court justice, district judge, justice of the pleace,
clerk of any court of record, county clerk or notary public. 2. Out­
side Montana in the United States: Before the justice, judge or clerk
of any court of record of the United States or any State or territory;
a commissioner appointed b y the governor for that purpose, a notary
public, or any other officer authorized Jo take acknowledgments.
3. Outside United States before minister, commissioner or charge
d’affaires, consul, vice-consul or consular agent of the United States


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Federal Reserve Bank of St. Louis

a judge of court of record, commissioner appointed b y governor or
notary public. In all cases acknowledgment must be taken within
jurisdiction'of officer talking.
*•
Must be in substantially following form : “ State of-----------------,
county o f -------r?— s. s. On this----------day of — - — 190— , before
(name and quality of officer) personally appeared----------------- known
to me (or proved on oath of—-------) to be the *person whose name is
subscribed to the within instrument, and acknowledged to me that he
(or they) executed the same.” Same for married women. In case of
corporation same to star, then “ president (or secretary) of the cor­
poration that executed the within instrument and acknowledged to­
me that such corporation executed the same,” and in case of attorney
in fact, “ whose name is subscribed to the within instrument as attorney
in fact of-----------------, and acknowledged to me that he subscribed
the name of---------------- thereto as principal, and his own name as
attorney-in-fact.” Outside of county must be accompanied by
certificate of county clerk.
A d m in istra tion o f E states is had in district courts. Notice
to creditors published four Weeks. Claims not presented in four
months after first notice, if estate $10,000 or less, or ten months if
over $10,000, are barred.
Letters of administration granted to : 1. Surviving husband or
wife or competent _ appointee. 2. Child. 3. Father or mother.
4. Brother. 5. Sister. 6. Grandchild. 7. Next of kin whoinherits. 8. Public administrator. 9. Creditor. 10. A ny person
legally competent. When several claim right and equally entitled,
court appoints, preferring males to females and whole blood to half
blood.
A ffidavits may be taken or oaths administered before any judicial
officer, clerk of any court, county clerk or notary public in this State;
in any other State before a commissioner appointed b y the governor,
nortay public, or judge or clerk of any court of record having a seal;
in a foreign country before an ambassador, minister, consul, viceconsul, or consular agent of the United States, or judge of a court of
record having a seal.
When taken before a judge in any other State or foreign country,
the existence of the court, signature and official character of the judge
must be certified by the clerk of such court, under its seal.
A lien s an d D en izen s have same right as citizens to acquire, use
and dispose of mining property and real estate in connection there­
with.
A rb itra tion . Any controversy except over title to real property
may be submitted to arbitration by a written agreement to that effect
filed in court and may be made an order of court. When made an
order of courts is, irrevocable; otherwise it is revocable at any time be­
fore award.
An agreement to arbitrate cannot be specifically
enforced.
A rrest. Defendant in a civil action may be arrested when about
to leave the State or conceal his property, with intent to defraud
creditors, and in certain other action where fraud, wilful injury, or
wilful violation of duty, or wrongful conversion of money or property
b y a public officer or a fiduciary, or for fine or penalty.
A ssig n m en ts. Voluntary assignments for benefit of creditors
allowed if without conditional preference, not coercive, impartial,
without reservation for fraudulent benefit of assignor, and does not
confer power upon assignee to delay execution of the trust, nor exempt
him from liability for negligence or misconduct. Is under partial
supervision of the district court.
A tta c h m e n ts. W rit of may be had at the time of issuing summons
or any time thereafter in actions upon unsecured contracts express
or implied for direct payment of money; or if contracts originally
secured, when security has_ become worthless without plaintiff’ s
fault. Is issued upon affidavit on behalf of plaintiff, after filing bond
in double amount of claim, if under $1,000; if over, in amount of claim;
bond never to exceed $10,000. Any property, real or personal, or
debt due from or money or personal property held b y third person,
may be attached.
B a n k s. No special provisions regarding National banks except
that all banks, organized under laws of this State or the United States,
shall be taxed for value of its stock in county, town, city or district
where located and not elsewhere, regardless of residence of stock­
holders.
Banks of discount and deposit, incorporated under laws of Montana
for not less than $20,000, all paid in cash, may do business when
authorized b y State auditor, certificate of auditor to be published four
times in town or county where located. Each director must own at
least ten shares of the bank’s stock. Bank may deal in real estate
only as is necessary to the proper transaction of its business, or in
realizing upon securities. Directors must declare semi-annual dividend
out of net earnings, and at same time make report to State auditor of
assets and liabilities, and publish once. Stockholders are liable for
banks’ debts to extend of sock held by tfiem. Their liability con­
tinues six months after a transfer of the stock. Failure to comply
with requirements for sixty days forfeit franchise.
The total liability of any person, firm, corporation, or company to
any such bank for money borrowed shall at no time exceed fifteen
per cent of paid in capital and permanent surplus; this does not apply
to discount of bills of exchange drawn upon existing values or of com­
mercial paper owned b y person negotiating same.
Each such bank must keep on hand funds equal to 20 per cent of
its immediate liabilities half cash and half balances due from solvent
bank. One hundred dollars to five hundred dollars penalty for
making new loans while reserve below the proportion. Laws provide
for State examiner, who visits and examines financial condition of
banks yearly. Banks charged certain fees for State examiner fund.
Any employee, officer, or agent of any bank or person doing a bank
business, who receives deposits knowing^ or having reason to know
that such banking institution is unsafe or insolvent, is guilty of felony,
and is liable to imprisonment for one to twenty years.
Banks may be dissolved b y district court upon voluntary applica­
tion, or when declared insolvent b y State examiner. Saving bank
corporation may be organized with not less than $100,000 nor more
than $500,000 capital divided into shares of $100 each, $100,000 to
be subscribed in cash before beginning business. May do a general
deposit and loan business. Stockholders liability to same extent as
in other banks.
Foreign banking corporations may establish branch banks in this
State upon compliance with certain special laws.
C o n v ey a n ces. Title to property of any kind (except
possibility not coupled with,an interest), including a right of
for breach of condition subsequent, and property in the
possession of another, may be transferred. Deed to several

a mere
re-entry
adverse
persons,

BANKING AND COMMERCIAL LAW S—MONTANA
except to executors and trustees, creates tenancy in common unless
expressly declared a joint tenancy in tlie deed. The fee simple title
passes b y a grant, unless expressly limited to a less title in the deed.
Covenants that the grantor has made no previous deed to any other
person, and that the premises are free from incumbrance by the
grantor or any one claiming under him are implied from use of word
grant.
A married woman joining with her husband in any instrument
affecting real property is bound thereby the same as though single'
if duly acknowledged by her. Instruments affecting real property
may, if acknowledged, be recorded, and such record imparts notice
to the world. (.See acknowledgments.')
. C orp ora tion s are formed under the general statute, except bankmg, msurance and railroad corporations, and corporations not for
profit, which are governed by special laws. Stockholders have one
vote for each share, may vote in person or by proxy, and may cumulate votes m director elections. Articles of incorporations filed in
county where principal office located, and copy filed with Secretary of
State; may hold only necessary real estate; from three to thirteen
directors, who may be empowered to make by-laws; control businessstock issued for money or pronerty; stock liability limited to unpaid
portion, directors assenting to creation of debts bevond subscribed
capital stock or making dividends out of capital stock are jointly and
severally liable therefor; stockholder may examine books; written
transfer or power of attorney to sel 1, and delivery of certificate passes
title, between parties and against creditors; may be attached on
books of corporation. Every domestic corporation having a capital
stock must file report in county clerk’s office, within twenty days after
December 31st of each year, showing amount of capital stock, amount
paid m cash, and amount paid in property, amount of existing debts
and names and addresses of directors, president, vice-president, gen­
eral manager and secretary; directors neglecting to file are jointly
and severally liable for debts existing during failure to file- director
may exonerate himself b y filing within ten days after default affidavit
showing that during the twenty days he asked president or sufficient
directors to file, and that default is not due to his neglect.
Foreign corporations, except insurance companies and corporations
otherwise provided for, may do business after filing with Secretary
of State and in county where intend to do business, copy of charter
and verified statement of president and secretary, showing name,
capital stock, amount paid in money or property, assets and of what
consist, and their actual cash value, and amount of liabilities; also a
consent to be sued and appointment of agent for service of process
and acceptance of same. If capital increased or diminished must file
certificate thereof with Secretary of State and county clerk, and refusal
to do so forfeits right to do business in State. Must within two months
after April 1st, file report like verified statement just mentioned, in
county clerk’ s office, and copy with Secretary of State. Can have no
greater rights or privileges than domestic corporations.
C ou rts. District courts have Original jurisdiction in law and
equity where over $50 involved; have probate and criminal juris­
diction. City police courts of petty criminal jurisdiction. Justices
of peace limited to $300, petty criminal cases; cannot try title to land,
nor questions of constitutionality. Appeals lie from justice to district
and from district to supreme court. Supreme court appellate court
of last resort, except has original jurisdiction in applications for
habeas corpus and similar writs.
D a y s o f G ra ce . (.None.)
D e p o sitio n s of resident may be taken when witness is a party in
interest, or resides out of the county, or is about to leave and will
probably continue absent, or is too infirm to attend; or the testimony
is to be used, on a motion, or when witness is only one who can estab­
lish a material fact and his presence cannot be procured at the trial.
Examination may be upon oral questions or by agreement upon written
interrogatories. In case of non-resident within United States, judge
may issue commission upon five days’ notice, if parties do not agree
upon person, to any judge, or justice or commissioner.
If out of
United States, may be directed to a minister, embassador, consul,
vice-consul or consular agent of the United States in such country,
or to snch person as may be agreed upon Examination of non­
residents unless otherwise agreed, must be by written interrogatories.
D e sc e n t. Intestates’ real and personal property, subject to pay­
ment of debts, descends as follows: If widow or surviving husband
and one child, half to each; if widow or surviving husband, and more
than one child or one child and lawful issue of one or more deceased
child, one-third to husband or wife and two-thirds to such children and
issue per stirpes: if no child living, two-thirds to lineal descendants,
equally if of same degree, if not, per stirpes; if issue and no husband or
wife, whole estate to issue if such issue consists of more than one child
living and lawful issue of deceased child or children, then in equal
shares^ to living children and issue of deceased children per stirpes;
if no issue, one-half to husband or wife and one-half to father and
mother in equal shares, or if either be dead, the whole half goes to the
survivor. If no father or mother one-half in equal shares to brothers
and sisters or thejr children per stirpes. If no issue nor husband or
wife, entire estate to father and mother equally, or to survivor. If no
issue father, mother, husband, nor wife, in equal shares to brothers
and sisters and to children of any deceased brother or isster per stirpes.
If surviving husband or wife, and neither issue, father, mother, brother,
nor sister, entire estate to husband or wife; if none of above men­
tioned, to next of kin in equal degree, claiming through nearest
ancestor; if leaves more than one child, or one and the issue of one or
more deceased children, and any such child die unmarried under age,
his share goes to children of same parent or their issue per stirpes.
If no husband, wife or kindred, the property escheats to State. Illegi­
timate child is heir of person who acknowledges himself, in writing
before a competent witness, to be its father, and is an heir of his
mother; if parents intermarry, is legitimatized.
D iv o r c e may be granted for adultery, extreme cruelty, wilful
desertion, wilful neglect, habitual intemperance, and conviction of
felony. Plaintiff must have been a resident of State one year. Annul­
ment of marriage may be had: 1. Where plaintiff was under age of
consent. 2. Former husband or wife. 3. Unsound mind. 4. Consent
was obtained by fraud. 5. Or b y force. 6. Or incurably impotent at
time of marriage. Free co-habitation after knowledge (except in 2d
and 6th cases) works condonation.
D o w e r . Curtesy abolished. Wife endowed of third of lands owned
b y husband during I marriage. Equitable estates and contracts
included. No dower in lands mortgaged for purchase price as against
mortgagee, nor in lands conveyed to him by way of mortgage unless he
acquire absolute title during life time. Devise or bequest bars widow’ s
dower unless otherwise expressed in will, but she may elect between
devise or bequest and dower, within one year, in writing. If husband
die leaving do children nor descendants of children, widow may have,


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1201

absolutely, one-half of all his estate after payment of , debts if she
elect within two months after payment of debts. A woman may be
barred of dower by jointure with her assent before marriage, consisting
oi freehold m lands of life, at least, beginning at death of husband
Dower is not affected except by wife’s deed.
E x e cu tio n unless stayed by order of court, may issue at once upon
rendition of judgment; becomes lien on personality upon seizure bv
officer holding writ. All property sold to highest bidder. Defendant
or creditor.may redeem from sale of real estate within year or sixtv
days after previous redemption.
’
y
E x em p tion s. To head of family, homestead to value of $2 500
and descends as such to surviving wife or husband and children’
ii famlIy allowed wearing apparel, chairs, tables, books at
$200, all necessary household goods and certain domestic animals’and
provisions for three months; thirty days earnings exempt w h e re
necessary for support of family, except one-half such earnings mav be
taken for debts for necessaries. Generally, tools and implements of
trade, libraries, etc., of professional men who are heads of families a r e
exempt.
alc
F ra u d . It is criminal fraud to attempt to obtain insurance monev
wrongfully; or fraudulently, destroys insured property: to issue sell
transfer or pledge any false, fraudulent or simulated stock certificate
or evidence of shares of any corporation, or any officer to sign anv such
certificate; unauthorized use of another’s name in selling stock- for
a director, officer, or agent of corporation to publish false report of its
affairs; to falsely represent one’s self as competent to sell or mortgage
real estate when signature of husband or wife is necessarv* to gef
money or property by false representations as to wealth or mercantile
character; to sell any land after having once sold or agreed in writing
to sefi the same to another; to convey any real or personal property
with intent to defraud and deceive others or to hinder or delay credi­
tors; to wilfully certify any false acknowledgment with intent- to
defraud; to issue any false warehouse receipts 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 pronertv
covered by chattel mortgage. Any negotiable instrument procured
by fraud or circumvention to be executed is void even in hands <bf
innocent holder.
r ra u u s, Biaxure or. Agreement of executor or administrator to
answer for obligation of decedent out of his own estate; agreement
not to be performed m one year; promise to answer for obligation of
another, unless it is made an original ¡obligation of promisorv- an
agreement upon consideration of marriage, except mutual promise to
marry; for sale of personalty at a price of over $200, unless oart of
price paid or part of goods accepted, except at auction sale when
auctioneer enter sale m sale book; lease for over one year- for sale of
realty, or authorizing broker or agent to sell land for compensation •
is void unless m writing signed by party to be charged or his agent
duly authorized (in writing m case of agreements affecting real estate)
Every transfer of property, or charge thereon made, every obligation
mcurred, every judicial proceeding taken, and every act performed
with intent to delay or defraud any creditor, or other person of his
demands, is void against all creditors of the debtor and their represen­
tatives or successors in interest, and against any person upon whom
the estate of the debtor devolves m trust for the benefit of others than
debtor. All declarations of trust in lands shall be in writing except
resulting trusts or trusts created by implication or operation of law *
H u sb a n d an d W ife . Husband must support wife if able- if-not
she¡must assist, neither has any interest in others propertv ’subieet
to foregoing, but neither can be exluded from others dwelling- m a v
contract with each other, or any other persons, the same as though
unmarried; cannot alter legal relation by contract, except mav agree
to immediate separation, mutual consent being sufficient consideration •
may hold property jointly or in comm on; wife may sue and defend’
alone; all property of wife is her separate property, and she can con­
vey, or execute power of attorney thereon without husband’s consent
Her deed must be acknowledged. Filing inventory of her personal
property exempts same from claims against husband except for
necessaries for herself and her children. Wife must support husband
out of her property if he is infirm. Wife may dispose of her propertv
by will, except that such will must not, without his written consent
deprive husband of over two thirds of her real estate or two-thirds
of her personal property; W ife may make contract, etc., the same as
though single. If husband neglect to support his wife bills for
necessaries sold her can be collected from him, but not when separated
by consent, unless support stipulated in such agreement.
Interest. Eight per cent on judgments and damages. In other
cases 8 per cent m absence of agreement. No usury law.
Ju d g m en t of courts of record (including federal courts of countv-)
it transcript of such judgment if filed in district court are lien on realty
m county for six years; realty in another county becomes subject to
lien upon filing of transcript of judgment in such county. Abstract
of justice court judgment becomes lien orqrealty in any countv where
nled lit district court.
Laboreis and niatcrialmcn liav© lien, for labor or material
on property. Must file in county clerk’ s office within ninety da vs
and suit must be brought within a year after filing. Hotel, boarding
and lodging house keepers have lien on baggage of guests brought
into such house. One performing service with respect to personal
property, mcludmg feed and care of animals, has a lien upon such
personality or animals.
L im ita tion s o f A c tio n s . Action upon judgment of any court of
record, action to redeem from mortgage when mortgagee is in posses­
sion, ten years; actions for recovery of real estate or mesne profits
thereof, ten years, but in such cases statute does not run against
person who at the time title first descends or accrues is a minor or in­
sane, or imprisoned on criminal charge for less than life, until such
disability ceases; upon contract, account or promise without writing
eight years to establish lost, concealed, or destroyed will, or upon a
judgment of a court not of record, five years; against sheriff coroner
or constable for breach of official duty, action for damages for wrongful
death, or for obligation not m writing, other than a contract, account
or promise, three years; upon statutory liability for waste or tresspass
detainer of or injury to chattels, for relief on ground of fraud or mis­
take, or for libel, slander, assault, battery, false imprisonment or
seduction, two years. Against a sheriff or other officer for escape of
civff prisoner; against municipality for violation of ordinance, against
officer for money or property taken as such, and against railroad for
stock killed or injured, one year; to recover stock sold for delinquent
assessment, and actions against a county after rejection of cl air» bv
county commissioners, six months.
All cases not specifically mentioned, five years. Statute does not
run durmg absence of defendant from this state.

1202

BANKING AND COMMERCIAL LAW S—NEBRASKA. -

M arried W o m e n . (See Husband and-Wife.)
M o rtg a g e s of real estate are executed same as deeds. Husband
and wife must join to bar dower or homestead, except purchase moneymortgages. Non-judicial sale under power valid.'
Chattel mortgage must be duly acknowledged, and be accompanied
b y affidavit of both parties that same is made in good faith and not to
hinder, delay or defraud creditors; not valid except between parties
until recorded in county where mortgagor resides, or if non-resident,
where property is situated. Lien good until maturity of debt not
exceeding one year and sixty days. May be renewed b y filing affidavit
within sixty days after maturity, stating amount still due, and alleging
good faith, etc.
N eg o tia b le In stru m e n ts. Must be payable in money and must
contain an unconditional promise to pay a sum certain on demand or
a t a fixed or determinable future time; must be payable to order or
St0 bearer; may be in installments and contain provision that on any
default tlie whole shall become due; with exchange fixed or current
rate, interest and attorney’ s fees for collection; may authorize sale
o f collaterals and confession of judgment; if- it reads “ I promise to
pay” all signers are jointly and severally liable; may be payable at
fixed time after date or sight, or after specified certain event, but not
upon a contingency; need not specify value given nor place where
drawn or payable; if issued* accepted, or endorsed when overdue it is
payable on demand; may be payable to two or more payees jointly, or
one or more of several payees; absence or failure of consideration a
defense against one-not a holder in due course and partial failure a
defense pm tanto. One not a party to instrument placing a signature
in blank before delivery becomes an endorser. Every endorser engages
that on due presentment it shall be honored or that he will pay the
amount to holder or any subsequent endorser who may be compelled
to pay; no days of grace; when maturity falls on Sunday or holiday
payment is due on next business day; if due on Saturday must be
presented on next business, day, but if payable on demand holder may
present same before noon on Saturday. Fraud and circumvention m
procuring execution of instrument is a defense against any holder.
Presentment. It is not necessary to charge one pimarily liable if
payable at special place ability and willingness to pay it there at
maturity is equivalent to a tender; if not on demand it must be pre­
sented on day it falls due, if on demand then within a reasonable time
after its issue, except a bill of exchange mast be presented within
reasonable time after its last negotation.
>. .
Alterations, fradulent or material, do not affect original instrument
in hands of innocent holder in due course.
_
„
Acceptance. Unconditional promise in writing to accept a bill
before or after drawn is good in favor of all who take it upon faith
thereof for value. The holder may decline a qualified acceptance and
treat the bill as dishonored; if he takes qualified acceptance drawer
and endorsers are discharged, unless they consent thereto.
Protest, of foeign bills may be made b y notary public or by any
respectable resident of the place in presence-of two or more credible
witnesses: bill of exchange does not operate to assign funds in hands
o f drawee and he is not liable unless he accepts.
_
Promisory Note, must be unconditional promise m writing to
pay on demand or at fixed or determinable time a sum certain in
money to order or bearer, and where drawn to maker’s own order is
not complete until endorsed by him; may be in installments.
A Check is a bill of exchange on a bank payable on demand; must
be presented within reasonable time after issue and if dishonored
notice must be given or drawer is discharged to the extent of loss
caused b y dely; does not opperate to assign any part of drawer’s
funds in bank and band is not liable unless it accepts or certifies. If
holder has check certified the drawer and endorsers are discharged.
■ The present negotiable instrument law of Montana consisting of 198
sections went into force March 7, 1903. Its provisions do not apply
to instruments made prior thereto. The act so materially changes
the law in this State as to suggest the propriety of special examina­
tion in any doubtful case.
I
. I I I I
. .
This law is nearly if not quite identical with that now m toree m
New York, Illinois, and other States.
R e p le v in . The plaintiff in an action to recover possession of personal
property may replevy the same at the time of issuing summons or at any
time before answer, upon making affidavit showing that the plaintiff is
the owner of the property or entitled to possession thereof; that it is
wrongfully detained, and has not been taken for a tax, assessment or fine
pursuant to a statute or seized under an attachment or an execution
against the plaintiff;' or if so seized that it is exempt; and also stating
t£e actual value of the property. A demand for the delivery of the
property should be indorsed upon the affidavit and an undertaking m
double the value of the property1must be given. The defendant has two
days in which to except to plaintiff’s sureties, or he may require the return
Qf l!* property by giving an undertaking in double the value of the
property. If such undertaking is not given within five days from the
replevy the property must be turned over to the plaintiff.
T a x e s. All kinds of property, except public property and property for
beneficent purposes, are subject to tax for public purposes only. Such
taxes are a lien upon the property, which lien has the effect of an execution
levied on all such as are delinquent after the 30th day of November, after
which a penalty of 10 per cent is added. The delinquent tax list is
published in some newspaper on or before the last Monday of each year,
and in not less than twenty-one and not more than twenty-eight days after
the first publication sale of the real estate is made, subject to redemption
within thirty-six months from date of sale.
The purchase money
draws interest at 1 per cent a month, from the date of sale
The purchaser is entitled to a tax deed at the end of the thirty-six months but
must give thirty days’ notice to the owner or occupant of the property.
Taxes are assessed to the party in whose name the property stands of
record on the first Monday in March of each year. An inheritance tax of
*5 for every $100 worth of property must be paid by anyone, not a
blood relation, inheriting such property; and blood relations and adopted
children pay a tax of $1 for $100 worth of property inherited. Estates
under $7,500 not liable for inheritance tax.
Redemption may be made before deed b y payment of taxes, 10 per
cent penalty, 50 cents for publication, and interest at 1 per cent per
month.
W ills - Every person over eighteen years of age and of sound mind
may dispose of all his estate, real and personal, by will. All wills, except
nuncupative, must be in writing. And all wills, except nuncupative and
holographic, must be executed and attested as follows: 1. Must be sub­
scribed by the testator himself, or some one in his presence and by his
direction, must subscribe his name thereto. 2. The testator’s signature
must be made in the presence of the attesting witnesses or acknowledged
to have been made by him or by his authority. 3. The testator must
declare to the attesting witnesses that the instrument is his will. 4. There
must be two attesting witnesses who must sign the will at the testator’s


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request, In his presence. An holographic will is one entirely written by
the testator himself and subject to no form. The estate bequeathed by a
nuncupative will must not exceed $1,000 in value, must be proved by two
witnesses, must have been made in actual contemplation, fear, or peril of
death, and must be proved within six months after stating the testamen­
tary words unless the substance thereof was reduced to writing within
thirty days after they were spoken. A will executed according to law of
the State where the testator was then domiciled may be probated in this
State.

SYNOPSIS OF THE LAWS OF NEBRASKA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Revised by M o n t g o m e r y & H a l l , Attorneys at Law, Omaha.
(See Card in Attorneys' List.)
A c k n o w le d g m e n ts (See Deeds) may be made in this State
before a notary, clerk of any court, justice of the peace, county clerk,
register of. deeds, secretary of State, under seal, if the officer have one.
If acknowledgment taken in any other State or Territory, it must be in
accordance with .the laws of this State or of the State or Territory
where taken, before any officer authorized by the laws of the State, or a
commissioner of deeds appointed by the Governor of this State for that
purpose. If the officer have no seal, then the acknowledgment must have
attached thereto a certificate of the clerk of a court of record, or other
proper certifying officer of the district or State where taken, under the
seal of his office, showing that the person taking the acknowledgment
was, at the date thereof, such officer as he is therein represented to be;
that he is well acquainted with the handwriting of such officer; that he
believes the said signature of the officer to be genuine, and that the deed
or other instrument is acknowledged in accordance with the laws of
such State, district, or Territory. I f acknowledgment taken in a foreign
country, it may be acknowledged before any notary public, minister
plenipotentiary, extraordinary or resident, charge de- affaires, commis­
sioner, commercial agent or consul of the United States. In executing
acknowledgment, notaries public must write in the date when thencommission expires or else said date must be imprinted on their seals.
A c tio n s . Must be brought by real party in interest, except as to
administrator, trustee, etc. Non-resident plaintiff must give security
for costs.
A d m in is tr a tio n o f E sta tes. (See Decedents.) County courts have
exclusive jurisdiction over estates. Administration is granted to widow
or next of kin, or both, or some one selected by them; but if unsuitable,
or if they fail for thirty days after death of a party to apply for letters,
same mav be issued to a creditor, or to some one selected by the judge.
Executors and administrators must give bond, as required by the court,
and must, within three months after appointment, make report of all
property belonging to deceased. General letters of administration are
only issued after due notice to parties interested, and if case is urgent a
special administrator maybe appointed, who shall name report within two
weeks. Personalty is disposed of under direction of the county court,
but to sell real estate, license must be obtained from the district court.
Debts of decedent are a lien upon all real estate.
A ffid a v its. (See Depositions.) Affidavits may be made before anyone
authorized to take depositions, and must be subscribed in presence of
the officer and sworn to before him, and this fact must be stated in the
affidavit. If made out of State and the officer has no seal, affidavit must
have attached thereto a certificate of clerk of a court of record reciting
authority of such officer.
A lie n s . Non-resident aliens and foreign corporations may not own or
hold real estate in Nebraska, but the widows and heirs of such aliens
who held lands prior to March 16,1889, have ten years to dispose of their
interests, and those who acquired their ownership prior to that date may
dispose of same during their life. If not so disposed of, the lands
escheat to the State. However, non-resident aliens may acquire a lien
upon real estate, and, pursuant or subsequent to such, may purchase
such real estate, but shall dispose of same within ten years from time of
acquiring title. These provisions do not apply to railroads nor to real
estate upon which buildings are erected and maintained for manufactur­
ing purposes, nor to that within the corporate limits of cities and towns.
Aliens who declare their intention to become citizens ol the United States
thirty days before an election, conformably to the laws of the United
States on subject of naturalization, are electors, same as citizens.
A r b it r a t io n . Instead o f submitting a controversy to a court,
parties may agree in writing to arbitrators, whose decision, after confir­
mation by the court, shall stand as a judgment.
A r re sts. Arrest and imprisonment in civil actions for debt are
abolished.
A s s ig n m e n ts .
(See Exemptions, Acknowledgments.)_ Every
assignment for benefit of creditors shall be made to the sheriff of the
county, and shall include all property of the assignor, except such as
m aybe exempt. Assignments shall be executed and acknowledged the
same as a deed to real estate, and within twenty four hours after its
execution shall be filed for record in the county clerk’s office, and if real
estate is mentioned therein, it shall also be recorded in the register o f
deeds office, and within thirty days it shall be recorded in any other
county where property conveyed be situated. A creditor may file and
prove a claim and concurrent therewith, may pursue a separate remedy
against the assignors for the collection of such claim. Conveyances,
preferences, payments, pledges or transfers of property made by an
insolvent debtor in contemplation of such insolvency, within thirty days
prior to making an assignment, are void, except that the assignor may
pay or secure clerks or servants’ wages, not exceeding $100 to any one
person, and may pay or secure any debt created within nine months
prior to that time and may secure any debt contracted simultaneously
with the giving of such securitv.
A tt a c h m e n t s . The plaintiff at the commencement of an action may
have an attachment against the defendant’s property, when the amount is
dae, by filing an affidavit showing any of the following grounds: 1. That
the defendant is a foreign corporation or non-resident of the State. 2. Has
absconded with intent to defraud creditors. 3. Has left the country or his
residence to avoid the service of summons. 4. So conceals himself that a
summons can not be served upon him. 5. 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. 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. Has property or rights in action which he conceals. 8. Has

BANKING AND COMMERCIAL LA W S—NEBRASKA.
assigned, removed, or disposed of, or is about to dispose or bis property,
or a part thereof, with intent to defraud his creditors. 9. Fraudulently
contracted the debt, or incurred the obligation for which suit is brought.
"The affidavit must further show the nature of plaintiff's claim, that it is just
and the amount which affiant believes plaintiff ought to recover. No
undertaking is required where the defendant is a foreign corporation, or
is a non-resident of the State. In ail other cases plaintiff must give an
undertaking in double the amount o f his claim. If property can not be
■seized by the officer it may be reached by garnishment process.

1203

sue and be sued, to complain and defend in courts of equity and
law. 3. To make and use a common seal and alter the same at
pleasure. 4. To hold personal estate and all such real estate as
may be necessary for the legitimate business of the corporation. 5. To
render al| interest of the stockholders transferable. 6. To appoint such
subordinate officers and agents as the business of the corporation shall
require, and allow them a suitable compensation therefor. 7. To make
by-laws not inconsistent with any existing law, for the management of its
affairs. Every corporation previous to the commencement of any busi­
ness, except its own organization, when the same is not formed by legis­
lative enactment, must adopt articles of incorporation and have them filed
in the office of the secretary of State; and domestic corporations must
also file with the county clerk in the county where their headquarters are
located, except mutual insurance companies, building and loan compa­
nies, loan and investment companies, and banking ins'itutions, which
shall be filed with the State auditor and State banking board. The
articles of incorporation must fix the highest amount of indebtedness of
liability to which the corporation shall, at any onfe time, be subject,
which must in no case exceed two-thirds of the capital stock. (Excep­
tions made for insurance companies, deposits in banks, loan and trust
companies.) Must incorporate within one year after organization, or
power ceases. Notice must be published in some newspaper near the
principal place of business, for four weeks. Such notice shall contain.
1. The name of the corporation. 2. The principal place of transacting
its business. 3. General nature of the business to be transacted. 4.
The amount of capital stock authorized, and the time and conditions on
which it is to be paid in. 5. The time of commencement and termina­
tion of said corporation. 6. Highest amount of indebtedness or liability
to which corporation is at any time to subject itself. 7. By what officers
the affairs of the corporation are to be conducted. The notice required
must be published within four months from the time of filing such arti­
cles. Two-thirds of its members may dissolve corporation unless other­
wise adopted in articles of incorporation. Copy of by-laws of the corpor­
ation, with the names of' all the officers appended thereto, must be posted
in some conspicuous place at the place of doing business, subject to pub­
lic inspection. Shall give notice annually, in some newspaper printed in
the county or counties, or in State, if none in the county, of the amount
of all existing debts of the corporation, signed by the president and a
majority of the directors. If corporation shall fail to do so, stockholders
of corporation shall be j dntly and severally liable for all tnedebts of the
corporation after exhausting its assets, and for all debts contracted before
said notice is given, to the amount of the unpaid individual subscription
of any stockholder to capital stock, and in addition thereto the amount of
capital stock owned by such individual.

Banking. Any corporation, partnership, or individual may transact
a banking business by first obtaining permission from the State
banking board, which has supervision and control ot all banking
institutions in the State, and shall appoint examiners, whose duty
it is to carefully investigate the affairs of each bank at least once a
year. Savings banks shall have at least $12,000 capital and other banks
shall have a capital as follows: In communities having inhabitants
•up to 1,500, $10,000; over 1,500 and up to 2,000, $15,000; between 2,000
and 3,000, $20,000; between 3,000 and 5,000, $25,000; between 5,000 and
10,000, $30,000; more than 10,000, $50,000. Such capital shall be in
money, bank furniture, and the bank building and ground on which
situated, which ground shall be unincumbered, but in no case shall
the bank building and ground, together with furniture and fixtures,
exceed in value one-third of the paid-up capital, and the furniture
And fixtures alone shall not exceed in value 10 per cent o f the paid-up
capital. Before commencing business the bank shall make a detailed
statement of the proposed business to the banking board, which, after
approval, shall issue a charter. Every bank must make at least quarterly
detailed reports under oath, showing the amount loaned upon bonds and
mortgages, amount loaned upon notes, bills o f exchange, overdrafts, and
■other securities, with the actual market value thereof, the amount of
■rediscounts and o f commercial paper past due, the amount invested in
real estate, at cost, the amount of cash on hand and on deposit in banks
or trust companies, with their names and the amount deposited in each,
and the amount of all other assets, together with such other information
as the banking board may require. A summary o f such report must be
published in some local newspaper and proof of such publication trans­
mitted to the banking board, and such board may call for special reports
at any time. Failure to make reports entails a penalty o f $50 for each
«lay’s delinquency, and those making false statements in such reports or
in the books of the bank may be punished as felons. It is likewise a
felony for a bank to receive moneys or permit same to be received on
■deposit when the bank is insolvent; to loan to an officer or employe of the
corporation, without the approval of a majority of the directors; to carry
as assets any note or obligation o f the partnership, member thereof, or
individual, where such partnership or individual do a banking business;
to permit shareholders, where the bank is a corporation, to become
indebted in a sum exceeding 50 per cent of the paid-up capital of such
bank. Every stockholder is liable for debts accruing during his owner­
ship of stock, for an amount equal to the paid-up value of the shares held,
and all shares oi stock are assessed in the place where the bank is located,
whether the owners thereof reside there or not, and taxes are a lien upon
the stock. No savings bank shall receive deposits exceeding ten times
its paid-up capital and surplus.
B ills of Exchange. (See Notes and Bills o f Exchange.)
Bonds. {See Surety Bonds.)
Chattel Mortgages. Every chattel mortgage, ii not accompanied
by an immediate delivery of the goods and be followed by an actual and
continued change of possession thereof, is absolutely void as against
creditors of the mortgagor and as against subsequent purchasers and
mortgagees in good faith, unless such mortgage, or a copy thereof, be
filed in the county clerk’s office where the mortgagor resides, and if he be
a non-resident, then in the clerk’ s office of the county where the mort­
gaged property be situated. Such chattel mortgage need not be acknowl­
edged unless it convey household goods used in the family by the hus­
band and wife, or either, in which case it must be signed and ac­
knowledged by both husband and wife, the same as real estate convey­
ances. Verbal mortgages are good between the parties. It is a felony
to transfer or dispose o f personal property mortgaged without procuring
the consent of the mortgagee, or to remove same out of the county with
intent to defraud the mortgagee of his security.
Claims. {See Accounts, Administration o f Estates.)
Com m ercial Travelers. {See Licenses.)
Code. •{See Revision.)
Conditional Sales. A sale or lease of personalty may be made
and title thereto retained in the vendor until the purchase price be fully
paid, or condition complied with, by having the contract of sale or lease
in writing signed by the vendee or lessee, and then filing copy of same in
the county clerk’ s office, with affidavit of vendor, his agent or attorney
attached thereto, giving names and full and true interest of parties and
description of the property. Such sale or lease shall be invalid at expira­
tion of five years as against purchasers in good faith, or judgment or
attaching creditors, unless the vendor or lessor shall, within thirty days
prior to the expiration o f the five years, repeat the filing, which must be
made annually thereafter. These sales are valid as between the parties
and as against judgment or attaching creditors and subsequent purchas­
ers and mortgagees with notice.
Consignments. It is a felony on the part of a factor or agent to
whom goods have been consigned to sell or assign such goods with intent
to defraud the owner. Is also a felony for the owner of goods, after
receiving an advancement upon the shipment, to sell or transfer such
goods contrary to the agreement between him and the consignee.

Deeds, {see Acknowledgments, Married Women) must be signed in
presence of one witness and acknowledged. Grantor’s seal not required.
Deed conveys all interest of the grantor, unless a contrary intention is
expressed.
Depositions may be taken at any time after service of summons, and
may be used as evidence, only when the witness does not reside in the
county of trial or is absent therefrom, or is unable to attend court, or is
dead, or when written testimony is required instead of it being oral; may
be taken before various officers, but are usually taken before a notary 'pub­
lic. The officer must not be a relative or the attorney of either party or
otherwise interested in the event of the action, and this fact should be
stated in his certificate attached to the deposition. If taken out of the
State, and the officer has no seal, a certificate under the great seal o f
the State, or of a clerk of a court of record under seal should be ap­
pended, stating that the officer was, at the time of taking the deposition,
properly authorized.

Contracts. Every contract for the purchase or sale of real estate or
any estate, except a lease for a period not exceeding one year from the
making thereof, must be in writing and subscribed by the parties. Every
agreement by its terms not to be performed within one year from the mak­
ing thereof, every special promise to answer for the debt, default or mis­
doings of another. Every agreement, promise, undertaking made upon
consideration of marriage, except mutual promise to marry, and every
special promise of an executor or administrator to answer damages out of
his own estate, and every contract for the sale of goods and things in
action, for the price of $50, or more, shall be void unless note or memo­
randum be made in writing by the party to be charged thereby. If, how­
ever, when contract for sale of goods and chattels of the value of $50
or more is made, and a part of the purchase price thereof is paid, or a
part of the goods and chattels are delivered, to the buyer, no memorandum
is necessary. {See Statute o f Fraud.)
Conveyances. {See Deeds,!Mortgages, Conditional Sales.)
Corporations. {See Foreign Corporations.) Any number of per­
sons may •associate and incorporate for the transaction of any lawful
business, including the construction of canals, railways, bridges, and
other works of internal improvements. Every corporation, as such,
has power: i! To have succession by its corporate name. 2. To

Descent and Distribution. {See Decedents.)
Distress fo r Kent. No authority for it.
Divorce. Complainant must have been a resident of the State for six
months immediately preceding commencement of the action, unless the
marriage is solemnized in this State, and the plaintiff shall have resided
therein from such time to the time of filing the complaint. A divorce
may be decreed for the following causes: Adultery, physical incompet­
ency at time of marriage, imprisonment for three years or more, aban­
donment for two years, habitual drunkenness, extreme cruelty, whether
personal violence used or not. A wife may obtain divorce on the ground
that the husband, being of sufficient ability to provide suitable main
tenance for her, shall grossly or wantonly and cruelly refuse or neglect
so to do. Both husband and wife may be witnesses as in other civil
cases. Alimony and suit money are allowed.
D o w e r . Abolished 1907. {Soe Decedents.)
Estates. {See Decedents.)
E x e c u tio n s {see Judgments, Proceedings in Aid o f Execution Mort­
gages) may Issue at any time after judgment, if no stay bond be filed, and
until five years thereafter. Land sold upon execution or decree
of court may be redeemed by the debtor at any time before con-


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Costs. {See Security fo r Costs.)
C ourts. {See Actions, Appeals.) Juvenile courts are established
for treatment and control of dependent, neglected and delinquent
children. Justice and county courts are, for all practical purposes,
open at all times except holidays; but their jurisdiction is limited.
District courts have^ general jurisdiction, and have exclusive juris­
diction in certain cases. The terms of the district court in each
county are fixed by the presiding judge at the beginning of each year.
The supreme court has original jurisdiction in a few cases provided by
statute, but its work is principally confined to reviewing decisions of
the district court.
C urtesy. Abolished 1907. {See Decedents.)
Days o f Grace. {See Notes.)
Decedents. {See Administration o f Estates.) If a party leaves
no will his property descends subject to his debts as follows:
1. One-fourth to the husband or wife, if survivor is not the parent of
the children. 2. One-third to the husband or wife, if survivor is parent
of the children. 3. One-balf to husband or wife, if one or no child liv­
ing. Residue to blood relatives. 4. If no husoand or wife surviving, to
the children in equal shares and lawful issue of deceased child by repre­
sentation. 5. If no issue, to father and mother or survivor. 6. I f no
issue nor parents, in equal shares to brothers and sister- and children of
such deceased, by representation. 7. If no parents nor brothers nor sis­
ters, to next of km in equal degree, but where there are two or more col­
lateral kindred in equal degree, but claiming through different, ancestors,
those claiming Through nearest ancestor are preferred to those more
remote.^ Provision is also made for surviving children dying under ,age
unmarried. Claims avainst estates must be presented within time fixed
by Probate Court, of which no ice is given by advertisement, and is not
lees than six months nor more than two years after letters of administra­
tion issue. Dower and courtesy are abolished.

1204

BANKING AND COMMERCIAL LAW S— NEBRASKA.

firmation o f such sale. A _stay o f execution is allowed by giving
bond with approved sureties as follows: In district court within
twenty days, not on judgments exceeding $50, three months; $50 to $100,
six months; exceeding $100, nine months. In justice and county courts,
within ten days, as follow s: $10 or under, stay o f sixty days; $10 to $50,
ninety days; $50 to $100,six months; over $100, nine months. Land sold
under execution must be appraised and must bring two-thirds of such
appraisement.
E x e m p t io n s . A head o f a family has exempt from levy and sale
certain personal property and household furniture enumerated in the
statute, and in addition thereto has exempt a homestead not exceeding
in value $2,000, exclusive of the mortgage thereon, consisting of a dwell­
ing in which the party resides and appurtenances and 160 acres o f land on
which same may be situated, or, at the option of the party, two contigu­
ous lots in any incorporated city or village. Such exempt property shall
be free from all judgment liens and from sale on execution, except that
the homestead may be sold on foreclosure of mechanics’ liens, and' of
mortgages executed by both husband and wife. I f paity has no home­
stead as above stated, he shall have exempt the sum o f $500 in personal
property in addition to the articles enumerated by statute. Mechanics,
miners, o r .other persons, whether heads o f families or not, have their
tools and instruments exempt, and a professional man’s library and
implements are likewise exempt. All pension money, and property
purchased and improved therewith, not exceeding $2,000 in value, is
exempt. Exemption law does not apply to claims for clerks, laborers or
mechanic’ s wages, nor can an attorney plead exemption in a suit for
money or other valuable consideration received by him.
F o r e ig n C o r p o r a tio n s (see Corporations, Aliens) may become
domestic by filing with the secretary of State a true copy of charter or
articles o f association, together with a certified copy of resolution adopted
by the board of directors accepting the provisions of the Act of the Legis­
lature of Nebraska, Chapter 42, Laws of 1889; must on or before J une 30,
1906, file with the attorney-general o f the State an undertaking signed by
officers, managers and directors that they will comply with the law, and
thereafter within ten days after election or appointment, file similar
undertaking; must on or before September 15, 1906, and in each year
thereafter, file a statement with attorney-general of State, sworn to,
showing capital stock, its market value, how paid, names of officers,
directors and agents, amount paid in dividends and rate of percentage
thereof, all stock held in other corporations and value o f such stock,
amount of its own stock held by other corporations and value thereof,
and amount of trust stock held by other corporations. Must appoint local
agent upon whom process may be served.
F ra u d . (See Statute o f Frauds, Limitations, Consignments.) Con­
veyances made for the purpose o f defrauding creditors are void and
intent is deemed a question of fact, not of law.
G a r n is h m e n t. (See Attachment.) Writ may be issued before judg­
ment in attachment proceedings. After judgment and after execution
returned unsatisfied, writ will issue by filing affidavit for same. No bond
required after judgment.
H o lid a y s are January 1st, February 22d, April 22d, May 30th, July
4th, first Monday in September, Thanksgiving, and December 25th. No
court can be open, nor can any judicial business be transacted on a holi­
day or Sunday, except, first, to give instructions to a jury then deliber­
ating on their verdict; second, to receive a verdict or discharge a jury;
third, to act as magistrate in a criminal proceeding; fourth, to grant or
refuse a temporary injunction or restraining order.
H o m e s t e a d . (SeeExemptions.)
H u sb a n d a n d W if e . (See Decedents, Divorce, Evidence, Exemp­
tions, M arried Women, Marriage.)
I n s o lv e n ts . (See Assignments.)
I n t e r e s t. Legal rate is 7 per cent and contract rate 10 per cent. Judg­
ments draw same rate as specified in the instrument on which judgment
obtained, otherwise 7 per cent. A contract is not avoided by usury, but in
action thereon all payments are deducted from the principal and plaintiff
recovers only the balance, without interest, and pays all costs.
J u d g m e n t s . (See Actions, Appeals, Exemptions, Executions,
Interest.) Those recovered in district court are liens upon real estate of
debtor from first day of term at which rendered, except those by confes­
sion and those rendered at the same term at which action commenced are
liens only from date of rendition. Transcripts of judgments in county and
justice courts become liens from date o f filing in the office of the clerk of
the district court. Judgments may be made a lien upon lands in other
counties by filing transcripts in the office o f the clerk o f the district court
in such counties. A judgment becomes dormant in five years and lien
upon real estate is lost ii execution not issued within that time. After
dormancy may be revived by certain proceedings. In judgments by con­
fession cause of action must be stated in the judgment or in a writing filed
as apleading. Deficiency judgments have been abolished.
J u r is d ic tio n . (See Actions, Judgments.)
J u s tic e s o f t h e P e a c e . (See Courts, Judgments, Actions.)
I n c e n s e . (See Insurance Agents.) Commercial travelers are not required to take out'a license. There is a provision in the code requiring all
peddlers to take out a license.
L ie n s . (See Judgments.) Material men and laborers and mechanics
are entitled to liens upon the building or improvements for material fur­
nished and labor performed, by filing in the office of the register of deeds
an itemized statement of account duly verified by affidavit of party, show­
ing amount due, nature of the contract, description of property, names of
the parties; and if the claim arise out of a written contract, or if a note or
other written evidence has been taken in payment o f the account, copies
must be attached. An original contractor must file such statement within
four months from the time o f furnishing such material or performing the
labor; a sub-contractor within sixtjr days. Lien dates back to com ­
mencement of work or labor and is valid for two years from date of filing.
All mechanics’ liens on the same premises are of equal priority and pro­
rate in the proceeds of sale of property, if sold under foreclosure thereof.
L im ita tio n s . Actions brought to recover real property or fore­
close mortgages thereon must be commenced within ten years after
cause -of action accrues. Actions for forcible entry and detention,
libel, Blander, assault and battery, malicious prosecution, false im­
prisonment, and those to enforce penalties or forfeitures, must be com­
menced within one year. Actions for trespass to real property, taking,
detaining or injuring personal property, upon contracts not in writing
upon the liability created by statute thereon, forfeiture or penalty for
injuries to rights notarising out of contract, for relief on the ground of
fraud, and all other actions not specifically limited by statute, must be
commenced within four years. Actions upon a specialty, agreement, con­
tract in writing, promissory notes, etc., and foreign judgments, must be
commenced within five years. Actions upon official bonds of executors,


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administrators, guardians, sheriffs, or other officers, and upon statutory
bonds, must be commenced within ten years. I f parties under disability,
cause of action does not commence to run until such disability removed.
Actions fo r damages for causing death must be brought within two
years.
L im it e d P a r tn e r s h ip . (See Partnerships.)- Articles thereof must
be in writing, acknowledged by the parties and recorded in the office of
the county clerk of every county where partnership shall have a place of
business. The special partner is not liable beyond the amount contrib­
uted to the partnership funds, but has nothing to do with the manage­
ment or conduct of the business; otherwise is liable as general partner.
Special partner’s name shall not appear in the firm.
M a r r ie d W o m e n (see Decedents, Evidence, Exemptions, Mar­
riage) may contract, bargain, sell, and convey their separate property
in the same manner as may a married man, and retain ownership andcontrol of their own property notwithstanding the marriage. May sue and
be sued, carry on trade or business as if unmarried, and earnings of any
married woman are her sole and separate property.
M ortg a g e s. (See Actions, Acknowledgments, Courts, Dower, Limi­
tations, Chattel Mortgages.) Mortgagor, regardless of stipulation con­
tained in mortgage (and in the absence of special agreement, which must
be in a separate writing), retains legal title and right of possession o f
property. In case o f assignment of mortgage it is safer to record the as­
signment. If note secured by mortgage is negotiable assignment need not
be recorded. Release may be by separate instrument or upon the mort­
gage records in register of deed’s office, and if mortgagee, after mortgage
fully paid, neglects or refuses for seven days to discharge such mortgage,
he is liable to a penalty o f $100 and all actual damages suffered by the
other party. Mortgages can only be foreclosed by suit, and after foreclos­
ure suit commenced no action can be maintained at law upon the debt, and
if action be first commenced at law, can not foreclose the mortgage until
judgment obtained and execution returned thereon unsatisfied. After
decree of foreclosure of mortgage obtained, defendant may stay further
proceedings for nine months by filing a request for stay in the office of
the clerk of the court within twenty days after such decree entered.
Such stay is equivalent to redemption period allowed in other States,
and owner may redeem at any time before confirmation of sale. Deeds
are held to be mortgages when intended only as security, and must be
foreclosed same as mortgages.
N e g o tia b le In s tr u m e n ts .

(See Motes.)

N o te s a n d B ills . All notes, bonds, or bills o f exchange, except
bank checks and instruments payable on demand, are payable at times
fixed therein, without grace; are not negotiable unless drawn payable
to a person, bearer, order, or assigns. If date of maturity fall on Saturday
or Sunday, or a holiday, are payable on the next business day. Party
purchasing negotiable paper before maturity, without notice, take same
free from equities between original parties. Uniform Negotiable Instru­
ment Law Is in force.
P a r tn e r s h ip (see Lim ited Partnerships) must adopt and sign articles
of partnership agreement showing firm name, nature and place of business,
name and residence of each member, and file same in the office of the
county clerk of the county where business is located. Neglect or refusal to
comply with this requirement entails penalty, but does not effect legality
of business transacted. Partnership may sue and be sued in the firm
name, and it is not necessary to set forth in the pleading, or prove at the
trial, the names o f the persons composing the firm, but in such event
plaintiff must give security for costs.
P le a d in g s.

(See Actions.)

P o w e r o f A tt o r n e y to convey real estate must be executed and
acknowledged same as deeds and may be recorded.
P r a c t ic e .

Regulated by code which is patterned after Ohio.

P r o b a t e . (See Courts, Decedents.) County court has exclusive origi­
nal jurisdiction of all probate matters.
P r o m is s o r y N otes.

(See Notes.)

P r o o f o f C la im s. (See Decedents, Accounts.)
dence govern as in civil actions.

Same rules of evi­

P r o te s t. (See Notes.)
R e p le v in . Party may recover possession of personal property within
four years after cause of action accrued by filing petition and affidavit o f
himself, agent or attorney, giving a description of the property, stating
the facts connected with the ownership, and that he is entitled to the
plaintiff must give bond in double the appraised value, conditioned that
he will duly prosecute the action and pay all costs and damages that may
' be awarded against him, and return the property or its reasonable value
to the defendant in case judgment for a return be rendered.
R e v e n u e . (See Taxes.)
I
S ales. (See Conditional Sales.) Merchant cannot sell in bulk with­
out notice to creditors.
S ta tu te o f L im ita tio n s . (See Limitations.)
S ta y . (See Executions, Judgments, Mortgages.)
S uits. (See Actions.)
S u m m on s. (See Actions, Attachments, Divorce, Service.)
T a x e s. Taxes oh real property are a lien thereon" from October 1, o f
year of levy. Taxes on personal property are a lien thereon from Novem­
' ber 1, of year of levy. Tax deed may issue after two years from date of sale
certificate. Inheritance tax runs from 1 per cent upward. For all real
I estate taxes delinquent one year or more, the county may sell the prop­
erty by action in court.
T ru st D e e d s are seldom used and are treated as mortgages.
W ills . (See Decedents.) Every person o f full age and sound mind
may dispose of his property by will, which must be signed by the testator,
or under his express direction, by some one in his presence and sub­
scribed in his presence and in the presence of each other, at his request,
by two or more competent witnesses. Nuncupative wills are valid when
proved by the oath of three witnesses present at the making thereof, and
when the testator at the time asked the persons to bear witness that such
was his will, or words of like effect, lio will shall be effectual to pass
title to any property unless probated. Foreign wills duly proved and
allowed in any State or foreign country may be probated in this State in
any county wherein the testator shall have real or personal property, on
which the will shall operate.
W itn e s se s. (See Evidence.)

BANKING AND COMMERCIAL LAWS—NEVADA, N E W HAMPSHIRE.

SYNOPSIS OP THE LAWS OF NEVADA
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by T orreyson & Summerfield, Attorneys at
Law, Carson City and Reno. (See Card in Attormys^lZu
A c k n o w le d g m e n ts may be taken within the State by a judge or clerk
rtQ
h? vl? g a 8eA or fey a justice of the peace or notary p u b l i c H
fey a
of the peace in any county in the State other than the
county m which the land is situate, a certificate of the county clerk is
necessary, showing he was an acting justice when the acknowledgment was taken. If without the State, but within the United States by
clerk of a court having a seal, or some notary public or justheV°r by aily c° mm.1j lsioner appointed by the governor of
taton thte/°;r 1f-at puI pA 8e’ Pr°vided, that when the acknowledgment is
parHfipotla a f l i P j ° I th.e peace>tke 8ame shah he accompanied by the
certificate of the clerk of a court of record of the county, having a seal
f ®to thr^
cfearacte^f the justice and the authenticity of hhs signa­
ture. If without the United States, by some judge or clerk of any court
f f l H S ™ kingdom or empire haying a seal, or by any n o ? S
t.llerein; ° r fey an.y minister, commissioner, or consul o f the United
States, appointed to reside therein.
A c tio n s . (See Limitations.)
A ffid a v its. Affidavits taken out of this State to be used before anv
court or officer in this State must be taken before a notary public a
commissioner appointed by the governor of this State, or a judge of a
having a seal attested by the clerk. I f in a foreign country such
affidavits shaii be taken before an embassador, minister, or consul of the
United States, or judge of a court in such foreign country having a seal
A p p e a ls . Actions tried in justice court may be appealed to district
courte, wnere tn&l is had de novo and can proceed no farther. Actions in
which the district courts have original jurisdiction may be appealed to the
supreme court.
lu me
A r b it r a t io n . Provision is made by law for the settlement of dis­
pute® by arbitration; the award of the arbitrators to be filed with the
clerk o f the district court and docketed the same as a judgment in civil
action.
’
A r r e s t. (See Attachment.)
A ssig n m e n ts a n d I n s o lv e n cy . Except as affected by the national
bankruptcy act of 1898, the following statute respecting assignment is in
force; Insolvent debtors may be discharged from their debts by comply
mg with provisions of insolvent laws. An assignment of insolvent debtor
not m compliance with insolvent laws, is void as to creditors.
’
A t t a c h m e n t . Writ of attachment may be issued with summons,
or at &ny time afterward, on affidavit and bond. In an action upon a contract for the direct payment of money, made, or by the terms thereof
payable, m this State, which is not secured by mortgage, lien or pledge
upon real or personal property, situated or being in the State; if so secured
when such security has been rendered nugatory by the act of the de­
fendant; or in an action upon a contract against a defendant not residI M iS ttu® State. In an action by a resident of the State for the recovery
of the value of property, where such property has been converted by a
defendant without the consent of the owner. Where the defendant has
absconded, or is about to abscond, with intent to defraud his creditors.
Where the defendant conceals himself so that service of summons can
not be made upon him. Where a defendant is about to remove his prop­
erty, or any part thereof, beyond the jurisdiction o f the court with the
intent to defraud his creditors. Where a defendant is about to convert
his property, or any part thereof, into money with intent to place it be­
yond the reach of his creditors. Where a defendant has assigned, re­
moved, disposed of, or is about to dispose of his property, or any part
thereof, with the intent to defraud his creditors. Where a defendant
has fraudulently or criminally contracted a debt or incurred the obliga­
tion for which suit has been commenced. Garnishee process may be had
m aid of attachment. A fraudulent or absconding debtor, or one who
conceals his property, or removes or disposes of it with intent to defraud
his creditors, may be arrested on affidavit of the fact made; surety in not
less than $500 being given by the plaintiff. The clerk of the court shall
issue the writ of attachment upon receiving and filing an affidavit by or
on behalf of the plaintiff, showing the nature o f the plaintiff’s claim
that same is just, the amount which the affiant believes the plaintiff is
entitled to recover, and the existence of any one o f the grounds for an at­
tachment above enumerated.
B a n k s. There are no provisions in the constitution or laws o f the
State, and no examination is provided lor. There are no requirements
to make public statements showing the condition o f banks, and none
are made. Nor are the banks obliged to make returns to any official.
Bankers may do as they please in Nevada. Integrity in the banker is
the only safeguard.
C o n v e y a n ce s . The husband has the entire management and control
oT the community property, with the like absolute power o f disposition
thereof, except as hereinafter provided, as of his own separate estate;
provided, that no deed of conveyance, or mortgage, of a homestead as
now defined by law, regardless of whether a declaration thereof has been
filed or not, shall be valid for any purpose whatever, unless both the hus­
band and wife execute and acknowledge the same as now provided by
law for the conveyance of real estate.
C ou rts. Terms and Jurisdiction. District courts have original juris­
diction m all cases in equity, also in law, when the title or possession of
land or mining claims may be involved, or legality of any tax, etc., also in
actions to foreclose mechanics’ lien; and in all cases in which the demand
exclusive of interest, or the value of the property in controversy exceeds
$300, also in ali cases relating to estates of deceased persons, and per­
sons and estates o f minors, insane persons, etc. Justice’s jurisdiction,
$300, exclusive of interest, and concurrent jurisdiction with district
courts in foreclosure of mortgages and liens, not exceeding $300, ex­
clusive of interest.
D ays o f G ra ce. »Three days grace is allowed on notes and bills of
exchange, except when otherwise stated in the contract.
D o w e r is not recognized in this State.


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1205

E x e c u tio n s . Stay o f Execution; Judgments. The laws of Nevada
on these points are similar to those of California Psee ante1 excent
is made of real estate, 18per ¡ ¡ i must be paFd
in addition to purchase money.
p
Homestead, $5,000; $50 of the earnings of the debtor,
if earned thirty days preceding, if it is made to appear necessary for
toolsU?mnriimf *16 d?bt0r’ o r fej8family; personal and miniffg property*
tools, implements, etc., exempt same as in California [whichseel. *
G a rn is h m e n t. (See Attachment.)
Sunday New Year’s Day, Washington’s Birthday, Memoffivta^annd°fliwi 0f Ju y’ °^.t0.ber 3l8t (Nevada admission dayjfmianksa11 days on which a general election is held, are nonAlso ArboiSdav
,egf 1holi.day8 and generally observed as such.
" 5 bclf da7 fixed by proclamation of governor one month before
sucfe date, and is only a holiday for public schools. Bills of
checks’ Promissory notes, and other negotiable instruments
falling due upon any holiday are payable the day previous.
Husband and W ife. (See Married Women.)
„
The legal rate is 7 per cent per annum, but parties mav
contract m writing for the payment of any other rate. After a judgment
i£+SU#b contract, only the original claim shall draw interest and the
rate of interest must be mentioned in the judgment.
1
n r n n W
Suits. Open or store account and contract not in
writing, four years, upon contract or instrument of writing, six vearsrecovery of mining claims, two years; real a ction s-th e plrson pros*
cuting or defending the same must show that he was seized or possessed
? s ibe+1?rem?8*f wltbln dve years before the commencement or defense of
the action, judgment, or decree of the district court—six years• o f the
justices court-five years Revivor: Acknowledgment or new momise
in writing. Judgments become a lien upon real property for two years.
™ 5 ? rried
.AP Property of the wife, owned by her before
marriage, and that acquired afterward by gift, bequest, devise or descent
her separate property. In Nevada, under the 8tatuteofl873 thew ffe
has absolute power over her separate property, and may dispose of the
same without the consent of her husband. All other property acquired
during coverture by husband or wife, common property, but controlled
H
i l l
Upon a dissolution of the community by the death of the
husband, the homestead set apart by the husband and wife or either of
H
Soes to the wife and minor children, and if there S e no minor chil­
dren, to the widow. The husband may dispose of one-half of the com­
mon property by will, exclusive of the homestead. The other half
and debts of the Ifiu^band. g° 6S t0 ^

Wife’ 8UbjeCt t0 ^ministration

tbe m^rto aS5 ]8 recorded in the county where the mortgagor and
mortgagee reside. Recording is equivalent to possession, except that
crop? andi °,ther personal Property may be mortgaged by the
execution, acknowledgment, and recording of a mortgage instrument
without such possession Mortgages of real estate can only be fore­
closed by action for foreclosure.
N otes and B ills of Exchange. Commercial paper includes
promises to pay to order, or bearer, without conditions, for a sum certam and at a time certain. No requirement respecting place of payment
but, if place of payment is named, demand should be made before pro­
test at place named. Protest and notice will hold the indorser, and the
general statute of limitation, six years, and on open account, four vears
is the limitation of the right of action. Fifteen per cent damages are
allowed on domestic, and twenty per cent on foreign bills protested
Grace is not allowed on sight drafts.
g
P otesteaP ro b a te . All claims against estates of deceased persons must be
filed within three months after the first publication of the notice of
®SPn?i?t™eQt ,of tbe executor or administrator. Estates not exceeding
$2,000 m value, in the discretion of the judge, may be summarily
administered, and in cases of summary administration all regular pro­
ceedings and notices are dispensed with, except the notice of the appointment of the executor or administrator. Creditors of such an estate must
file their claims within forty days.
Suits. Practice is under a code, and there is but one form of action,
known as a civil action, and commenced by filing complaint with the
clerk of the court and the issuance of a summons. Service on non-resi­
dents may be had by publication.
T axes are a lien upon the property assessed and the real estate of the
owner thereof from the first Monday of March in each year Suits for
delinquent taxes may be commenced by direction of the county commis­
sioners, and there is redemption of real estate sold at tax sale in the
same manner as realty sold under ordinary execution.

SYNOPSIS OF THE LAWS OF NEW
HAMPSHIRE
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by H e n r y A. C u t t e r , Attorney at Law, Nashua.
(See Card in Attorneys' List.)
K ^ ?^iD<iWile d s “ e^ t8 of deeds or other conveyances of real estate must
De made before a justice, notary public or commissioner, or in foreign
countries before a minister or consul of the United States. The sig­
nature of the grantor must be attested by two witnesses.
A c tio n s . The common law prevails as to procedure. Non-residents
can institute suit, a resident becoming responsible for costs by indorsing
toe writ. Transitory action may be brought in the county where one of
the parties reside. I f both are non-residents the action may be brought
m any county.
J
. . -A d m in istra tio n o f E states. Administration shall be granted in
the following order of precedence: To the executor named; to the widow
°# fi117., ihe next ° f kin' ? r t0 8uch person as they shall nominate; to one
?£■ i devisees or to a creditor; to such other person as the judge shall
trunk fit. A non-resident shall not be appointed unless urgent necessitv
demands An ample bond with resident sureties shall be filed. No suit
shall be brought against the administrator within the first year o f his

1206

BANKING AND COMMERCIAL LA W S—NEW HAMPSHIRE-

administration. Claims shall be presented within one year after his
appointment, and no action can be brought after two years. Actions
are not maintainable against an administrator of an estate, after a decree
o f insolvency. .Estates may be administered in the insolvent course, and
theq a commissioner shall be appointed to examine and allow claims.
Preferred claims, to be settled in full are: Expenses of administration,
widow’ s allowance, charges of burial, and taxes. Claims for the last
sickness shall be paid in full if there remains anything after paying the
preferred claims. (See Arbitration.)
A ffid a v its. Affidavits are not admissible in evidence, being ex parte,
but motions are heard upon affidavits presented to the court. May be made
before an officer authorized to administer oaths. (See Attachment.)
A lie n s . They are not entitled to vote. An alien may purchase, hold
and convey real estate, and it will descend in the same manner as if he
were a native born citizen. When the wife of an alien has resided In the
State six months, separate from her husband, she acquires all the rights
o f the wife of a native-born citizen.
A rre st. No female can be arrested in any action founded upon a con­
tract or upon a conditional sale o f clothing; nor can a voter on election
day, or a defendant in a real action. The sheriff is exempt from arrest.
(See Attachments.)
A s s ig n m e n ts a n d I n s o lv e n c y . Assignments for benefit of
creditors to be filed in the probate court o f the county in which debtor
resides. The provisions of the law upon this subject are suspended by
the United States bankrupt law.
A tt a c h m e n t s or all real and personal property may be made on the
original writ, and constitute a valid lien on the property for thirty days
after judgment, within which period the execution must be levied to
preserve and perfect the lien. All attachments take precedence in order
o f priority, except in case o f liens of builders, contractors, etc., when
they take precedence in the order of priority of the lien. Trustee process
(analogous to garnishment in other States) may be used to reach money
or credits o f the defendant in the hands of another. Save as against
claims for necessaries the wages of the defendant up to $20 are exempt
from such process. In actions on contracts where debt exceeds $13.33,
defendant may be arrested on affidavit of plaintiff that he (defendant) has
concealed his property or is about to leave the State to avoid payment
o f his debts. (See Garnishment.)
B a n k . Banks can be chartered only by a special act of the legislature.
Building and loan associations may be organized as voluntary associations.
Once every year a thorough examination shall be made into the condition
and management o f every bank, building and loan association, and trust
company in the State by one of the three bank commissioners. The
commissioners shall on or before the 1st day of October, annually, file
their report with the secretary of state. They shall give in their report
a detailed statement of all the items of expense of each institution, with
the names of the treasurer and clerks, the salary o f each, with the kind
and amount of stocks and bonds held by each, with the par value thereof,
and the cost and the market value at the date of examination. The
cashiers of every State bank, and every association or partnership formed
for the purpose of transacting such business as is usually transacted by
banks, shall, on the first Monday o f March, June, September, and Decem­
ber in each year, make a statement of its condition on said day, specify­
ing in separate columns the capital stock actually paid in; debts due the
bank secured by pledge of its stock; value of real estate belonging to the
. bank; amount of debts due from directors; amount o f specie in the
vaults; amount o f bills of other banks on hand; amount of deposits in
the bank; amount on deposit in other banks for the redemption of its
bills; and the amount of bills of the bank then in circulation; which
statement shall be signed and sworn to by the cashier, and returned to the
secretary of State. The trustees of savings banks shall make a thorough
examination of the affairs of their respective banks once in every six
months, and a report of such examination, signed by a committee of the
trustees, shall be returned to the bank commissioners, and a copy of the
report published in a newspaper published in the place where such bank
is established; or, if there be no newspaper in such place, then in a news­
paper at the nearest place.
B ills o f E x c h a n g e . (See Notes, and Bills o f Exchange.)
C h a tte l M o rtg a g e s. (See Mortgages.)
C o lla t e r a l. There have been no statutory enactments on this subject.
Pledgee of stock is not liable as a stockholder, but the general owner is.
C o n v e y a n ce s . Every deed and lease, for more than seven years,
shall be signed, sealed, attested by two or more witnesses, acknowledged
before a justice of the peace, notary public, or commissioner, and recorded
in the registry o f the county wherein the real estate is situated. Every
power of attorney to convey real estate must be executed with the same
formalities. Conditional conveyances must state the sum to be secured,
or the thing to be performed. Administrators, guardians, and trustees
can convey only by virtue o f a license from the probate court. Sheriff’s
deeds shall give full particulars as to the action, and shall covenant that
he has observed all the reauirements of law.
C o r p o r a tio n s . Corporations can be chartered by the legislature.
Voluntary corporations can be formed for any purpose except banking, life
insurance, railroading or trading-stamp business. Five persons may asso­
ciate themselves together under written articles of agreement, which arti­
cles shall set forth the corporate name, its object, place of business, and
amount of capital, which may be anywhere from $1,000 to $5,000,000, with
the par value of the*shares at not less than $25 or more than $500. This
agree ment shall be recorded in the office of the secretary o f state, and in the
office of the clerk of the town where the business is to be carried on.
Every corporation which shall not carry on its business in the State,
obtaining a charter here, shall pay a charter fee as follows: $10 on a
capital of less than $25,000; $25 on a capital between $25.000 and $100,000;
$50 on a capital between $100,000 and $500,000; $100 on a capital
between $500,000 and $1,000,000; and $200 where it exceeds $1,000,000.
The said charter fee shall be paid when the articles are recorded. The
clerk o f every corporation shall be and continue a resident of the State.
And at least one of the directors shall be an actual resident o f the State, if
the corporation has any stockholders resident in the State. No corporation
shall sell or dispose of any of its stock at a price less than the par thereof.
A note is not payment therefor. Cumulative voting is not permitted.
Stockholders in all corporations, except banks and railroads, shall be
liable for all the debts of the company until the capital is fully paid,
and a certificate under the oath o f the treasurer and a majority of the
directors shall have been recorded with the town clerk. Every corpora­
tion, except banks, railroads, and insurance companies, shall annually,
in May, return a sworn report, signed by the treasurer and a majority of
the directors, of its assets, liabilities, and any assessments, which report,
shall be recorded in the office of the secretary of state. A failure to make
such return renders the officers personally liable for all the company
debts. .


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C ourts. The superior court has original jurisdiction over all causes.
The supreme court decides questions of law upon bills of exception,,
transferred from the superior court, and it holds its sessions every month,
except July and August. Probate courts have jurisdiction over estates
of deceased persons, insolvent estates, minors, insane persons, adoptions,
change of names, trustees, and partition of real estate. Police courts and
Justices of the peace have concurrent jurisdiction with the superior court
up to $100 when the title to real estate is not involved, and can render
judgment upon confession up to $200. The terms of the superior court
shall be held in each year at the times and places following: For the
county of Rockingham, at Exeter, on the third Tuesday of January and
the third Tuesday of April; and at Portsmouth on the third Tuesday of
October. For the county of Strafford, at Dover, on the second Tuesday
of February, and the third Tuesday of September. For the county.of
Belknap, at Laconia, on the first Tuesday of March and the first Tuesday
of November. For the county of Carroll, at Ossipee, on the second Tues­
day of June, and the second Tuesday of December. For the county o f
Merrimack, at Concord, on the first Tuesday o f April and the first Tues­
day of October. For the county of Hillsborough, at Manchester, on the first.
Tuesday of January, and the first Tuesday of May, and atNashua the third
Tuesday of September. For the county of Cheshire, at Keene, on the
first Tuesday o f April and the first Tuesday of October. For the county
of Sullivan, at Newport, on the second Tuesday of May and the second
Tuesday of November. For the county of Coos, at Lancaster, on the third
Tuesday of April; at Colebrook, on the first Tuesday of September, and
at Berlin, on the first Tuesday of December. For the county of Grafton,
at Plymouth, on the second Tuesday of May and the second Tuesday o f
November; at Haverhill, on the second Tuesday of March and the second
Tuesday of September: at Lebanon, on the third Tuesday of April and the
third Tuesday o f October.
D ay » o f G r a c e . None except on sight drafts.
D e p o s itio n s . The party proposing to take depositions shall give the
opposite party a four days’ notice, of which the following is a form:
“ To A. B. C., of etc., o r ............. att’y of record: Depositions will
be taken at the office o f ............. i n ............ . in the County o f .......... .,
and State of .......... , on the ... . day of . . . ____ ,19 , at . . . . o’clock in
t h e ............noon, In which action ............ is plff. and .......... is deft.,
to be heard and tried at th e ............Court to be holden at ... . . . . , in the
County of .......... , on the . . . . day o f .............. 19... Dated a t ............
t h is ___day o f ............... 19...
................................... . Justice of the Peace.”
One extra day’s notice to be given, up to twenty days, for each twenty
additional miles. They are taken before a justice of the peace or a com­
missioner. They can only be taken by written questions and answers
proposed by counsel and administered by the magistrate. Objections
are minuted on the deposition by the magistrate, but he does not pass
upon the validity of such objections. Depositions shall be signed by the
deponent, and he shall be sworn to testify to the truth, the whole truth,
and nothing but the truth. They must be enclosed in an envelope and
sealed up by the magistrate, with the following endorsement:
“ To the Supreme Court.
Enclosed is the deposition of----------------------to be used in the action
----------- vs.--------------------of------- 1
Sealed up by me--------------------------------Justice of the Peace.”
They should then be mailed to the clerk of the court where they are to
be used. No deposition can be used in a jury trial unless taken before
the Tuesday next preceding the Tuesday on which the term commenced.
A copy of the notice with the affidavit of service must be annexed tothe deposition. The following is a form for the caption of the deposition r
“ State o f........................I ..
County o f ......................) s '
Personally appeared before me, a Justice of the Peace within and for said
County, the within named .................... on the — day o f ............ . 19..,
a t __ o’ clock in the . .........noon, at the office o f ............ , .............Street,
i n ............. in said County, and made oath that the annexed deposition
by him subscribed contains the truth, the whole truth, and nothing but
the trath relative to the cause for which it was taken. Said deposition
is taken at the request of ............................... of ................................. ,
to be used in t h e ...................Court, in an action now pending (or to be
entered) in said Court, wherein of, etc. is plff. and of, etc. is deft. The
taking of the said deposition was begun at . . . . o'clock in t h e ........... noon
of said day, and was continued until finished. The s a id ............was (not>
present and did (not) object.
Dated at sa id ...................this . . . . day o f ............... 19...
»
......................... . Justice of the Peace.”
D e s c e n t o f P r o p e r ty . The real estate subject to dower or curtesy
and homestead shall descend in equal shares as follows: 1. To the chil­
dren and to the legal representatives of such of them as are dead. 2. I f
there be no issue, to the father and mother in equal shares, if both are
living, and to the father or motuer, if one of them is dead. 3. If there
be no issue or father or mother, in equal shares to the brothers and sisters
or their representatives. 4. To the next of kin in equal shares. If a person
dies under age, his estate, derived by descent or devise from his father or
mother, shall descend to his brothers and sisters, or their representatives,
if any, to the exclusion of the other parent. No representation allowed
beyond the degree of brothers’ and sisters’ grandchildren. The personal
estate shall be distributed as follows: 1. To the widow, her share according
to law. 2. To the same persons who would take as in the case of realty.
The widow is entitled, in addition to her dower and homestead, to one-third
or one-half of the personalty, as she does or does not leave issue sur­
viving, and she holds the same interest in the real estate, by releasing
her dower and homestead, and by waiving any provision in the will in
her favor. In case the real estate (provided no issue survives) does
not exceed $1,500 in value, the survivor, husband or wife, takes the
whole thereof. The same provision exists as to distribution of the per­
sonalty. As to any balance above $1,500, the distribution is made accord­
ing to the other provisions of the law, as above set forth. A surviving
husband has the same rights in his wife’s estate that a wife would have
in her husband’s estate. (See Bower.)
D iv o r ce . The jurisdiction of the court shall be confined to actions
commenced: 1. Where both parties were domiciled within the State
when the action commenced. 2. Where the plaintiff was so domiciled,
and the defendant was served personally with process within the State.
8. Where one of the parties was so domiciled, and one or the other
resided within the State for one year next preceding the beginning of the
action.
D o w e r . A widow is entitled to dower in the real estate of which her
husband died seized, excepting in land not under cultivation or in a wood
lot not used in connection with a farm. The dower may be assigned by

I

BANKING AND COMMERCIAL LAW S—N E W JERSEY.
rentfanddDmfitsdnntfidHth®wi-dow i*as an ^divided net third part o f the
is ansigned. She maybe endowed with so

to m e 1 a » a U ? ™ ? S a 0o U r ^ l 5 " S 4 “ WlU produce * J“ r1’
m 'm m m m w m
excladed B
testifying because of
of inslne a n d ^ V o ^ h i^ f
W executor’ administrator, or guardian
deceased ’ n r „ r W
1 f W i testimony occurred during the life of the
trttor or
8 msanlty, imles. the executor, adminis°F guardian of the insane person elects to testify: or. when it is
clearly shown to the court that injustice may be done by the exclusion of
the testimony of such person. Husband and wife are competent witnesses
for or against each other, except as to matters, which in tte oninio^ of the
B | lead to the violation of marital confidence. In criminal pro­
ceedings, respondent may testify in his own behalf, if he elects but ™t
otherwise Conviction of an infamous crime does not bar the partv from
givrng evidence but bears upon his credibility. The rules of common law
govern generally the admissibility of evidence.
common law
m?y be taken twenty-four hours after judgment and are
tDa
ef° re Justices and police courts in sixty days; before’superior
court, at the next trial term of court. Writ of possession issued sStv
days+after judgment A review may be granted by the court when
injustice appears to have been done through accident, mistake or
W ithi^ on eV e»eal property taken und#r execution may be redeemed
H»^l?iem p ^,5,1KS* H ° n tead Km! vatoe of $500; necessary apparel and
bedding and household furniture to the value of $100; bibles and school
n®™ ^SC m i he famll/> library to the value of $300; one cow, one W
and one pig, and pork of same when slaughtered; tools of occupation to
the value of $100; six sheep and their fleeces, one cooking stove and its
furniture, provisions and fuel to the value of $50, and one sewing
SrSSpS iv’ f^nei yokf of
a horse, when required for actual usef
n o t i c e eding four taS,eedlI,g $5° ; ° ne P®W’ 0ne lot in a cemetery, and hay
F r a u d . Aside from criminal frauds, the superior court, in the exer­
cise ol its equity functions, has jurisdiction over frauds.
G a rn is h m e n t. Known to our law as trusteeing. Any personal
action except trespass, defamation of character, and malicious prosecu“ ay ^ begun by trustee process. Trustees are not chargeable upon
default. Wages earned after the service of the writ are not Held by the
process. Twenty dollars in wages are exempt as against all claims
except for necessaries.
H o lid a y s . (See table, page 13.)
H u sb a n d a n d W if e . They may make antenuptial agreements
which can be m lieu of dower, homestead, and distributive share. (See
W ills) ^ iens' descent o f Property, Lower, Divorce, Married Women, and
I n t e r e s t. At the rate of 6 per cent per annum. If any person u-pon
any contract, receives interest at a higher rate than 6 per cent, he forfeits
three times the excess paid, to the person aggrieved and suing thereforbut no contract is invalidated by reason of any stipulation for usurious
interest; the money actually advanced may be recovered with legal
interest. Interest upon all judgments is at the rate o f 6 per cent per
aBPBBB Interest upon unpaid taxes is at the rate of 10 per cent after
the first day of December following their assessment, until sale of property
taxed, and 13 per cent thereafter until time of redemption. Upon cur­
rent accounts interest commences from date of demand for payment
unless controlled by the custom of trade, which is a question of fact
to be determined by a trial thereof.
J u d g m e n t s are not a lien upon real estate, except when attachment
is made on the original process, when a lien exists for thirty days after
judgment. Six per cent annual interest allowed on judgments In
actions on mortgages the judgment is conditional, that if the mortgagor
pay the amount of the judgment within two months, the judgment shall
be void. Judgments are rendered on the last day of the term of the
court where the action has been disposed of.
L ien s. Besides the common law lien the legislature has provided for a
lien upon all the effects and baggage of a boarder; also lien for the pasture
ol horses, cattle, sheep, or other domestic animals. A person who may
have performed labor or furnished material toward building, repairing
fitting or furnishing a vessel shall have a lien thereon for the space of four
days-after completion. A person who may have furnished a monument or
tablet, or curbing, shall have a lien thereon. And a person having a lien
on personal property, when no time is limited for the payment o f the debt
may S6ll tlie same at auction, fourteen da vs1notice of tlie sale being required, if the value o f the property exceeds $100, and a sworn return of
said sale shall be recorded in the office of the town clerk.
lim i t a t i o n s o f Suits. Accounts and simple promissory notes six
years alter maturity; judgments, sealed instruments, and notes secured
by mortgage, twenty years. Time of debtor’s absence from the State
is excluded. Verbal acknowledgment and promise to pay is sufficient
to revive the debt. Action against administrators limited to two years.
M a r rie d W o m e n retain all property owned by them before marriage,
or acquired afterward in any way except through property of the hus­
band, to their sole and separate use, as if unmarried. All their con­
tracts m relation to such property are valid and binding, and all their
other contracts are binding, except those as sureties or guarantors for
their husbands, or for and in behalf of their husbands. Upon the death
of wife, the husband is entitled to substantially the same share o f her
estate as she would be o f his estate in case o f his death; (See Descent of
Property.) They are liable for debts contracted while single, and their
property may be attached to pay them. They are also liable for their
torts before marriage in relation to tbeir separate property. The husband
is not liable for the wife’s antenuptial debts, and cannot convey his
improved real estate so as to bar his wife’s right of dower and home­
stead without her consent. Married women of the age of twenty-one
years may dipose o f their property by will, but not to affect husband’s
rights, nor can they convey so as to deprive the husband of his right.
M o rtg a g e s. Peal Estate. A conditional conveyance shall be ineffect­
ual unless the sum to be paid, or the thing to be done, is stated in the
conveyance. All mortgages shall be signed in the presence of two wit­
nesses and acknowledged before a justice of the peace or a notary public.
Mortgages may be foreclosed: 1. By entry under process o f law into
the premises and continued actual possession for one year. 3. By
peaceable entry in the presence of two witnesses and continued actual
possession for one year. 8. By the mortgagee in possession taking for­
mal possession under the second method. 4. By a sale under the provisions
of a power of sale mortgage. Mortgages o f personal property, to be
effectual, the mortgagor and mortgagee must take and subscribe the fol­
lowing oath: “ We severally swear that the foregoing mortgage is made
for the purpose o f securing the debt specified in the condition thereof and
for no other purpose whatever, and that said debt was not created for the


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Federal Reserve Bank of St. Louis

1207

purpose of enablmg the mortgagor to execute the said mortgage, but is a
just debt, honestly due and owing from the mortgagor to the mortgagee.”
The mortgage must be recorded in the office of the clerk of the town where
the mortgagor resides, and in case of the non-resideDce of the mortgagor,
it must be recorded in the office of the clerk of the town where the
property is situated.
N otes a n d B ills o f E x ch a n g e . No particular form of words nec­
essary to constitute a negotiable promissory note. The words “ value
received not essential, Bills of exchange must be absolute as to amountevent, fund, and person. No requirements as to place of payment. De­
mand notes must be protested within sixty days from day of their
indorsement to hold indorsers. All paper, maturing on Sunday or any
legal holiday, is payable on the next succeeding day, not being Sunday
and must be so noted.
&
Jr
r o w e r o i A tt o r n e y . (See Conveyances.)
P r o b a te L a w . The probate court is a county court, and holds numer­
ous sessions m various places. Proceedings are begun by petition and cita­
to*11 issued. The citations are served twelve days before the return day.
I he court may proceed without notice in the following cases: In the
probate of wills in the common form; in the appointment of an executor
nominated m a will; in the appointment of appraisers of an estate; in
licensing the sale of real estate under $300 in value, or where the heirs
consent m writing; in appointing guardians and commissioners; in
granting allowances; in assigning dower and homestead; in making
orders for suits upon bonds; in changing names; in appointing trus­
tees nominated in a will (See Administration o f Estates, Courts,
Descent o f Property, Dower, Married Women, and Wills.)
P ro te st. Notaries public are the proper protesting officers. Notice
oi the non-payment or the non-acceptance upon residents by mail is suffi­
cient. (See Notes and Bills.)
,
R e p le v in may be brought to recover goods or chattels in specie. The
question of right of possession being in issue, the plaintiff shall give
bond to the sheriff in a sum not less than double the value of the property
iS ite r®PIevied, to pay such damages as may be awarded against him.
Ir the defendant shall prevail he shall have judgment for the return of
the goods, and other damages, or for their value.
.7

.— Wi

w il d

n id i a s»«»»

ment (Apni l of each year). One year from the day of sale is allowed
m which to redeem land sold for taxes, costs of sale and interest at the
rate of 13 per cent per annum being added. A succession or inheritance
tax ol 5 per cent upon inheritances by collateral heirs, is collected through
the Probate Courts.
W ills . Every person, including married women, of the age of twentyone years, of sane mind, may dispose of their property by will. No will
is effectual to pass property unless it is in writing, signed by the testa­
tor or by some person in his presence and by his express direction, and
attested m his presence by three or more credible witnesses. Can be
m type writing. A seal is not necessary. Foreign wills valid in the
State where executed may be allowed here. Every child or grandchild,
or every child born after the decease of the testator, shall be entitled to
his distributive share in the estate, if not named in the will. A foreign
will is proved here by the production of an authenticated copy thereof,
together with an authenticated copy of the probate thereof.

SYNOPSIS OF THE LAWS OF NEW JERSEY
RELATING TO

BANKING AND COMMERCIAL USAGES.
Prepared and Revised by J ebome D. Gedney , Counselor at Law,
East Orange. (See Card in Attorneys' List,)
A c k n o w le d g m e n ts of deeds are made within the State before the
chancellor or a justice of the supreme court, a master in chancery,
attorney at law, judge of the court of common pleas, commissioner o f
deeds, surrogate of county, or a deputy surrogate, or register of deeds,
county clerk, or deputy county clerk during his continuance in office;
without the State, before a justice of the supreme court of the United
States, circuit or a district judge of the same, or a judge or justice o f
the supreme or superior court or chancellor of the State, district, or
territory, or before any mayor or chief magistrate of any city, borough,
or corporation, duly certified under the seal of such city, borough, or cor­
poration, or before a judge of the court of common pleas or county court
of such State, district, or territory, or commissioner for New Jersey, or
by a master in chancery, or attorney at law of this State, or by any officer
authorized at the time of such proof or acknowledgment, by the laws o f
the State wherein the same shall be made or taken, to take the acknowl­
edgment of deeds of lands lying and being in such State. In case
the acknowledgment is made before a mayor or chief magistrate, the
certificate must be attested by the seal of the city; if before a judge
of the court o f common pleas or county court, or other officer, it must
be attested by seal of such court, and certified by the clerk of the court.
If before an officer not enumerated but authorized as above stated, it
must be certified that he is such officer and authorized, at the time o f
taking such acknowledgment, to take acknowledgments and proofs o f
deeds or conveyances for lands, tenements, and hereditaments in the
State in which tne acknowledgment was taken. In foreign countries
acknowledgment» or proof may be made before a master in chancery,
any court of law, notary public, mayor, or chief magistrate, or any
ambassador, consul, consular agent, or other representative of the
United States.
A c tio n s which arise from breach of contract are entitled “ upon
contract” ; for damages to person or property “ in tort.” The former
covers the common law actions, assumpsit, covenant, debt; the latter,
detinue, trespass, trespass on the case, trover. The actions of replevin
and ejectment are not within the purview of the rule and are to be
entitled as such.
A d m in is tr a tio n o f E sta tes. Wills are proved before the ordi­
nary of the State, or the surrogate of the county, and letters testamentaryare granted. In case there is no will, letters of administration are granted.
Should there be a contest of the will or dispute as to the right of
administration, the orphans’ court has power to act. This court is also
the proper tribunal for all disputes in matters of estates, is the auditor
of all accounts, and has varied powers in matters regarding estates, such
as the right to appoint trustees under a arill, partition where minors
are interested in lands, etc.

1208

BANKING AND COMMERCIAL LAW S—N E W JERSEY.

Affidavits in the State may he taken before the chancellor, judge of
court o f record, master in chancery, Attorneys at Law of New Jersey,
justice o f the peace, mayor, recorder, or alderman of any city or borough,
supreme court commissioner, city clerk, clerk or surrogate of any county,
clerk of a'court of record, notary public, commissioner pf deeds.
A lien s. No restrictions as to holding property. Foreign corporations,
other than municipal, may purchase, use, and convey real estate in New
Jersey. (P. L. 1903, Chapter 22.)
A p p eals. From justice’ s court to court o f common pleas of county.
From district court to supreme court on question o f law or evidence.
From common pleas or circuit cotfrt to supreme court. From circuit or
supreme court to court of errors and appeals. Except in first two cases
chiefly by writ o f error. From orphans’ court to prerogative court. From
prerogative court or court pf chancery to court o f errors and appeals.
Arbitration,-? may by the submission be made a rule o f court, con­
cluding the parties, by the award.
A rre sts. In civil actions, upon contract, a debtor may be arrested
under the following circumstances: 1. When he is about to remove any
o f his property out o f the jurisdiction of the court in which an action is
about to be commenced with intent to defraud creditors. 2. When the
defendant has property or rights in action which he fraudulently con­
ceals. 3. When he has assigned, removed, or disposed of, or is about to
assign, remove, or dispose of, any o f his property with intent to defraud
creditors. 4. When he fraudulently contracted the debt in question. No
capias will issue except by order of court, judge, or court commissioner.
Assignm ents and Insolvency. The insolvent laws provide for the
discharge of a person under arrest for debt or damages on his delivering
up all his real and personal property to his creditors. Assignments by
debtors for the benefit o f creditors must be without preference, and all
others are void. Debtor must annex sworn inventory. Wages of serv­
ants, clerks, and laborers up to $300 each are preferred claims. Assignee
must file list of creditors at the end o f three months, and make divi­
dends at the next term of court. Creditor not presenting claim does not
share in the dividend, but retains his right of action against the debtor.
Corporation may make assignment for the benefit of its creditors.
A ttach m en t. A creditor may attach the property of a non resident
or absconding debtor by making oath to the fact, and to the amount oi
his claim, before any officer authorized to administer oaths or affirma­
tions. Attachments are for the benefit o f all applying creditors, but the
plaintiff or plaintiffs are to be first paid the amounts due him or them
before division with other creditors. Debts not due may be proved
under any attachment issued, and receive their pro rata dividend. No
attachment can issue against the members of a copartnership, where
one o f them resides in the State, nor against wages or personal property
of non-resident when said property is exempt by laws of the State where
-debtor resides, at the suit of a non-resident creditor. Garnishment can
be effected only in attachment cases. Where capias ad respondendum
will issue in an action upon, contract, an attachment will lie; awarded
by court or a judge thereof, or supreme court commissioner upon affidavit
filed as required to obtain capias ad respondendum. Attachment will
issue against female; corporation or organization as if such defendant
were liable to arrest. (In actions of toit attachment will issue if sum­
mons can be served.) (See Arresi.) An action may be commenced by
attachment upon proof to court, judge, or court commissioner: 1. That
the plaintiff has a cause of action, stating nature and particulars, and that
the defendant absconds from his creditors or is not resident and that sum­
mons can not be served. (But no attachment will issue hereunder against
the rolling stock of a common carrier of another State or against the
goods o f a non-resident in transit in the custody o f a common carrier
o f this or another State.) 2. That cause of action survives against heirs
or devisees of decedent, and that some o f such are unknown or non­
resident and there is property of decedent in this State liable to answer
the cause o f action.
B a n k s are incorporated under special act. Under certain conditions
may purchase, hold, and convey real estate. Have the same general powers
and are subject to the restrictions and liabilities contained in the general
corporation act, so far as the same are applicable. Every bank shall make
at least four reports each year to commissioner of banking and insurance.
These reports shall be published in newspaper where bank is located. In­
dividual or private bankers are subject to the supervision and control of
the Department of Banking and Insurance. (See P. L. 1899, p.431.)
Chattel mortgages. Chattel mortgages to be valid must be ac­
knowledged as deeds and affidavit of the consideration must be made by
the mortgagee. They must be recorded. In case household goods are
mortgaged, the wife must also join.
C ollaterals. As security ior loans, regulated by commercial law.
Pledges of property to pawnbrokers regulated bv statute.
Contracts. The following must be in writing: Leases for a longer
term than three years. Assignments, grants, or surrender of leases. Dec­
larations or creations of trust (does not interfere with implied or con­
structive trusts), grants and assignments of trusts. Special promise of
executor or administrator to answer out of his own estate. Special prom­
ise to answer for the debt, default, or miscarriage of any other person. To
■charge any person upon any agreement made upon promise of marriage.
Contract or sale of lands, tenements, or hereditaments or any interest in
or concerning them. Any agreement not to be performed within one
year of the making thereof. Contract for the sale of goods of the value
of $500 or upward (acceptance of part of the goods or payment o f part
o f the price obviates necessity of writing); applies to sales for goods to
be made as well as such are in existence, unless good* are to be made
-especially for purchaser and are not suitable for sale to others in
-ordinary course o f seller’s business. Promise made after coming of
age to pay debt contracted in infancy. Promise of bankrupt to pay
after discharge. Commissions to broker or real estate agent, authority
to sell must be in writing and rate of commissions stated. In case of debts
fraudulently contracted, suit may be brought for recovery as soon as the
fraud is discovered, notwithstanding debt may not be due.
Conveyances. Usually bargain and sale or warranty. Must be ac­
knowledged to be recorded. (See Married Women.)
Corporations. Corporations are formed under the general act; how-ever, insurance, safe deposit or trust companies, banking corporations,
savings banks, railroad companies, or turnpike companies, or such other
companies which intend to derive profit from the loan or use of money,
or which shall need to possess the right of taking or condemning land,
must be incorporated under special act governing such companies, r The
•certificate of incorporation shall be signed personally by all subscribers
to the capital stock and set forth: 1. The name o f the corporation. 2.
The location of its principal office in the State. 3. The object or objects
for which the corporation is foimed. 4. The amount of the total author­
ized capital stock of the corporation, which shall not be less than $2,000,
the number o f shares into which same is divided, and the par value of '


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Federal Reserve Bank of St. Louis

each share. Thè amount of capital stock with which it shall commence
business to be not less than $1,000, which may be paid either in cash or
property, and if there be more than one class o f stock created bythe cer­
tificate/ of incorporation, a description of the different classes with the
terms on which the respective classes of stock are created. 5. The names
and post-office address o f incorporators and the number of shares sub­
scribed for by each, t.he aggregate of which shall be the amount of cap­
ital stock with which the company will commence business, and shall be
at least $1,000. 6. The period, if any, limited for the duration of the
company. 7. The cert ficate of incorporation may also contain any pro­
vision as to the regulation of the business and conduct of the affairs of
the corporation, and any provision creating, fineding, limiting, and regu­
lating powers of the corporation, the directors and the stockholders,
or any class of stockholders, provided such provision be not inconsistent
with the act concerning corporations. Every certificate and report must
give address of New Jersey office and name of agent in charge thereof,
upon whom process against the corporation may be served. Directors
shall be stockholders, and shall be chosen annually by the stockholders.
They must be three in number, at least. The officers are chosen annually ;
president must be a director. One director must be a resident of the
State of New Jersey. Corporation may determine the manner of calling
and conducting all meetings, and what number of shares shall constitute a
quorum. (P. L. 1901, p. 260.) When corporation is insolvent, remedy is by
Bill in Chancery, the application for and appointment of receiver of such
insolvent company. Laborers and workmen have first lien upon assets to
a limited amount. Liability of the stockholder ceases when shares are
fully paid for, or in other words, a stockholder is only liable to the
amount of his unpaid subscription to the capital stock. Foreign corpo­
rations are subject to the provisions of the general corporation act in so far
as the same are applicable ; the provisions of which having been complied
with, there is issued by the secretary of State to such foreign corpora­
tions a certificate that it is authorized to transact business in this State.
It is unlawful for a foreign corporation to transact business in this State
until such certificate is obtained. Foreign corporations, other than
municipal, may purchase, use, and Convey real estate in New Jersey.
Associations not for pecuniar v profit may incorporate under special law
providing for such incorporation. A copy of the corporation law of the
State, with full forms and instructions for incorporating, is sent without
expense by the secretary of State, Trenton, N. J., upon application.
A copy of the corporation act may be had free upon application to New
Jersey Registration and Trust company, 525 Main street, East Orange, N. J.
, C ourts. Terms and Jurisdiction. Circuit courts and courts o f com ­
mon pleas, holding three terms a year in each county, have jurisdiction
in all civil cases, but to carry costs must recover at least $100, except
that the court of common pleas has no jurisdiction where title to lands
comes into question. The supreme court, holding three terms a year at
Trenton, has also original jurisdiction in all cases,but must recover $200
to carry costs. Court of chancery has exclusive equity jurisdiction, and
sits at Trenton three times a year. District court jurisdiction, co-extensive with county, in amounts $500 or under; justices’ court jurisdiction
co-extensive with county, in amount $200 or less. In cities where dis­
trict courts are established and defendant or justice of the peace reside
within the limits of said city the justices’ court has no civil jurisdiction
whatever. (See District Court Revision, P. L. 1898.) The court of errors
and appeals has no original jurisdiction, but hears appeals from court of
chancery, and pre rogative court, and writs of error from supreme court
and circuit courts.
D a y s o f G r a c e . Abolished since July 4, 1895, unless stipulated to
the contrary.
D e p o s itio n s ' of material witness residing in the State, who is
ancient, or very infirm, sick, about to go out of the State, or absent
from the State, may be taken de bene esse before a judge of the supreme
court, judge of the court of common pleas, supreme court commissioner, or
master in chancery, on notice to adverse party. Of material witness resid­
ing out of the State by virtue of a commission issued out of the court
before which the action is pending, either on interrogatories or orally upon
notice. The commissioner must first take and sign an oath, “ faithfully,
fairly, and impartially to execute the said commission” before any officer
authorized to take an oath. Such depositions may also be taken before a
judge of the supreme court, or district court, or court of common pleas,
commissioner of deeds appointed by the governor of the State of New
Jersey resident where the witness is, on notice of one day, exclusive of
Sunday, for every fifty miles of travel and not less than ten days in all.
If the witness resides on the Pacific coast, the court fixes the length of
notice. If in a foreign state or kingdom, not less than forty days’ notice
must be given. (See Jefferey’s Law Precedents, p. 260, et seq., and Dick­
inson’s Chancery Precedents, p. 217, et seq., for forms and instructions.)
Descent and Distribution. Descent: 1. To children and grand­
children, and so on, that is, lineally, ad infinitum. 2. In default of class 1,
to brothers and sisters of the whole blood, and their issue. 3. In default of
classes 1 and 2, to the father, unless the inheritance came from the mother
by descent, devise, or gift. 4. In default of classes 1,2, and 3, to the mother
for life. 5. In default of the former classes, to the brothers and sisters of
the half blood and children of such, provided the inheritance came from the
common blood or by purchase. 6. In default of all of these to the per­
sons of equal degrees of consanguinity-. 7. In default of all above classes
to the husband or wife, if any, in fee simple. Escheat to State after all
above claims are exhausted. Distribution: 1. One-third to widow, residue
to children and legal representatives of such children. Advancements and
settlements are to be 'deducted from share of child so advanced or receiv­
ing settlement. 2. If no children or legal representative, one-half to widow,
residue to next of kin. 3. If no widow, to the children equally, and if no
children then to next of kin and legal representatives. 4. tf father be
dead and child die without widow or children in lifetime o f mother, every
brother and sister and representatives shall have equal share with mother.
5. If mother of illegitimate child or children die without leaving husband
or lawful issue then illegitimate child shall take her estate. 6. The estate
of illegitimate child dying without widow or lawful issue shall go to
mother. 7. Where person has died intestate, leaving widow but no kin­
dred or relatives capable of taking estate, and the estate be undistributed,
it is now given in full to widow of such intestate. 8. The estate of
person dying without leaving widow or kindred or relatives, after one year
shall be put out at interest and income paid annually to treasurer of city
or township. Seven years after decease all claims are barred.
D iv o r c e . 'Court of chancery has jurisdiction. Causes: Former hus­
band or wife living. Parties within the degrees prohibited by law.
Impotence. Adultery. Willful, continued, and obstinate desertion for
two years. From bed and board for extreme cruelty. For first three
¡fuses, decree of nullity. Decree of nullity will be made in certain cases
v, wife under sixteen or husband under eighteen at time of marriage.
D o w e r . Widow entitled to one-third for life o f all the lands of which
her husband was seized during coverture, for which she has given no re­
linquishment or release by deed, properly executed and acknowledged.
(See Descent and Distribution.)

BANKING AND COMMERCIAL LAW S—N E W MEXICO,
E x e c u tio n s issue immediately upon a rendition of judgment, and are
returnable either m term or vacation. An execution and ievy upon a
junior judgment tases priority over a former judgment under which no
execution and levy has been made. The proceeds are applied to the
payment of the execution upon which the sale is had. There is no
8*;aL 0* execution, except on those which are issued out o f justice’s,
courts. In these courts thirty days are allowed on sums up to $15:
three months up to $60, and six months on all sums over $60, and this
only c>j se of j udgment by confession and defendant giving good and suffi­
cient freehold security. There is no redemption after safe in any case.
Where an execution has been returned unsatisfied, the court out of
which it was issued may, on application of the judgment creditor, make
an order compelling the debtor to appear before the officer named and
make discovery on oath concerning his property. The judgment
creditor shall present to the court a petition verified by oath, in which
he shall state the amount due on said execution, the return made, and
ins beliet that the debtor has property in his own right over and above
ttmt which is reserved by law. Court may make order forbidding debtor
from receiving or transferring property where it is shown he has property
or rights in action. Order may also be made against third person owing:
debtor or having his property in control, custody, or possession. Arrest
on a capias can only be had in case of fraud or attempted removal or
disposal ot property with intent to defraud creditors. Creditor may pro­
ceed upon unsatisfied judgment at law by bill in chancery court has
power to compel discovery, examine debtor, and to preserve and make
disposition of property.

1209

Transfer of Corporation Stocks. Shares of stock are personal
property, transferable on books, but cannot be voted on if transferred
twenty days before election. Subject to attachment and levy of execution.
W ills . There are four requisites to make a valid will in this State.
q
i ® B SP H
111 wrlting. 2. That it be signed by the testator,
a. That such signature shall be made by the testator, or the making
thereof acknowledged by him in the presence of two witnesses, who shall
at his request sign their names as such in the presence of the testator
and of each other. 4. That it shall be declared to be his last will in the
presence of these witnesses. Sealing is customary.

SYNOPSIS OF THE LAWS OF NEW
MEXICO
RELATING TO

BANKING AND COMMERCIAL USAGES.

„ E x e m p t io n s . The lot and building thereon, owned and occupied by
Prepared and Revised by F e l i x H. L e s t e b , Esq., Attorney at Law,
the debtor, being the head of a family, to the value of $1,000, providing
that in the debtor’s deed it is set out that the property is intended
Albuquerque. (See Card in Attorneys' List.)
tor a homestead, or else that notice to such effect is filed in the county
clerk’s office. Personal property to the amount of $200, besides wear­
Acknowledgments. (See Conveyances.)
ing apparel, owned by a resident head of a family, appraised by three
A c tio n s . The practice in this Territory is the code modified by rules
persons appointed by the sheriff; and the widow or family of a deceased
or court. All civil actions in district courts are brought as follows: All
person may claim the same exemption of $200 as against the creditors.
transitory
actions shall be brought in the county where either the
Family o f absconding debtor may claim exemption of $20'J as above.
plaintiff, or defendant, or some one of them, resides, or In the countv
where the contract sued on was made, or is to be performed or where
Frauds. (See Contracts.)
the cause of action originated, or indebtedness sued on was’incurredGarnishment. (See Attachment.')
or in any county in which the defendant, or either of them, may be
Holidays. Legal holidays are: January 1st, commonly called New
found, in the judicial district where the defendant resides. When the
Year’s Day; February 12th, called Lincoln’ s Birthday; February 22d known
defendant has rendered himself liable to a civil action by any criminal
as Washington’s Birthday; Good Friday; May 30th, known as Decoration
act, suit may be instituted against such defendant in the county in which
Day; July 4th, called Independence day; first Monday of September, known
the offense was committed, or in which the defendant may be found or
as Labor Day; December 25th,known as Christmas day; Thanksgiving Day
in the county where the plaintiff resides. When suit is brought ior the
and any general election day. Ifa n y o i these days happen on Sunday
recovery of personal property, other than money, it may be brought as
the holiday is kept Monday. Every Saturday from 12 o’clock at noon to
herein stated, or in the county where the property may be found When
12 o’clock at midnight is a half-holiday.
lands, or any interest in lands, are the object of any suit, in whole or in
part, such suit shall be brought in the county where the land or any
Husband and W ife . (See Married Women.)
portion thereof, is situated. Suits for trespass on land shall be brought as
Interest. Legal interest on debts and judgments, 6 per cent. Usury
provided for m transitory actions, or in the county where the land, or any
is punishable by forfeiture of all interest and costs. Interest on an open i portion thereof, is situate. Suits may be brought against transient persons
account accrues on each item from its date, as at common law. No cor­
or non-residents m any county of this Territory.
poration can make defense o f usury.
A d m in is tr a tio n o f E states. Letters of administration are granted
J u d g m e n ts become a lien on lands from time o f actual entry, and
In the county in which the mansion, house, or place of abode of the
so remain for twenty years. Where there are several judgments, that
deceased
is situated, or in the county in which lands of the decedent
under which the first levy is made takes priority. Judgments recovered
are located, and in the absence of all these, in the county where the
or docketed in the supreme court are a lien on all lands of defendant
deceased
died. Letters are granted, first, to the husband or wife surviv­
within the State. Judgments recovered before a justice of the peace may
ing; secondly, if there be no husband or wife surviving, to those who are
be docketed in common pleas, so as to be a lien upon lands. Decrees in
entitled
to
distribution of the estate, or one or more of them, as the probate
chancery may be enrolled in supreme court; when so recorded, have
judge shall believe will best manage the estate; thirdly, to any creditor
«fleet of judgment recovered therein.
thirty days after the death; fourthly, probate judge may select a suitable
person. The probate court has exclusive jurisdiction, and from all its acts
Limitations o f Suits. Contracts not under seal, six years; real
an appeal lies to the district court. (See Claims against Estates.)
actions and judgments, twenty years; notes secured by mortgage and
contracts under seal, sixteen years. Revivor: Part payment or new
A ffidavits. Affidavits to be used in court may be taken before any
promise or acknowledgment in writing.
person authorized to take acknowledgments.
A lie n s . _ By statute of the Territory, foreigners have the same right to
Married W om en hold and control their property, real and per­
own and dispose of real estate that citizens of this country enjoy, and
sonal, precisely as if unmarried. But a married woman can not be­
property descends to their heirs and is controlled by their executors and
come an accommodation indorser, guarantor, or surety, except under
administrators in precisely the same way. (See Act o f Congress, July 20,
certain conditions. (See P. L. 1895, p. 821.) She cannot convey or
1886.)
incumber real estate without her husband, except she is living in a
state of separation from her husband, and there has been no issue of
A r b itr a tio n . All litigants shall have the right to terminate their suits
such marriage, or her husband is unable to join through lunacy or
in whatever condition they may be, by means of arbitrators. The arbi­
other mental incapacity, or in case an assent to the same has been signed
trators shall enter into an agreement (the form for which is provided by
and acknowledged by the husband. A married woman may make a will
statute) to submit their differences to arbitration, and the arbitrators shall
of her separate estate as if she were sole, but can not defeat her hus­
receive proofs and hear arguments of counsel, and render sentence as the
band’s interest in her real estate, although she can make absolute
majority of the arbitrators may decide, and any of the courts will enforce
disposition of her own private personal property without regard to her
the decision of the arbitrators by issuing execution thereon.
husband. A married woman who is an executrix or trustee may convey
A ssig n m e n ts. Under chapter 67, laws of 1889, insolvent debtors may
lands of testator without husband joining. A married woman may
make assignments for the benefit of their creditors. No preferences are
execute a valid conveyance of life estate. (See Dower.)
allowed, but the assignment inures to the benefit of creditors generally, prb
rata. The court may upon proper application compel the assignee 'to
M o rtg a g e s . Unless to secure purchase money, wife must join. A
surrender the property to a receiver to be appointed by the court. The
married woman cannot execute any mortgage without husband. Fore­
claims of creditors to be verified by the oath of the creditor, his agent, far
closure is by action in equity. Chattel mortgages are absolutely void as
attorney. Assignee is required to settle up the estate within twelve months.
against creditors and subsequent bona fide purchasers and mortgagees,
unless the mortgage is acknowledged or proved according to law and re­
A tta c h m e n t. Creditors whose demands amount to $100 or more
corded, or unless the mortgage is accompanied by immediate delivery
may sue their debtors in the district court, by attachment in the follow­
and followed by continued change of possession of mortgaged property.
ing cases, to wit: 1. When the debtor is not a resident of nor resides in
Foreclosure of chattel mortgages is usually effected by seizure and sale,
the Territory. 2. When the debtor has concealed himself, or absconded,
although may be foreclosed in equity. Chattel mortgages must have an
or absented himself from his usual place of abode in this Territory,
affidavit annexed, setting out the interest of the mortgagee, consideration
so that the ordinary process of law can not be passed upon him. 8. When
of the mortgage, and the amount due and to grow due thereon; said
the debtor is about to move his property or effects out of this Terri­
affidavit to be made by the holder, or his agent or attorney. Chattel
tory, or has fraudulently concealed or disposed of his property or effects,
mortgages upon household furniture in the use of the family, unless
so as to defraud, hinder, or delay his creditors. 4. When the debtor
given for the purchase thereof, mutet be executed and acknowledged by
is about to fraudulently convey or assign, conceal, or dispose of his
both husband and wife.
property or effects, so as to hinder, delay or defraud his creditors. 5. When
the
debt was contracted out of this Territory, and the debtor has absconded
Negotiable Instruments. (See Bills o f Lading and Promissory
or secretly removed his property or effects into the Territory with intent to
Notes.}
hinder,
delay or defraud his creditors. 6. When defendant is a corporation
Powers o f Attorney for sale of land in which married woman
whose principal office or place of business is out of this Territory, unless
joins, must contain a full and particular description o f the lands, tene­
such
corporation
shall have a designated agent in the Territory, upon whom
ments, or hereditaments authorized to be conveyed.
service of process may be made in suits against the corporation. 7. When
Probate Law. (See Administration o f Estate»and Witts.)
the defendant fraudulently contracted the debt, or incurred the obligation,
respecting which the suit is brought, or obtained credit from the plaintiff
R eplevin requires bond from party issuing the writ. Officer holds
by false pretenses. An attachment may issue upon a demand not yet due,
for twenty-four hours, during which defendant may give bond and retain
in any case where ar attachment is authorized, in the same manner as
the goods, when the case proceeds. In the same suit damages may be
upon
demands Areauy due. The attaching creditor must file with the clerk
recovered. If no bond is given, goods are delivered to plaintiff.
of the court a bond with two or more sureties in double the amount of the
Suits are commenced by writs of summons, capias, warrant, or at­
claim, and an affidavit sworn to by plaintiff or some person for him, setting
tachment. Service by publication may be made in equity only, and in
out the amount of the claim, that it is due after allowing all just credits ana
common law courts, in case o f a foreign corporation, if service can
offsets, and on what account; and that affiant has good reason to believe
no be made on officers or agents, directors, clerks or engineers.
and does believe, in one or more of the causes for attachment hereinbefore
Taxes are and remain paramount liens,except as to taxes subsequently
set forth. Any person having property or effects of defendant in his hands
assessed, from and after December 20th following assessment. Taxes
may be garnisheed. The attachment may be dissolved by denying and
due and in arrear September 1st next after assessment may be collected
successfully contesting the truth of the ground of attachment specified in
by sale of land.. Right of redemption extends two years from sale.
the affidavit, and then the suit proceeds as an ordinary action.

77


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1210

BANKING AND COMMERCIAL LA W S—N E W MEXICO.

B a n k s. By an act of legislative assembly any number o f persons not
less than three, may associate to establish a bank; the capital stock shall
not be less than $30,000, o f which, at least, 50 per cent shall be paid in
at once and before transacting any business, and the remainder be paid
within a year; statements shall be sent to the Territorial treasurer of the
condition of the bank on the first Monday in January and July, and
be published at least once a week for three successive weeks in a news­
paper of the county. The officers and stockholders of every bank formed
under the provisions of the act shall be individually liable for all debts
contracted during the term of their being officers or stockholders of such
corporation, equally and ratably, to the extent o f their respective shares,
except that when any stockholder shall sell and transfer his stock, such
liability shall cease at the expiration of one year from the date of such
transfer. It is also provided, however, that the stockholders, collectively
of any bank, shall at no time be liable to such bank, either as principal
debtors, or sureties, or both, to an amount greater than two-fifths of the
amount of the capital stock actually paid in and remaining undiminished
by losses or otherwise.
B ills o f E x ch a n g e . All bills of exchange shall be due and payable
as therein expressed, and shall have the same effect and be negotiable in
like manner and shall have days of grace according to the custom of mer­
chants. Damage for non-acceptance or non-payment by persons outside
the United States 12 per cent upon the principal specified in the bill, with
interest on the same from the time of the protest; if drawn upon a person
at a place in any of the United States, or Territories thereof, 6 per cent
with interest. (See Bills and Notes.)
B ills a n d N otes are assignable as at common law, and the
assignee thereof can bring suit in his own name. On a joint and several
note, any one of the makers may be sued. Indorsers are subject to the
same liabilities as at common law. Interest is limited by statute to 12 per
cent per annum. Days of grace are allowed. Commercial paper falling
due on Sunday or any legal holiday is, under statute, payable on the next
business day thereafter.
C h a tte l M o rtg a g e s . Chattel mortgages and all instruments of
like effect must be acknowledged and recorded as deeds. In the absence
of stipulation to the contrary mortgagor has right of possession. Every
mortgage so filed for record is void as against creditors, subsequent
purchasers and mortgagees, after the expiration of one year from the
filing thereof, unless within the thirty days next preceding the expiration
o f one year from said filing, and each year thereafter, said mortgage be
continued by affidavit o f mortgagee, his agent or attorney, filed with
mortgagee, showing interest of mortgage and amount still due.
C la im s A g a in s t E sta te s. Claims must be properly entitled in the
name of the claimant against the executor or administrator of the estate,
and must be filed within one year from the appointment of the executor or
administrator or they will be barred. The probate judge hears and
determines claims against the decedent’s estate. All claims filed and not
expressly admitted m writing by the executor or administrator shall be
considered as denied. Claimants may appeal from the probate court to
the district court, which appeal must be taken within 90 days from
the decision of the probate court, and within eighteen months after the
appointment of the executor or administrator. Claims have preference as
follows: 1. Expenses o f administration. 2. Expenses of funeral and last
sickness. 3. Allowance for maintenance o f widow and children. 4.
Claims preferred by the express provision of the United States or terri­
torial laws. 5. Taxes. 6. All other debts. 7. Legacies. A claim against
an estate on account of matters occurring during the lifetime of the' de­
ceased cannot be allowed on the uncorroborated evidence of the claimant.

certificate has been filed the life of the corporation begins, with all the usual
liabilities and powers. The stock of the corporation is personal estate.
There is no personal liabilities upon stockholders if stock is paid up, except
where debts are incurred in excess of the capital stock. The stock of astockholder may be taken on attachment or execution. The capital stock
may be increased or diminished by a vote of two-thirds of the shares of
stock at a meeting of the stockholders, called for that purpose, upon four
weeks’ notice, signed by a majority of the directors. Foreign corporations,
or those organized under the laws of other states and territories, may do
business in this Territory by filing with the secretary and probate clerk of
county in which the principal place of its business shall be a copy of the
laws under which they are chartered, and a certified copy of their charter,
and also a certificate signed hy the president and secretary of such com­
pany, duly acknowledged, designating the principal place where the busi­
ness of said company shall be carried on, and an authorized agent or
agents residing at said principal place of business upon whom process
may be served. Railroad corporations come under a separate head with
peculiar privileges and restrictions.
C osts. Security for costs or a deposit of money in lieu thereof is
required of plaintiffs, in the discretion of the court.
C o u rts. District courts hold two terms a year in all the counties, and
have unlimited common law and chancery jurisdiction. There are
probate courts with the usual powers, holding six terms a year. District
courts are at all times in session for the transaction of all business except
jury trials.
D ays o f G ra ce .

(See Bills and Notes.)

D e p o sitio n s. Depositions of witnesses to be used in any court in this
Territory in all civil cases, and proceedings may be taken in the following
cases: t. When by reason of age, infirmity, sickness or official duty it is
probable that the witness will be unable to attend the court. 2. When the
witness resides without the Territory or the county in which the suit is
pending. 3. When the witness has left or is about to leave the Territory or
county m which the suit is pending, and will probably not be present at the
trial. Depositions may be taken on interrogatories and cross interrogatories
attached to a commission to be issued by the clerk of the court or justice
of the peace, and may be taken within the Territory by a district judge,
clerk of district court, clerk of probate court or any notary public of the
county where taken. They may be taken without the Territory by any
clerk of a court of record having a seal, by a notary public or a com­
missioner of deeds duly appointed under the laws of this Territory, and
residing within the State or Territory within which the witness is alleged
to be or resides. The officer to whom the commission is addressed is
authorized to issue subpoenas for witnesses, and upon their appearance,
and take and reduce to writing their answers to the interrogatories, which
shall be signed and sworn to by the witnesses. The officer shall certify
that the answers were signed and sworn to by the witness before him and
shall seal them up in an envelope together with the commission and inter­
rogatories, and shall write his name across the seal, and shall direct the
package to the clerk of the court or justice of the peace issuing the com­
mission. If sent by mail the postmaster mailing the same shall indorse
thereon that he received them from the officer taking the same, and sign
his name. In every case the officer taking the deposition shall certify that
he knows the witness to be the person such witness purports to be, but if
such witness is not personally known to the officer he shall then require
the witness to be identified by at least two responsible persons well known
to the officer, and he shall certify to the fact of identification of the witness.

D iv o r c e . The grounds for divorce are: Adultery, cruel or inhuman
C o n v e y a n ce s. All conveyances o f real estate shall be subscribed
treatment, abandonment, habitual drunkenness, and neglect on the part
by the person transferring his title or interest in said real estate, or by hi
of the husband to support the wife, impotency, pregnancy, conviction of
legal agent or attorney. Every instrument in writing by which real estate j a felony. Complainants must prove residem e in the Territory for one
is transferred or affected, in law or equity, shall be,acknowledged and cer­
year before beginning suit. The district court has exclusive jurisdiction,
tified to in the manner hereinafter prescribed. T he acknowledgment of
and at least one corroborating witness is required.
all conveyances or writing affecting any real estate, in law or equity, shall
be taken before any of the following named officers: If the acknowledg­
D o w e r . All property owned by any woman at the time of her marriage,
ment is made within the Territory it shall be made before any (1) clerk
continues to be her separate property, and she may receive and hold
of the district court, (2) judge o f probate court using probate seal, (3)
property during coverture free from liability on account of her husband’*
notary public, (4) justice of the peace. If taken without the Territory
debt, except for necessaries of life. There is no dower in the Territory,
and within the United States, the acknowledgment to be taken (1) before
but a married woman is entitled to one-half of all the property acquired
a clerk of some court of record having a seal, (2) a commissioner of deeds
by the husband and wife during coverture, first, however, deducting all
duly appointed under the laws of this Territory, (3) a notary having a seal.
indebtedness.
If acknowledged beyond the limit of the United States, it shall be done
before any (1) minister, commissioner, or charge d’ affaires of the United
E x e c u t io n s . Executions may Issue at any time within seven years,
States resident and accredited in the country where the acknowledgment is
provided first execution is taken out within five years after rendition of
made, (2) consul general, consul, vice-consul, deputy consul, consular agent
judgment, and to any county in the Territory. From district courts are
of the United States, resident in the country where the acknowledgment
returnable in sixty days from delivery to sheriff, and from justices’
is made, having a seal, (3) a notary public having a seal. Husband or
courts within thirty days from date of issue. No stay of execution
wife may convey their separate estate without consent of the other and
except by appeal. A writ of error will stay execution of a judgment in.
husband has sole management and disposal of community property.
district court, if such writ is applied for within three months from date
No seal or scroll necessary to the validity of conveyances except by cor­
of rendition of judgment, and bond is given for double the amount o f
porations.
such judgment. The supreme court may assess 10 per cent damages where
appeal is taken without reasonable cause. Real estate sold under execu­
C o r p o r a tio n s . By act of congress, approved March 2, 1867, legis­
tion, and subject to liens and incumbrances, may be redeemed within one
lative assemblies of the several Territories were prohibited from granting
year. Sales under execution must be advertised four weeks prior to day
charters of especial privileges, but were authorized to pass general incor­
of sale, in some newspaper.
poration acts to permit persons to associate themselves together as bodies
corporate for certain purposes named. Any three or more persons may
E x e m p t io n s . Real estate to the value of $1,000 shallbe exempt
form a corporation for mining, manufacturing, or other industrial^pursuits,
from execution in favor of heads of families actually residing on
or the construction and operation of railroads, wagon roads, irrigating
the
same, provided the exemption be claimed. But if in the
ditches, and the colonization and improvement of lands in connection
opinion of the creditors the premises claimed as exempt are worth
therewith; or for colleges, seminaries, churches, libraries, or any benevo­
more
than $1,000, it shall be lawful for the officer to advertise
lent; charitable or scientific association. To do so they must make, sign,
and sell the premises, and out of the proceeds of such sale pay to'
and acknowledge—before some officer competent to take the acKnowleagthe
execution
debtor $,1000, and apply the balance to payment
ment of deeds—a statement in writing (for the filing of which the
of execution, provided that no sale can be made unless more
Territory is entitled to graduated fees), setting forth the full names
than
$1,000
be
bid
for the premises. Also the clothing, beds, and bed­
■of such persons; the corporate name of the company; the objects for
clothing necessary for the use of the family; and firewood sufficient for
Which it is formed; the amount of its capital stock; the time of its exist­
sixty
days,
when
actually
provided and intended therefor. All Bibles,
ence, not exceeding fifty years;, the number of shares into which the capital
hymn-books, testaments, school-books used by the family, and family
stock is divided; the number of directors and their names, who shall
and
religious
pictures.
Provisions
actually provided, to the amount of
manage the affairs of the company for the first three months, and the name
$50, and kitchen furniture and household furniture not exceeding $200
•of the city, or town and county in which the principal place of business of
in
value,
both
to
be
selected
by
the
debtor. Also all tools and imple­
the company is located: the amount of the capital stock with which
ments belonging to the debtor that may be necessary to enable him to
it will commence business, which shall not be less than $2,000,
carry
on
his
trade
or
business,
whether
agricultural or mechanical, to be
and if there be more than one class o f stock created by the certifi­
selected by him, and not to exceed $150 in value. Real estate when sold
cate of incorporation, a description of the different classes, with the
under
execution
must
be
first
appraised
by
two freeholders of the vicinity,
terms on which the respective classes of stock are created; the
and must bring two-thirds of the appraised value. Unmarried men have
names and post office addresses of the incorporators and the number
no
exemptions.
Any
resident
of
the
Territory
owning no homestead may
o f shares subscribed by each, and shall also give the name of the
select other property, not exceeding $500 in value, in lieu thereof.
agent in charge of the jrincipal office upon whom process can
be served. There shall bL at least three directors in each company,
F o r e ig n C o rp o ra tio n s. (See Corporations.)
and a majority o f them citizens of the United States, and at least oneF o re ig n J u d g m en ts. Action founded upon any judgment of any
third residents of the Territory. And after the expiration of the term of
court of record of any other Territory or State of the United States,
those first selected (three months), they shall be selected annually by the
or of the federal courts may be brought within seven years from ana
stockholders from among their number. A majority of the whole number
after the rendition of such judgment, and not afterwards.
o f directors form a quorum for the transaction of the business. When the


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Federal Reserve Bank of St. Louis

BANKING AND COMMERCIAL LAW S—N E W . YORK.
F ra u d . Fraudulent conveyances, or conveyances made with the
design to prefer one or more creditors in preference to others, and, when
the debtor is insolvent, may be set aside upon application by a hill in
equity. (See Assignments.)
G a r n is h m e n t. All persons and corporations are subject to garnish­
ment for moneys of a debtor in their hands, and a failure of the garnishee
to appear and answer, subjects the garnishee to a proceeding for con­
tempt. (See Attachments.)
H o lid a y s. Sundays, Christmas, New Years, Fourth of July, and
such other days as may be designated by the goverment as holidays.
H o m e ste a d s. (See Exemptions.)
H u sb a n d a n d W ife . (See Divorce and,Dower.)
In s o lv e n t L a w s. (See Assignments.)
I n t e r e s t and U sury. Six per cent interest is the legal rate of inter­
est in absence of contract, but parties may agree in writing for any rate
of interest not exceeding 12 per cent. Open accounts bear interest at
6 percent from six months alter the date of last item in the account.
Judgments bear the same interest as contract sued on, and in the absence
of any specified rate, 6 per cent.
J u d g m e n ts. Money judgments of the district court for the counties
of Santa Fe, San Miguel, Bernalillo, Socorro, and Dona Ana, are liens on
real estate of the judgment debtorfrom the date of rendition, if within sixty
days after rendition of such judgment a transcript of the docket of such
judgment be filed in the office or the recorder of the county in which such
real estate is situated. A like judgment of the district courts of all other
counties of the Territory and of the supreme court of New Mexico becomes
a lien upon thé real estate of the judgment debtor from the date of the
filing of a transcript of the docket of such judgment in the office of the
recorder of the county in which the real estate is situated.
J u ris d ic tio n . Justice courts have jurisdiction to the amount of $100.
District courts have unlimited original jurisdiction. Probate courts hold
six terms annually, and have ordinary probate jurisdiction. District courts
in certain counties also sit for the trial and hearing of causes arising under
the constitution and laws of the United States. District courts and pro­
bate courts are courts of record.
L ie n s. Every person performing labor upon, or furnishing materials
to be used in the construction, alteration, or repair of buildings, etc., has
a lien upon the same for the work done, or for the materials furnished,
but every original contractor claiming the benefit of the lien law must,
within ninety days after the completion of any building, etc., file with
the county recorder a claim showing the amount o f his demand remain­
ing due him, name of the person by whom he was employed, and a gen­
eral statement of his contract; also a description o f the property to be
charged with the lien, which claim must be verified by the oath of the
party or his agent. Sub-contractors have sixty days in which to file liens.
Landlords, innkeepers, and common carriers have the usual lien on
property and baggage of tenants, guests, and shippers. (See Judgments.)
L im it a t io n s . Ten years’ adverse possession o f land under color of
title, having paid taxes on the same for such period, bars all actions.
Infants, femme covert, persons of unsound mind, imprisoned, or beyond
the limits o f the United Statès, excepted, and have one year after removal
of disability in which to bring action. All other actions must be brought
as follows : Upon judgments of courts o f record, within seven years; on
bonds, promissory notes, bills o f exchange, or other contracts in writing,
and upon j udgments of any court not of record, within six years ; on
open accounts and unwritten contracts, injuries to property, conversion
of personal property, relief on account of fraud, within four years;
against sureties on official bonds, and against sheriffs and public officers,
within two years. Actions of replevin must be brought within one year
after right of action accrued.
M a r r ie d W o m e n . (See Dower.) May sue and be sued as/emme sole.
M e ch a n ic s ’ L ie n s. (See Liens.)
M o rtg a g e s o f P e r s o n a l P r o p e r ty . (See Beal Estate and Chattel
Mortgages.)
M o rtg a g e s o f R e a l P r o p e r ty . There is no statute relating to
mortgages on real estate, except that they must oe executed and recorded
in the same manner as deeds. Mortgages of chattels are provided for in
the statute, and may be given on all kinds of personal property, except
growing crops. Every mortgage so filed shall be void as against the
creditors of the person making the same, or against subsequent pur­
chasers or mortgagees in good faith, after the expiration of one year after
the filing thereof; unless within thirty days next preceding the expiration
of the term o f one year from such filing, and each year thereafter the
mortgagee, his agent, his attorney, shall make an affidavit exhibiting
the interest of the mortgagee in the property at the time last aforesaid,
claimed by virtue of said mortgage, and if said mortgage is to secure the
payment of money, the amount yet due and unpaid; such affidavit shall
be attached to and filed with the instrument or copy on file, to which it
related. In the absence of a stipulation to the contrary, the mortgagor
of personal property has the right to the possession thereof. After con­
dition broken the mortgagee or his assignee may, where the amount
o f the debt does not exceed $300, proceed to sell the mortgaged prop­
erty, or so much thereof as shall be necessary to satisfy the mortgage
and cost of sale, having first given notice of the time and place of sale,
by written or printed hand-bills posted up in at least six public places
in the precinct in which the property is to be sold, at least for four
weeks preceding the day of sale. I f the mortgagee or his assignee
shall have obtained possession of the mortgaged property, either
before or after condition broken, the mortgagor or any subsequent
mortgagee may demand in writing a sale of such property, having first
given notice as provided for above. I f after satisfying the mortgage and
costs of sale there shall be any surplus remaining, the same snail be paid
to any subsequent mortgagee entitled thereto, or to the mortgagor or
his assignee. The husband may mortgage his separate estate without the
consent or signature of his wife. (See Conveyances.)
N o te s a n d B ills o f E x ch a n g e . (See Bills and Notes.)
P a r tn e rs h ip s , L im it e d . Limited partnerships may be formed by
two or more persons for the transaction of any mercantile, mechanical,
manufacturing, or other business, _except banking or insurance. Such
partnerships may be general or special.
P r o b a te L a w . (See Claims Against Estates, Descent and Distribution,
Executors and Administrators.)
P ro te s t. Any notary public may make protest of bills of exchange,
acceptances, promissory notes, etc., for non-payment. The certificate or a
notary, under his official seal, as to presentment, demand, non-payment, or
non-acceptance, and notices to parties, shall be prima facie evidence of
the facts certified to. Fees for protest and certificate thereof $2; 25 cents
additional for each notice.
R e c o rd s . (See Conveyances.)


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1211

R e d e m p tio n . Real estate sold under execution may be redeemed by
the execution debtor within one year, by paying to the purchaser the pur­
chase money with interest thereon at 12 per cent. Beal estate sold for
taxes may be redeemed within three years, but the debtor shall pay inter­
est at 1X per cent per month on the purchase money. The purchaser
under execution is entitled to the growing crops, and the rents and profits.
R e p le v in . Any person entitled to the immediate possession of per­
sonal property may have a wrjt of replevin for the same, upon filing an
affidavit that he is entitled to the immediate possession of the property,
that the same was wrongfully taken or is wrongfully detained by the
defendant, and that the plaintiff’s right of action accrued within one year.
Before the writ is served, plaintiff must give bond to the officer conditioned
to hold him harmless, make return of the property, if a return be adjudged
and pay all costs that may be adjudged against him, the affidavit to be
made and bond executed by the plaintiff, or some responsible person for
him. If the plaintiff fail in his action, or to prosecute the same, defend­
ant is entitled to a return of the property, or its value at his option, and
to double damages for the detention of the property. No cross replevin
allowed.
T a x a tion . Taxes have the force and effect of a judgment against the
person assessed and constitute a lien upon real and personal property.
Taxes become delinquent, one-half the first day of December of the year
for which the same was levied, and the other half the first of June follow­
ing, and unless the same is paid on the second days of December and July
respectively, one per cent penalty is added; and unless said taxes are paid
on or before the first day of the following month four per cent additional
is added. After sale certificates draw interest at the rate of l l/3 per cent
per month. Real estate sold for taxes may be redeemed within three
years. Exemption to amount of $200 allowed to head of family residing
in Territory. Irrigation, reservoir, and railroad companies exempt under
certain conditions for a t