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BANKING AND COMMERCIAL LAWS.
COMPILED EXPRESSLY FOR THE BANKERS’ DIRECTORY.
SYNOPSIS OF THE LAWS OF ALABAMA
r
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. Bondurant & Smith, 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 courts
chancellors, registers in 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
executed the same 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 United States, by the judges of any court of record,
mayor or ch’ef magistrate of any city, town or borough, or county,
notaries public, or by any diplomatic, consular, or commercial agent
of the United States.
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
for costs. When two or more persons are jointly bound by judgment,
bond, or agreement, the obligation is several as well as joint.
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.
A Check. Is a bill of exchange on a bank payable on demand;
must be presented with reasonable time after issue and if dishonored,
notice must be given or drawer is discharged to the extent of loss
caused by delay; does not operate to assign any part of drawer’s funds
in bank, and bank 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 Alabama, consisting of
196 sections went into force August 9, 1907. 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
examination in any doubtful case.
Administration of estates is had in the Probate Courts of decedents’
residence. All claims must be presented within twelve months after
the same have accrued or within twelve months after the grant of
letters testamentary or of administration, or else barred. Infants and
persons of unsound mind have one year to. present their claims after
disabilities removed. Administration of intestate is granted, 1st:
To the husband or w'dow; 2d: The next of kin entitled to share in
the distribution of the estate; 3d: The largest creditor of the intestate
residing within this.State: 4th: Such other person as the judge of
probate may appoint. There can Are no appointment until after
expiration of fifteen days from date of death. Preference must be
exercised within forty days or rights relinquished. If several entitled
to administer, men are preferred to women and whole blood to half
blood. Non-resident executors and administrators may sue in this
State by recording in probate judge’s office copy of letters and giving
bond to faithfully administer property.
Affidavits may be taken within the State before every judge or
clerk of any court, justices of the peace, and notaries public or any
other person invested bv law with judicial functions. Outside the
State and within the United States may be taken before any judge or
clerk of Federal Court, judge of any court of record in any state,
notaries public and commissioners appointed bv the Governor.
Aliens. “Foreigners who are, or may hereafter become, bona fide
residents of this State, shall enjoy the same rights io respect to the
possession, enjoyment, and inheritance of property as native-born citi
zens.”—Sec. 34, Const.
Alterations. Fraudulent or material, do not affect original instru
ment in hands of innocent holder in due course.
Arbitration. Courts are compelled by statute to make an order
submitting cases for arbitration when moved for by the parties, and
to continue this cause for one term for an award, but not longer with
out consent of parties, or good cause being shown therefor. The
award of the arbitrators may be entered up and enforced as the judg
ment of the proper court whether made in a pending suit or not.
Arrest. There can be no arrest on civil process, except for con
tempt and in cases of alleged lunacy.
Assignments and Insolvency. Every general assignment made
by a debtor, or conveyance by a debtor of substantially all of his
property in payment of a prior debt, by which a preference or priority
of payment is given to one or more creditors, shall enure to the benefit
of all the creditors equally, but this section shall not apply to mort
gages, pledges, or pawns given to secure a debt contracted contem
poraneously with the execution of the mortgage. All assignments by
a debtor made with intent to hinder, delay, or defraud creditors are
void. All deeds of assignment for the benefit of creditors shall, as
soon as executed, be filed and recorded in the office of the judge of
probate of the county in which the property is situated. Every
judgment confessed, attachment procured by the debtor, or other dis
position of property by which a debtor conveys all, or substantially
all, of his property which is subject to execution in payment or as
security for a debt shall be deemed a general assignment.
Attachment process will issue upon affidavit by the creditor or his
agent of the amount due and that the debtor absconds, or resides,
out of the State, or secretes himself so that process cannot be served
upon him, or is about to remove out of the State, or has or is about to
fraudulently dispose of his property, or fraudulently withholds money,
chattels, or effects which are liable to the satisfaction of his debts;
plaintiff must give bond in double the amount claimed. Attachments
will issue for the following demands: 1: To enforce the collection of
a debt, whether it be due or not, at the time the attachment is taken
out. 2: For any moneyed demand, the amount of which can be
certainly ascertained. 3: To recover damages for a breach of
contract when the damages are not certain or liquidated. 4:
When the action sounds in damages merely. One non-resident
may sue out an attachment against another non-resident by
making oath that the defendant has not sufficient property
within the State of his residence wherefrom to satisfy the debt.
Attachments may be sued out in aid of a pending suit when any
of the above grounds exist. Garnishment process will issue m
aid of attachment in all such cases. Garnishment may be dissolved
by giving bond. In all cases of. attachments sued out solely upon
the 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.
Banks. The national bank system is in force in this State uncon
trolled in any way by State laws, except that the shares are subject
to taxation as other personal property, but the bank is required to pay
the tax.
There is no provision of law for the establishment of banks of issue
in this State. Banks of discount and deposit may be established
under the general incorporation laws. Depositors not claiming interest
are preferred creditors in case of insolvency.
Any banker who discounts a bill or note at a greater rate than 8
per cent cannot enforce the collection of same except as to the prin
cipal, and if any interest has been paid it must be deducted from the
principal.
Collaterals. Receipt must be given for if demanded.x Pledges or
collaterals not transferable without transfer of the debt; after two
days’ notice in writing collaterals may be sold, by advertising for five
days, at public outcry.
Conditional sales are good between the parties, but void where
personal property delivered to vendee as against purchasers for a val
uable consideration without notice, mortgagees and judgment credi
tors, unless in writing aud recorded in the office of the probate judge.
Contracts. In the following cases, every agreement is void,
unless such agreement, or some note or memo, thereof, expressing
the consideration, is in writing and signed by the party to be charged:
1. Every agreement which by its terms is not to be performed within
one year from the making thereof. 2. Every special promise by an
executor or administrator to answer damages out of his own estate.
3. Every special promise to answer for the debt, default, or miscar
riage of another. 4. Every agreement, promise, or undertaking,
made upon consideration of marriage, except mutual promises to
marry. 5. Every contract for the sale of lands, tenements, or heredi
taments, or of any interest therein, except leases for a term of not
longer than one year, unless the purchase money, or a portion thereof,
be paid, and the purchaser be put in possession by the seller.
Conveyances. All persons of the age of twenty-one years, not labor
ing under some legal disability, may convey their real estate or any
interest therein by instrument in writing signed by the grantor, or his
agent duly authorized in writing, and attested by one witness, or if the
grantor cannot write, by two witnesses who are able to write, and who
sign their names as witnesses. . If the grantor is not able to sign his
name it must be written for him, and the words “his mark” written
over or against it. The person writing his name must sign as a wit
ness. A parol lease for less than one year is valid. A married woman
over eighteen years of age may convey dower in her husband’s lands,
and has generally the same rights as married women over twenty-one
years of age. The husband must join in any conveyance of the wife’s
separate estate. Conveyances, to operate as notice, must be acknowl
edged and recorded. No time is required within which conveyances
shall be recorded. They operate as notices from date of delivery to
probate judge for record. (See Acknowledgments.) They may be
used as evidence without further proof of execution. Leasehold
estates may be created to last not exceeding twenty years, but if
longer void as to excess. A married woman must make the following
acknowledgment to a conveyance of a homestead:
State of............ . County of.............
I........................judge of............. (or other officer) do hereby certify
that, on the................ day of...................... 19.........came before me
the within named ...................... ...... known to me (or made
known to me) to be the wife of the within named.............................. .
who, being examined separate and apart from her husband touching
her signature to the within . ..............., acknowledged that she signed
the same of her own free will and accord, and without fear, con
straint, or threats on the part of her husband.
In witness whereof, I hereto set my hand this ............. day of
.......................19....
(Official Character.)
Corporation to make following acknowledgment:
......................... ................... that....................................................
whose name as.............................. . of the said corporation, is signed
to the foregoing conveyance, and who is known to me, acknowledged
before me on this day that, being informed of the contents of the
conveyance, he, as such officer, and with full authority, executed the
same voluntarily for and as the act of said corporation.
Corporations. Every company, corporation, or association, not
organized under the laws of Alabama, engaged in any other business
than insurance, shall, before engaging in any business in this State,
file in the office of the Secretary of State, at the capitol in Montgomery,
an instrument in writing, under the seal of such company, corporation,
or association, and signed officially hv the president and secretary
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BANKING AND COMMERCIAL LAWS—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 filed 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 iD this State without complying with above provisions, for each
offense forfeit to the State SI,000, and any person acting as agent for
foreign corporation that has not so compiled, forfeits for each offense
$500. All foreign corporations doing business in this State are
required to pay license fees ranging from $25 upward, according to
capita). Foreign corporations can do no business until fees are paid
nnd 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.
Courts. 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 inferior
courts, and impeachments of judicial officers, has only appellate juris
diction and cases are tried on the record sent up. Circuit Courts
have unlimited 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 in 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, in firm name,
without setting forth names of co-partners, but judgment in 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.
Days of Grace are abolished. (See Negotiable Instruments.')
Depositions. In cases 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 of
"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 officers 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 of
trial, depositions may be taken by oral examination before the regis
ter, or a special examiner, or commissioner appointed for the purpose.
Descent and Distribution. The real estate of persons dying
intestate, in this State, descends, subject to the payment of debts
and the widow’s dower, as follows: First to the children of the
intestate or their descendants per stirpes in equal parts. Next, 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 of
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 if
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 of km
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 if more than
four to one-fifth. Posthumous children take as others. Illegitimate
children inherit from their mother. The husband upon the death of
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 of all
control over her estate hy a decree of the Chancery Court.
Divorce. 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:
To either partv for adultery, for voluntary abandonment for two
years, for imprisonment in the penitentiary for two. years, when jne
sentence is for seven years or longer, for commission of the crime
against nature, and for becoming addicted to habitual drunkenness
after marriage. May be granted to the husband when the wire 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 from
his conduct there is reason to apprehend such violence. 1 he piaintin,
if the defendant be a non-resident, must have been a bona nde resident
at,least twelve months, and when the ground of divorce is abandon
ment must allege and prove that he or she has been a bona nde 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 the
support of the wife out of the estate of the husband, suitable to the
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.
Dower. 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 fee
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 the
husband leaves ch'ldren or their descendants. If the wife has at the
death of the husband a separate estate equal in 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.
Executions. Property subject to: 1st: On real property to
which the defendant has a legal title or a perfect equity, hat mg paid
the purchase money, or in which he has a vested mterest.in 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
C
1291
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 another, 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 in which it is received hy 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 by the clerk of the court may be filed in the office of the
judge of probate, which makes the judgment a lien within the county
in which it is filed for ten years thereafter. Execution may be issued
on such judgment at any time. 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 by 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.
Fraud. Obtaining money or goods on credit under false color or
pretense of carrying on business, or under false representation of
pecuniary condition, with intent to defraud, or bringing into the State
money or goods so obtained, punished as larceny.
Garnishment may issue in any case after suit commenced upon
affidavit of necessity and bond as in attachment cases, or after judg
ment, without bond.
Husband and Wife. 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 in 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.
Interest. 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.
Judgments 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 in 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 destroy 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.
Mechanics’ Lien. Mechanics, material men, and laborers have a
lien on houses built and the ground on which they stand upon com
plying with the law.
Lien for Rent. Thelandlords of any store house, dwelling house,
or other building, shall 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.
Limitations. Notes and stated accounts, six years; open accounts,
three years; sealed instruments, real actions, and motions against
officers, ten years; judgments, twenty years; actions on the case, one
year. 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 applicable
to equitable as well as legal demands, but do not run against direct
trusts. Any Agreement or stipulation to shorten the period prescribed
by law for the bringing of any action is void. Actions seeking relief
on the ground of fraud where the statute created a bar, the cause of
action begins to run upon discovery of the fraud by aggrieved party.
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 by the party to be charged thereby.
Married Women. (See Husband and Wife.)
Mortgages are executed and acknowledged in the same manner as
deeds. May be foreclosed by bill in equity, or if there be a provision
to that effect, by 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 notice from day of
delivery to probate judge for record. There is no fixed time within
which they shall be recorded. Homestead realty cannot be mort
gaged or otherwise aliened without the voluntary signature and assent
of wife, evidenced by acknowledgment, upon private examination
separate and apart from the husband, and certified. AU mortgages
must be in writing, signed by the mortgagor. Payment of mortgage
debt made before or after maturity of debt, revests in the mort
gagor, or his assigns, the. title to the real or personal prop
erty mortgaged, if made in the lifetime of the mortgagor; if
made after his death, such payment revests title to personal
proDerty in the personal representative, and title to realty in the heirs
devises, or legatees of the mortgagor. Chattel mortgages must be in
writing. When the mortgagor issued by the mortgagee for possess
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BANKING AND COMMERCIAL LAWS—ALASKA.
sion of the mortgaged property, he may defend by showing payment
of the debt, or part payment and a tender of the balance, or may pay
it after judgment.
Negotiable Instruments. 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 in 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 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; 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 c .- 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
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 pre
sented on next business day, but if payable on demand holder may
present same before noon on Saturday. Fraud and circumvention in
procuring execution of instrument is a defense against any holder.
Presentment. Is not necessary to charge one primarily liable
except in case of bank notes; 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 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.
Protest of Foreign Bills. May be made by 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 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
conferring authority to convey property may be proved or acknowl
edged in 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 rel.nquish dower must
be executed by 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.
Probate 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. Also of the appointment, removal, and settlements
of guardians for minors and persons of unsound mind, the binding out
of apprentices, the allotment of dower, and the partition of land belong
ing to joint owners. A court of 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.)
Replevin. Writ of replevin lies^o recover 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.
Taxes become delinquent on the 31st of December of the year for
which they were levied, and the lands may be sold by certain proceed
ings in the Probate Court commenced in the month of March following.
The purchaser of lands sold for 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
exchangeable for a deed from the probate judge—which is prima facie
evidence of title. Lands sold for taxes may be redeemed within two
years by the owner, mortgagee, or any person having a beneficial inter
est therein by depositing with the probate judge of the county in
which the lands were sold, the amount of purchase money, with interest
at 15 per cent per annum, and all taxes which have accrued subsequent
to the sale, and interest thereon, at 8 per cent per annum; also all costs
and charges. Whenever land is sold for State or county taxes, and
from any cause such sale is invalid to pass title to purchaser, sale
operates as transfer to purchaser of lien of state or county, or the
property for payment of taxes for which sold. All cotton factories
or cotton mills which shall be constructed in this State within five
years shall be exempt from taxation for a period of ten years, provided
such mills represent an investment of $50,000.
Wills. All wills of real or personal property must be in writing
signed by the testator in presence of two witnesses. Unwritten will
of personal property valid only when the property does not exceed
$500 in value, and must be made during last sickness by testator at
his home. Persons present must be called on to witness that it is
testator’s will and must be reduced to writing by one of the witnesses
within six days. Minor over eighteen may make a will of personal
property. No will effective until probated. May be contested in
Probate or Chancery Court.
SYNOPSIS OF THE LAWS OF ALASKA
RELATING TO
j
I
:
i
:
j
I
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by F. E. Fuller, Nome.
(See Card in Attorneys List.)
I
Acknowledgments. (See Deeds.)
Actions. The distinction between actions at law and suits in equity I
and all forms of pleading heretofore existing in actions at law and
suits in equity are abolished, and there is but one form of action,
denominated a civil action, for the enforcement or protection of pri
vate rights and the redress or prevention of private wrongs. Every
action must be prosecuted in the name of the real party in interest. !
except that an administrator or executor, a trustee of an express trust,
or a person expressly authorized by statute may sue without joining
with him the person for whose benefit the action is prosecuted; but the
assignment of a thing in action not arising out of contract is not
authorized.
Affidavits. An affidavit or deposition taken out of Alaska, other
wise than upon commission, must be authenticated as follows: 1. It must
be certified by a commissioner appointed by the governor of Alaska
to take affidavits and depositions in the State, territory, district,
or country where taken; or, 2, it must be certified by a judge of a court
of record having a clerk and a seal to have been taken and subscribed
before him at a time and place therein specified, and the existence of
the court, the fact that such judge is a member thereof, and the gen
uineness of his signature must be certified by the clerk of the court,
under the seal thereof. In all affidavits or depositions witness should
speak in the first person.
Aliens. Any alien who is a bona fide resident of the United
States, or who has declared his intention to become a citizen, or whose
rights are secured by treaty, may acquire and hold lands upon the
same terms as a citizen. Any alien may acquire lands by inheritance
or in the ordinary course of justice in the collection of debts, and may
acquire and enforce liens upon lands, but such lands must be sold
within ten years. Any alien may also acquire and hold lots or parcels
of land in any incorporated or platted city, town, or village, or in any
mine or mining claim, but is not authorized to acquire title from the
United States to any of the public lands
Arrest. The defendant may be arrested in the following civil
actions: 1. For the recovery of money or damages when the defend
ant is about to remove from the district with intent to defraud his
creditors; for an injury to person; or for willfully injuring or wrong
fully taking, detaining, or converting property. 2. For a fine or
penalty; or for money or property embezzled or fraudulently mis
applied or converted to his own use by a public officer, or by an attor
ney, or by an officer or agent of a corporation in the course of his
employment as such, or by any agent, broker, or other person in a
fiduciary capacity; or for any misconduct or neglect in office or in a
professional employment. 3. To recover the possession of personal
roperty unjustly detained, when the property or any part thereof
as been concealed, removed, or disposed of, so that it can not be found
or taken by the marshal, and with intent that it should not be so
found or taken, or with the intent to deprive the plaintiff of the
benefit thereof. 4. When the defendant has been guilty of fraud in
contracting a debt, or incurring the obligation for which the action is
brought, or in concealing or disposing of the property for the taking,
detention, or conversion of which the action is brought. 5. When the
defendant has removed or disposed of his property, or is about to do
so, with intent to defraud his creditors.
Attachment. The plaintiff, at the time of issuing the summons
or afterwards, may have the property of defendant attached in an
action upon a contract, express or implied, for the direct payment of
money, and, 1, which is not secured by mortgage, lien, or pledge upon
real or personal property, or if so secured, when the security has been
rendered nugatory by the act of the defendant; or, 2, against a non
resident defendant. The writ issues whenever the plaintiff, or any
one in his behalf, files an affidavit showing that defendant is indebted
to plaintiff (specifying the amount of indebtedness over and above all
legal set-offs or counter-claims) upon a contract, express or implied,
for the direct payment of money; that the payment has not been
secured by mortgage, lien, or pledge upon real or personal property;
and that the sum for which attachment is asked is an actual, bona fide,
existing debt due and owing from plaintiff to defendant: and that the
attachment is not sought nor the action prosecuted to hinder, delay,
or defraud any creditor of the defendant. Plaintiff must also file an
undertaking, with one or more sureties, in a sum not less than one
hundred dollars, and equal to the amount for which he demands
judgment, conditioned that plaintiff will pay all costs adjudged and
all damages sustained by reason of the attachment if the same be
wrongful or without sufficient cause, not exceeding the amount
specified.
Chattel Mortgages. Any interest in personal property, capa
ble of being transferred, may be mortgaged; but the mortgage is void
as against creditors and subequent purchasers and incumbrancers in
gooa faith and forvalue. unless possession of the property be delivered
to and retained by the mortgagee or the mortgage provide that the
property mav remain in the possession of the mortgagor and be
accompanied by the affidavit of all the parties thereto that the same is
made in good faith to secure the amount named therein, and without
design to hinder, delay, or defraud creditors, and be acknowledged
and filed. The mortgage must be acknowledged by the mortgagor
as a conveyance of real property is and be filed in the office of the
recorder of the precinct where the mortgagor resides and of the pre
cinct where the property is. 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 where the
original was filed, and the lien is thereby extended another year. Chattel
mortgages are foreclosed in 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 the
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 in Alaska; to acquire, hold, and operate mines in
Alaska; to carry on the fishing industry in Alaska and the waters
adjacent and contiguous thereto j 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, transporta
tion, agriculture, lumbering, and manufacturing in Alaska.
Foreign Corporations. Every corporation or joint stock company
organized 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 for 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.
Deeds. A conveyance of lands, or of any estate or interest therein,
may be made by deed, 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 the grantor could convey by deed of bargain
and sale. No covenants are implied in any conveyance. The term
“heirs,” or other words of inheritance, are not necessary to create o
BANKING AND COMMERCIAL LAWS—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. Within 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
of 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. o,
the testimony is required upon a motion, or m 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 in 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 if there
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 it lntestate leave no wife nor husband, to his or her father. 3. It intestate
leave no lineal descendants, neither husband nor wife, nor lather,
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 supn
brothers and sisters. 4. If intestate leave no lineal descendants,
neither husband nor wife, nor father, brother, nor s’ster, such rea.
property descends to his mother, to the exclusion of the issue o
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, excep 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 leave one or mor
children, and the issue of one or more deceased children, anda
such surviving children die under age without having heen marri ,
all such real property that came to such deceased child by ’““fj*
f
from such intestate descends in equal shares to the other chi
such intestate and to the issue of any other children 'who ha
•
by right of representation. But if all the other children of I . ,
be dead, and any of them have left issue, such real property
.un
ited by such deceased child descends to all the iasu®,
j
children of the intestate in equal shares, if they are ini the sa
Kr
of kindred to such deceased child; otherwise, they take by g
representation. 7. If intestate leave no lineal descendants or kindred,
such real property escheats to the United States.
Divorce, A marriage prohibited by law on
guinity of parties, or on account of either havinga for
or wife then living, is, if solemnized within the Distric ,
- ee;n.
void, and for any of such causes may be declared void f
£
ning, at the action of either party.
The dissolution of the marriage contract may be declared at the
action of the injured party for either of the following c - • •
potency existing at the time of the marriage and co
of felony,
commencement of the action. 2. Adultery. 3. Con
inhuman
4. Willful desertion for the period of two years. 5.Cruel and mhuman
treatment calculated to impair health or endanger 1 ■ .
gross drunkenness contracted since marriage and c>
, be an
year prior to the commencement of the action P^^th^lnd fm
inhabitant of the district at the commencement of the action an
two years prior thereto. Neither party may
? tnT takinz an
until the action is determined upon appeal or the ti
appeal has expired.
,
Dower and Curtesy. The widow of every ^ceased .^pernon
is entitled to dower, or the use during her natural li
estate
in value of all the lands whereof her husband died seized ot an e.tate
of inheritance.
. ,. ,
. . »
When any man and his wife are seized in her
0
tke
inheritance in lands, the husband, on the dea
although such huslands for his life as tenant thereof by the curtesy although sucn nusband and wife may not have had issue born alive.
Evidence. No person may be excluded as a wclt?®ssQ°n a®°°g^ngs
being a party or interested in the_event of
mattersPof religious
having been convicted of a crime, or his
,
vears of aze
belief Persons of unsound mind and ^‘^ren under Un yeare^t age
who appear incapable of receiving just
P ,
trulv may not
respecting which they are examined or of r
g Pi;ent’s consent be
be witnesses.
him
or hismaking
advice
examined
as to An
commumcatioiis made by
oy his clientoftothe
person
thereon A priest may
confession made to him in his
profess" ,^; capaceiteyain ’t he c“me of discipline enjoined by the church
as toCVn?orlSionaXuired in attending the patient which was neces
sary to enable him to prescribe or act.
Executions. (.See Judgment and Execution.}
Executors and Administrators. When a
n^uTo^
1293
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 of
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 dollars; 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: Ten 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 erf such homestead be
married, the mortgage must be executed by husband and wife.
Garnishment.
(See Attachment.}
Interest. The legal rate 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,
by 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 in 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 all
the real property of the defendant within the recording district or
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.
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 must
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 other person
performing labor upon or furnishing material of any kind to be used
in the construction, development, alteration, or repair, either in whole
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, or constable, upon a
liability incurred by the doing of an act in 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 forfeiture
where the action is given to the party aggrieved, or to such party and
the United States, except the statute prescribe a different limitation.
Within two years—action for libel, slander, assault, battery, seduc
tion, false imprisonment, or for any injury to the person or rights of
another not arising on contract; upon a statute for a forfeiture of
penalty to the United States. Within one year—action against the
1294
BANKING AND COMMERCIAL LAWS—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.
Married Women, 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 n arried 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 pri/na jade 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.
Mortgages. 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. Foreclosure is by action of
an equitable nature in which a deficiency judgment may be had.
Notes and Bills of Exchange. 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.
Records. 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.
A commissioner is ex-officio recorder of a recording district, the boun
daries 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.
Replevin. 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.)
Supplementary Proceedings, (See Judgment and Execution.)
Taxes, 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 salteriee, 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
ower on inland waters ana ocean and coastwise vessels doing local
usiness 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 iumber 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.
Wills. 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 pre
siding 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 within the district.
SYNOPSIS OF THE LAWS OF ARIZONA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by E. S. Clark, Attorney at Law, Prescott.
Accounts. When stated draw interest; when action is upon
itemized account and affidavit of party, his agent or attorney is
attached, stating that such “account is, witnin affiant’s knowledge,
just and true, tnat it is due, and that all just and lawful offsets,
claimants, and credits have been allowed,” is prima facie evidence,
unless one day before trial, defendant files written denial of any item
under oath.
Acknowledgments. Married women, men, and attorneys, in fact,
use this form; On this day, before me, ................. a notary public
in and for said county and state, personally appeared.........................
known to me to be the person who subscribed to the foregoing instru
ment and acknowledged to me that the instrument was executed
tor the purpose and consideration therein expressed.” If executed
by the officers of a corporation for the corporation, it should con
clude with the words: “As the free act and deed of said corporation
by each of them voluntarily executed.” Certificate must show date
of expiration of officer’s commission. Instruments relating to property
rights must be acknowledged before recording.
• iA?tioS,S- , .Distinction in forms between law and equity are abol
ished. Pleadings are: Complaint and answer, and in some cases a
reply.
Administration of Estates. Lie in Probate Court. No public
administrator. \\ here person dies intestate letters shall issue.
Affidavits. May be taken'from any officer authorized to take
acknowledgments, including judges, masters in chancery, and others.
Aliens. 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 coutse 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; may hold lots in incorporated
cities or towns.
Appeals. 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.
Arbitration. There are statutory provisions which are not
exclusive of the common law arbitration.
Arrest. Abolished in civil cases, debtor fraudulently'removing
property out of territory or concealing it may be prosecuted criminally
Attachment. 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 in this Territory, and that the payment of the same has not
been fully secured by mortgage, lien, or pledge of personal property,
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,
although plaintiff s debt or demand be not due under specified facts of
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.
Sureties can be compelled to justify upon notice. When more than
one attachment is levied on same property writs take priority accord
ing to time of levy. (See Liens, Garnishment.)
Banks and Banking. Banks of discount and deposit (but not
of issue) may incorporate under the statute relating to corporations
in general, which title see. Banking business may be carried on
by individuals or firms, or by corporations organized for that purpose.
Banks—Savings and Loan. May be incorporated to loan and in
vest property. May hold lot and building in which business is carried
on to value of 8100,000; 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
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.
Bills and Notes. The negotiable instrument code adopted by the
American Bar Association is in force Joint obligor may be released
without releasing others. (See Holdings.)
Bonds. 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.)
Chattel Mortgage. To be valid 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
aent of the debt secured, and be accompanied by the affidavit of
mortgagor and mortgagee that the mortgage is bona fide and
made without design to defraud or delay creditors. Immediate
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 shall within one month record his
mortgage in such other county.
Chattel mortgage may be fore
closed in justice court if amount of debt does not exceed $300; other
wise in district court. Mortgagee may obtain possession of property
on default and sell after notice which must be served on owner. Upon
stock of goods, wares, and merchandise with continued possession in
mortgagor, void. If copy is filed with recorder, original must be
acknowledged, and copy certified to by county recorder.
Claim and Delivery. (See Replevin.)
Collaterals. No statutory provisions—common law prevails.
Community Property. (8es Conveyances.)
E
BANKING AND COMMERCIAL LAWS—ARIZONA.
Conditional Sales. Where title remains in vendor until purchase
price is paid, void as to persons not parties thereto, and persons
without notice, unless subscribed, acknowledged, and filed with
county recorder.
Contracts. (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.
Conveyances. Conveyances of estate in lands for term more than
one vear 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
by both husband and wife except as to unpatented mining claims.
Deeds must be signed and must be acknowledged before some officer
authorized to take acknowledgment, 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 seventeen years of age and upward may convey their
own lands without being joined by their husbands. (See Acknow
ledgment, Dower, Husband and Wife, Homestead.)
Corporations in General. 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 incorporation which shall be
signed and acknowledged by them, and be recorded in the office of the
county recorder of the county where the principal place of business is
to be and a certified copy in the office of the territorial auditor. 1 he
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. By what officers or persons tne 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, which must
not exceed two-thirds of its capital stock. 7. Whether private
property is to be exempt from corporate debts. Lnless so exempted
stockholders are liable for the debts of the corporation m the pro
portion 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 tiled
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, including 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, 7o cents, terri
torial auditor’s fees, filing cost copy, $10. Printers’ fees per meh, pub
lishing articles six days, 80 cents. Territorial auditor s fees, 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).
Corporations, Foreign. 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.
Corporations, Insurance. - May be organized under provision
peculiarly applicable to insurance companies.
Corporations, Railroad. Are organized under a statute especially
providing for them.
Corporations, Savings and Loan. (See Banks and Banking.)
Corporation Stock, Transfer of. 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 or 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. Plaintiffs who are non-residents, or those who own no property
upon which execution may be levied are required to give security for
within ten days after order made; bonds for, must authorize judgment to
be entered against sureties.
Courts. Are the Supreme Court of the Territory, the U.S. district courts
of the five judicial districts, the district court for each County, the
probate court for each County, justices of the peace reorders of ones.
The district court of the several counties is a court of
tion both civil and criminal. It has both original and appellate j urisdic
tion. Its ordinal jurisdiction extends to all civil cases where the amount
Involved exceeds $100 exclusive of interest, and in all cases mvolvin the
title to or possession of real estate. Justice conrte
Jv-ceDt when title
tion when amount in controversy does not exceed $300, except hen title
to real estate is involved. (See Jurisdiction.)
Creditors’ Bills. No statutory provisions.
Days of Grace. ^None.
Denositions Denositions maybe taken on commission or by stipiX bei e inr Officer authorized to take acknowledgements of
eeds The office? shall certify that the answers of the witness were
hmed and sworn to before him; and shall seal them up in an envelope,
Ser with the commission and interrogatories and cross-mterrogairies if any and shall write his name across the seal and indorse on the
u any, nuu 01
___ tn the suit, and of the witnesses, and
kil orbv h“n^ If sent by mail, the posimaster or his deputy shall inwse thereon that he received them from the hands of the officer before
hom they were taken The deposition of a party to action may be taken
id his statements may be controverted.
Descent Hid Distribution. (See SavingsBanks). The law of comunityproperty prevaik! The separate estate of an intestate when he or
ie shall dieleaving surviving no husband or wife.shall descend as provided,
thin anJnSteleavM surviving a wff
another method is
•ovided. Children of the intestate’s brothers, sisters, uncles and aunts,
ke per capita. All property belonging to the community estate of the
I
:
j
i
1295
husband and wife shall go to the survivor, if the deceased spouse have no
child or children; if the deceased have a child or children, his or her sur
viving spouse will take one half, and the other half goes to such child or
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 fiom
the mother and transmit estates as if legitimate. The statute provides for
the adoption of heirs. (See Dower, Husband and Wife, Homestead.)
Divorce. Plaintiff must be a bona fide resident of Territory for one
year, and in county for six months. Grounds: Adultery; physical incom
petency 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 lestb
j 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 the fact is then unknown to hus
band. Habitual intemperance: Alimony and counsel fees may be
' allowedpendentelite,; corroborating evidence must be produced. Division
of community property may be allowed.
i
Dower. Dower is abolished.
Evidence. 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 may be read. Certified copies
of records of all notaries may be read. Court may order inspection or
copy of documents.
Executions. Upon a judgment of district court, executions may he
issued to any county. Lien of dates from levy, and if on real property
the description is endorsed on execution and filed with county recorder.’
A range levy may be made upon all of stock under a certain brand in same
manner as upon real estate. (See Judgment, Liens.) Proceedings supple
mental to execution—when returned 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 surrender property. Court or judge may order
suit brought to determine the denial of owning or of having property.
Exemptions. Every head of a family is entitled to homestead not
exceeding $2,500 in value in one compact body, upon filing affidavit des
ignating such homestead in the office of the county recorder of the county
iu which the land is, and every family $500 worth of personal property.
The head of family allowed one-half earnings during thirty days next
before service of garnishment on proof same is necessary for support of
family. (1907.) Officer levying writ of attachment or execution must
notify debtor to select exempted personal property. (See Homestead, Liens.)
Frauds and Fraudulent Conveyances. Agreements must be in
writing and signed by the parties to be charged: 1. By an executor or
administrator 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, j udgment, 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 he 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, iactor, 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.)
Garnishment. 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 in an independent
proceeding. (See Attachment.)
Holidays. Legal holidays are January 1, February 12, February 22,
July 4, Tbanksgiving, May 30, December 25, Arbor day, every Sunday, and
genera! Territorial 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 othet
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 12, February 22
July 4, December 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’
1296
BANKING AND COMMERCIAL LAWS—ARKANSAS.
Homestead. Deed to, must he signed by husband and wife. (See
Exemptions.)
Husband and Wife. 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 be 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 lrom 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 of 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 Dower, Conveyance.)
Injunction. Is issued, where party is entitled to relief and restraint,
is required of some prejudicial act; where, pendiug 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, except to restrain collection of money judgment,
when it must be double the amount of such judgment.
Insurance. 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.
Interest. May contract, in writing, for any rate of, not exceeding
12 per cent per annum. Any rate exceeding this is usurious. 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.
Judgments. 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 iu 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.
Judicial Bonds. (See Bonds.)
Levy. (See Executions.)
Licenses. For gambling prohibited.
Liens. All persons who may labor or furnish materials in the con
struction or repairing of any building, superstructure, canals, dams, mines,
or other improvement, or cuts cord wood, 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 of 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 owing the debt,
or his agent. Laborers’ and like liens arepreferred to all subsequent liens,
mortgages, aDd incumbrances, and suctfffes 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 of 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 bagage deposited with them by guests for price of guests’entertainment.
.gister and liverymen have lien by statute. (See Judgment, Mortgage.)
Limitations. 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; ail 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 of 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.
Mines 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 of a shaft 4 x fix 10 feet deep, or its equivalent in an
open cut so that mineral 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.
Minors. (See Savings Banks.)
.Mortgages. 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 of real estate. (See Conveyances, Chattel Mortoaqt,
Acknowledgments, Redemption.)
<
5
Notary Public. 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.
Notes and Bills of Exchange. (See Bills and Notes.)
Partnerships using fictitious name may file certificate showing
names of partners with county recorders. Foreign partnerships may do so.
Powers of Attorney. No special statutory provisions relative to.
To 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.
Probate Law. (See Savings Banks and Administration of Estates.)
Protest. Liability of drawer or indorser of bill or note may be fixed
by regular protest and notice, etc., according to the usages and custom of
merchants. (See Bills and Notes.)
Records. The district and probate courts of each county are courts
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 are notice of all
brands and marks of live stock.
Redemptions. From sheriff or judicial sales, six months, by
debtors or successors in interest; any lien holder may redeem within
three months thereafter by serving and filing statutory notice, by serving
notice in five days after end of said six months. The same rule applies to
foreclosure of mortgages and trust deeds whether by court or under
powers of sale.
Replevin. For possession of specific personal property which has
not been seized under any process, execution or attachment against the
property of the plaintiff.
Sales. The “ uniform sales law ”,is in force.
Seals. Addition or omission of seals or scrolls to instruments of
writing in no way affect the force and validity of the instrument. Instru
ments executed by corporations must have a corporate seal attached.
Service. All summons upon persons shall be personal, or by leaving
a copy with copy of complaint at the usual place, of residence of defend
ant, 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.)
Taxes. 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 third
Monday of August in each year. The lien attaches on the first Monday of
February in each year. Taxes become due not later than the third Monday
in September, and become delinquent if not paid on the third Monday of
December. The penalty for delinquency is 5 per cent. Within SO days
after delinquency action may be commenced in district coprt 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.
Warehouses. Personal property in, may be sold for unpaid charges.
Transfer of Corporation Stocks. (See Corporations.)
Wills. 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 dnly authenti
cated, may be probated here. Contests of wills can not be initiated
after one year from date of probating.
,
SYNOPSIS OF THE LAWS OF ARKANSAS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Revised by Messrs. B. 8. & J. V. Johnson, Attorneys and Counselors at
Law, Little Rock. (See Card in Attorneys' List.)
Accounts verified by the plaintiff as just and correct prove themselves
in suits thereon unless denied under oath.
Acknowledgments 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.
Actions. Suits ar>’ 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.
BANKING AND COMMERCIAL LAWS—ARKANSAS.
Administration of Estates. Executors and administrators must
be residents of 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 oneyear. 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 bvhim may be presented to the pro
bate court, or sued upon in any court of competent jurisdiction.
Affidavits 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, notary public, justice of the peace or commissioner for this State.
Aliens may hold and transmit property in all respects as residents.
Arbitration. 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.
Arrest. Defendants may be arrested for debt only w’hen the plaintiff
files 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 in 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 plaintiff’s claim. Bond must be given
conditioned to pay the defendant all damages that he may sustain if
wrongfully arrested.
Assignments for 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. I he 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.
Attachments may be sued out where the defendant is a foreign
corporation or non resident, or has been absent from the State 'pur
months, or has left the State with intent to defraud his creditors, or has
left the county of his residence to avoid the service of summons, or con
ceals himself so that summons can not be served on him, or is about to
remove or has removed a material part ol 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.
It is obtained by filing an affidavit stating the nature of the plain
tiff’s claim, that it is just, its amount and the existence of the ground, and
by giviugbond conditioned to pay all damages the defendant may sustain
if the attachment ie wrongfully sued out. The defendant is iallowed to
traverse the attachment, and the affidavit and traverse then standm
pleadings upon w hich the issue ie 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 propertv may
*'oad “
the same action. Attachments may be sued out before thedebt is due
where the defendant has sold, conveyed,
otherwise disposed of his
property, or permitted it to be sold with the fraudulent in;e tto
cheat, hinder or delay his creditors, or is so to do, or is'abont °
.
his property, or a material part thereof, out of the State with the intent
of cheating, hindering or delaying his creditors.
Banks. Banking may be carried on by individuals or by corporations
organized under the general incorporation lawof the SUte.or by nat o a
banks. The State laws prescribe no special regulations for hiking.
Officers and employes of banks are criminally liable for making false re
ports, and for receiving deposits know’ing bank to be insolvent.
Bills of Exchange and Promissory Notes. No person can be
charged as an acceptor of any hill of 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/^ person1 o whom
such acceptance shall have been shown and who, on the faith thereof
shall have received the bill for a valuable C0U8.lderQatl2"pp,^r^
,he
of a bill presenting it for acceptance may require an acceptance on the
hill; otherwise the bill can be protested for ,non;a®^P“nce. ISotwithstandiug the above provisions any one promising to accept a bill is liable
to any person to whom a promise to accept it may have been made; and
who, on the faith of the promise, has drawn and neS^®ted the b 11 Any
person on whom a bill is drawn, and to whom the sanie ® V *>e delivered
for acceptance, who shall destroy it or refuse withi it
y
or such time as the holder may allow to retur“
'hiH
or“°‘
accepted to the holder, shall be deemed to have accepted the same
following are the holidays:
Chri8tmM,t
The
y>
Washington's Birthday, Lee’s Birthday, January 19th. and the first Satur
day of March each year, Arbor Day and q’hauksgiving day. When the bills
become due on any of these days: they arc . payable the next dav precedina
Rut the holders need not Rive the notice of dishonor until the next
day aH^s^ch^hoHtUy^Th^foHowing damages are allownd where a bill
is protested for non-acceptance or nw?5,ay“®1,’,;_ ,{£of Mabama
any place in this State, two per cent; if Pay®ble in the States of Alabama,
Louisiana Mississippi, Tennessee, Kentucky, Ohio, Ind ana, 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 centjjif^beyondthe Jimits of the
United Statei
place within 1
^p.VcSu iVdrawn b^ any”p^r"son wiihout the limits of the United
States 10 Der cent The holder of any bill protested for non-payment or
nmiacceptanceAt.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.
Theterm B&I of Exchange includes all drafts or orders drawn by one
nerson on another for the payment of a sum of money specified therein.
Sills and notes given for patented machines, implements, substance, or
instruments of anv kind given to any citizen of this State, are not com
mercial paper, unless executed on a printed form, and showing for what
1297
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 fol
low law merchant.
Bills of Lading. {See Warehouse Receipts and Bills of Lading.)
Collaterals are governed by the law merchant.
Contracts touching commercial matters are governed by the law
merchant.
Conveyances may be either witnessed by two witnesses or acknowl
edged. {See Acknowledgments.) If witnessed they are proved by the
oath of two witnesses, and are then entitled to record as though acknowl
edged. Dower can be relinquished only by the wife joining the husband.
The wife may convey property acquired since October 30, 1874, by deed
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
endorsement in the office of the secretary of State. The stock can be
transferred only upon the company’s books, and a record of the transfer
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. “Before any corporation, foreign or
domestic, can do any business in this State, an annual franchise tax
must be paid to the Slate Treasurer, to-wit: Where the capital stock is
more than $25,001). and not over $100 000, $25.00 tax must be paid; where
the capital stock is more than $1(10,000, and not over $500,000, $50 00 must
be paid; where it is over $500,000 and less than §1,000 000. $100.00, tax is
required; and every corporation having an authorized capital stock of
more than one million dollars, $200.00 must be paid.”
Foreign Corporations shall, before doing business in the State, by
its president file in the office of the secretary ol 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 thd 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 stale in the office of the secretary
of State, and in the office of the county wKere 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 director- consenting that serviae of pro
cess on any of its agents or on the secretary of Stare 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 flue 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.
Courts. The supreme court is held at Little Rock and has jurisdic
tion of appeals from the circuit and chancery courts. In all counties
separate courts of chancery have been established. The estates of de
ceased 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.
Days of Grace {See Bills of Exchange, Promissory Notes.)
Deeds. {See Acknowledgments and Conveyances.)
•
Depositions 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. Illegiiimaie children inherit and transmit an
inheritance from the mother in the same manner as if legitimate. If the
parents of illegitimate children subsequently intermairy 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
fromwhom it was derived. Relations of the half blood inherit equally
Heirs take as tenants in common.
H
Divorces 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 crimefifth, habitual drunkenness lor one year; cruel and barbarous treat
ment, or such indignities as render the plaintiff’s condition intolerable-
1298
BANKING AND COMMERCIAL LAWS—ARKANSAS.
sixth, adultery. Proceedings must be had in the county where the plaintiff
Married Women. The property, real and personal, of married
resides and the plaintifE must have resided in the State one year before
women remains their separate estate as long as they choose, and may be
the commencement of the action, and must show that the cause of divorce
devised or conveyed without the husband's assent, and is not subject to his
occurred in this State or was a ground for divorce in the State where it
debts. If she dies without making any disposition of her real estate, he is
occurred, unless plaintiff was then a resident of this State, and that the
entitled to curtesy. She may carry on any business or perform any services
cause of divorce occurred within five years before the beginning of the
on her own account, and her earnings are hers, and she may sue alone in
suit. Claims for alimony may be asserted either in the suit for divorce or
respect of her separate property. She can bind herself by contract only
by a separate action. Upon a divorce each party is required to surrender
In reference to her separate estate or business. She can not enter into
to the other all property acquired from the other, and if the wife procures
partnership with her hnsband. If she does not file a schedule of her
the divorce she takes one-third of the husband’s real and personal prop
personal property, the burden of proof is on her to show that it is hers.
erty.
Mines and Mining. Under control of commissioner of mines. All
Dower. Where there are children the wife takes one-third of the
documents relating to mines must be recorded in the recorder’s office of
husband’s personal estate absolutely and one-third of the real estate of
the county; and miners of the county may make by-laws regarding the
which he was seized at any time during the marriage, for life. Where
time, manner, and amount of work necessary to hold claims and other
there are no children she takes in a new acquisition one-half of the real
rules and regulations not in conflict with law. Extensive provisions are
and personal estate absolutely as against heirs, or one-third absolutely as
made for the protection of the health and safetv of miners. Acts 1893, p.
against creditors. If it is an ancestral estate she fakes one-half for life
213. Miners have a lien on the output, machinery, and tools used to secure
against heirs and one-third for life against creditors.
payment for work done. Three years’ possession of a mine, with work
required by law, gives possessoiy right.
Executions from the circuit court are returnable in sixty days; those
from justices’ courts within thirty. They may be stayed for six months
Mortgages are not liens as against any one, though such person
by giving bond. They are a lien on the property of the defendant in the
has actual notice of their existence, until they are acknowledged in
county from the time they come to the officer’s hands. The officer before
the form prescribed and filed for record. Mortgages ol real estate
levying on personal property, the title to which is doubtful, may require
are recorded in the county where the land lies, and mortgages of
the plaintiff to give him an indemnifying bond, and then suit must be
personal property in the county of the mortgagor’s residence. If the
brought by the claimant upon the bond. The defendant and other judg
mortgagor of personalty is a non-resident the mortgage is recorded in the
county where the property is situate. Sales under mortgages and deeds
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
of trust can be made only after appraisement, and the property must bring
ceed by bill of discovery against the defendant and examine him on oath,
two-thirds of the appraised value. In case it is offered and fails to bring
and enforce a surrender of concealed property by imprisonment.
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.
Exemptions. Unmarried persons are entitled to $200 and married
The mortgagor of real estate has one year from the date of sale in which
persons and heads of families to $500 in selected articles of personal
to
redeem.
In action to foreclose a mortgage, it is sufficient defence that
property as exempt against debts by contract. Persons who are married
the debt, (which it recites,) is barren by statute of limitations.
or heads of families are entitled to a homestead as against all debts,
Chattel Mortgages, may be acknowledged and filed as other mort
except the purchase-money, specific liens, laborers’and mechanics’ liens,
taxes and claims for trust funds converted. The homestead in the
gages, or they may be endorsed “This instrument is to be filed but not
country is not to exceed 160 acres, and in town not to exceed one acre, nor
recorded,” signed by the mortgagee, and may then be filed in the recorder's
to be worth more than $2,500, but the country homestead is not to be
office with the same effect as though recorded. Mortgages of personal
reduced to less than 80 acres nor the town homestead to less than oneproperty reserving in the mortgagor the power of disposition are fraudu
lent.
fourth of an acre, regardless of value. The homestead goes to the widow
and minor children, after the husband’s death. The homestead can only
Powers of Attorney. Lands may be conveyed by power of attorney,
be conveyed by deed in which the wife joins and which is acknowledged
which is acknowledged as deeds and recorded in the county where the
by her, and if the husband neglects to claim the homestead the wife may
lands lie.
do so.
Probate Law. (See Administration of Estates.)
Fraud. The English statute of fraudulent conveyances has been
Protests. (See Bills of Exchange and Promissory Notes.)
re-enacted in this State.
Records. (See Acknoivledgments, Conveyances, Mortgages, Chattel
Garnishments may be sued out pending suit upon giving bond in
double the amount garnished, or after judgment without bond.
Mortgages, and Powers of Attorney.)
Holidays. (See Bills of Exchange and Promissory Notes.)
Redemption. (See Executions and Mortgages.)
Husband and Wife. (See Married Women.)
Replevin. The plaintiff in replevin may file an affidavit describing
the
property, stating its value and the amount of damages he expects to
Injunctions may be issued by circuit judges, chancellors, or the
recover, his’title, that the property is wrongfully detained by the defend
judge of any court in which suit is brought. The person applying
ant. that it has not been taken for a tax or under process against plaintiff,
for the injunction must give bond as the court or judge may direct.
and that his cause of action has accrued within three years, and upon
Insolvency. Any insolvent debtor may apply to the chancery court
giving bond in double its value, the property shall be taken from the
for the appointment of a receiver, who may have all attachments dissolved,
defendant and given to the plaintiff pending the suit, unless the defend
take possession of all the debtor’s assets, and pay the proceeds, first, to
ant within two days after it is taken gives a cross-bond.
laborers and employees whose claims may have accrued within three
Revision. The constitution requires that the statutes shall be revised
months; second, to all creditors who will execute a release; and third, to
every
ten years. The last revision was in 1901.
the creditors generally.
Taxes are a lien hetween vendor and purchaser from the first Mon
Interest. The legal rate of interest is 6 percent, but parties may
day in December. They are payable between the first Monday in Janu
contract in writing for not exceeding 10 per cent. Interest exacted in
ary and the 10th of April. In case of non-payment a penalty of 25 pei
excess of 10 pet cent forfeits the debt. In computing the interest com
cent is added. Lands may be redeemed within two years by paying
missions paid to the agent of the lender are counted as interest. Where
taxes, penalty, and costs, with 10 per cent interest. Minors, lunatics, and
usury is charged the borrower may go into equity and have the debt and
securities cancelled without tendering tfc amount lawfully due. Judg- ) persons in confinement may redeem within two years after their disability
is removed. (See also Corporations.)
ments bear the same rate of interest as the obligation sued on. Judg
ments against counties bear no interest.
Testimony. (See Evidence.)
Judgments (See Interest) are liens upon the real estate of the
Transfer of Corporation Stock. (See Corporations.)
debtor in the county where rendered for three years. The lien may be
Trust Companies. Must have a paid up capital of $50,000, and in
renewed and continued for three years by scire facias. Judgments of
counties with a population exceeding 50,000, they must have a subscribed
ths United States and other courts can be made liens on lands in coun
capital of not less than $100,000. They may exercise all the powers
ties other than that where they are rendered by filing a certified copy in
commonly conferred on such companies.
the office of the circuit clerk.
Warehouse Receipts and Hills of Lading shall not be given
Jurisdiction. (See Courts)
except where the commodities mentioned are received on the premises,
Liens. Mechanics, builders, artisans, laborers, and others doing any
and are under the control of the warehouseman at the time of its issuance.
work upon or furnishing any material for any building or erection uude’r
No warehouseman shall sell, encumber, ship, or remove any such com
any contract with the owner or his agent, contractor or snb-contractor,
modity for which a receipt has bee i given without the written assent of
shall have for such work or material furnished a lien on the building or
the holder of the receipt. The same provisions cover owners and agents
improvement together with the land on which it stands to the extent of
of boats and vessels All warehouse receipts and bills of lading are
one acre if in the country; if in a city the lot or land upon which the
made negotiable by written endorsement and delivering the same as bills
erection is situated. Hotel keepers have lien on baggage and personal
of exchange and promissory notes, and no printed or written conditions,
effects of guests. Liverymen have lien on all stock ana property left in
clauses, or provisions inserted in or attached to them shall in any way
their care.
limit their negotiability or impair the rights and duties of the parties
thereto, or persons interested therein, or such conditions shall be void.
Limitations. Suits for the possession of real estate must be brought
Warehouse
receipts given by any warehouseman or other person for
within seven years, saving to minors, married women, and lunatics three
goods and other commodities deposited, and all bills of laaing given
years after their disabilities are removed. Actions for recovery of lands
by
any
earner,
boat, vessel, railroad, transportation, or transfer com
sold at judicial sales must be brought within five years, saving to minors
pany may be transferred by endorsement and delivery; and the trans
and lunatics three years after removal of disabilities. Actions for the
feree
shall
be
deemed
to be the owner of such commodities so far
recovery of lands held under tax title must be brought in two years.
as to give validity to any pledge, lien, or transfer given, made, or
Actions for forcible entry and detainer, on contracts not in writing, for
created
thereby;
and
no
property
so stored or deposited snail be delivered
trespass and for libel, within three years. Actions for criminal conver
except on surrender ana cancellation of such receipts and bills of lading,
sation, assault and battery, false imprisonment, and slander, within one
unless
such
receipts
and
bills
of
lading
have the words “not negotiable”
year. Actions on written instruments, within five years; on judgments,
plainly written or stamped on their face. A carrier may however deliver
within ten years; on bonds ol executors and administrators, within eight
to
shipper
or
consignee
goods
without
presentation
of bill of lading upon
years. In all cases, except actions for the recovery of lands, minors and
receiving from such shipper or consignee bond in double the value of
lunatics have, after removal of their disability, the statutory period in
the goods conditioned for delivery to the carrier thereafter the original
which to sue. Verbal promises or acknowledgments do not take a
bill of lading (acts 1907.) Penalties are denounced against any ware
claim out of the statute. One year is allowed after dismissal of a suit in
houseman or other person who shall violate any of the provisions of this
which to begin a new action. No person can avail himself of a disability
statute. So much of the act as forbids the delivery of propertv except
which did not exist at the time the right of action accrued. No endorse
the surrender and cancellation of the original receipt or bill of lading shall
ment of payment made by the payee or on his behalf is sufficient proof
not apply to property replevined or removed by operation of law.
to take the case out of the statute.
Limited Partnerships may consist of one or more general, and one
or more special partners. The fatter of whom shall constitute in cash a
specific amount as his share of the capital, beyond which he is not liable
for firm debts. Those forming such partnership must make and file in
office of 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.
Wills. 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 or 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
BANKING AND COMMERCIAL LAWS-CALIFORNIA.
provision for such Dsueismade 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
share. If 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 by Messrs. Dorn & Dorn & Savage, Attorneys and
Counselors at Law, San Francisco. (See Card in Attorneys' List.)
Accounts. An account is assignable, and the assignee may maintain
an action thereon, although the account is assigned merely for collection.
An action to recover a balance due upon a mutual current and open
account or upon an open book account is barred within four years.
The cause of action on a mutual account is deemed to have accrued
from the date of the last item. In the ca*e ot an open book account,
each item becomes outlawed fourjyeais after its date. (See Actions ana
Limitations.)
,
Acknowledgments. Before an instrument can be recorded, its execution must be acknowledged by the person executing it, or if executed
by a corporation, by its president or secretary, or other person executing
the same 011 behalf of the corporation, or proved by a subscribing
witness, or by judgment in an action brought tor the purpose.
The proof or acknowledgment of an instrument may be made at any
place within the State before a justice or clerk of the supreme court,
ora judge of the superior court and within the city, county, or township for
which the officer was appointed or elected, before either: (1) A clerk or a
court of record; (2, a county recorder; (S) a court commissioner; (4) a notan
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
corporation, 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-a. e
acting, they are required to have official seals. Acknowledgments taken
out of this State to be used within this State maybe taken before a
notary public, a commissioner appointed by the governor of this state, a
judge of a court of record, or in foreign countries a minister, cons ,
vice-consul, or consular agent of the United States.
Actions. All civil actions are commenced by filing a complaint, upen
which plaintiff may, at any time within one year thereafter,
have a summons issued.
The only pleadings allowed
part of the plaintiff are:
1. The complaint; 2. The demurrer
to the answer; 3. The demurrer to the cross complaint, 4. The
answer to the cross complaint; and on the part ol the defendant. •
The demnrrer to the complaint; 2. The answer; 3. The c
plaint; 4. The demurrer to the answer to the cross-complaint.
Administration of Estates. Upon the admission of a will to pro
bate, letters testamentary are granted by the supeiiorjcourt to th e ecutor 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.
In case of
intestacy, letters of administration are issued to the bona fide re
dent of ‘the state entitled thereto, in the following order. b 8“rvlUI?F
husband or wife, or some competent person named bLel“®
hJld n
dren. 3. Father or mother. 4. Brothers. 5. bisters. 6. Grandchildren.
7. Next of kin entitled to share in the distribution of the a8.
Public administrator. 9. Creditors. 10. Any person ^S^’ycouipetent.
Where the person entitled to administration is a minor~or incom put nt
letters must be granted to his or her guardian, or to any other p rson
entitled to letters of administration in the discretion of the court Bonds
for faithful performance of duty are required of an administrator ana
of an executor unless waived by the will. Notice must e grei y
administrator or executor by publication to allthe creditor«c°™? ,n
and prove their claims within ten mosths after its flrat publiMtton,
when the estate exceeds in value the sum o ten tho^andjdollars
and four months when it does not. Unless claim is appirov
the time provided for in the notice it is barrea, unless the claimant
can proveto the satisfaction ol. the court that he had no notice by
reason ot being out cl the Slate, in which case the claim may be pre
sented at any time betore a decree of distribution is^^red
hen a
claim is rejected either by the executor or a<?ministrator or the judge
the holder must bring suit in the appropriate court thereon with
three months alter the date of its rejection if it be‘ hen dwor wit inn
two months after it becomes due, otherwise the c
cf atute of LimiNo claim can be allowed which is barred by
ord^r •
tations. Claims against the estate are paid m the .tollowmg or.tr.
1. Funeral expenses; 2. The expenses of theJust «ckness, 3 Debts
having preference bv the laws of the United States, 4. Judgment
rendered against the’ decedent in his lifetime, and mortgages in the
order of their date; and 5, all other demands against the estate.
Affidavits An affidavit to be used before any court, judgejorofficer
betoken before any office,„,*e“£'„*f
oaths. In this State every court, every judge
an^co^
justice and everv notary public, and every officer or person authorized to
lakeSimon tin any a&Fon or proceeding or decale upon evidence. has
power to administer oaths and affirmations. An affidavit taken in anoiner
State of the United States to be used in this State, may be taken before a
commissioner appointed by the governor of this !State“d
depositions in such other State, or oefore any notorjpublie 11n apother ‘
or before anv clerk of a court of record having a seal. An affidavit taken
?n a foreign country to be used in this State, may be taken before an am
bassador Minister' consul vice-consul, or consular agent of the United
See, oV Wore ^rclerk of a court of record having a seal, in such
foreign country.
Aliens. Any alien may take, hold, and dispose of property, real or
personal, within this State. Resident aliens may take in all cases by suc
1299
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.
Arbitration. 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. If the submission
is not made an order of the court, it may be revoked at any time
before the award. All the arbitrators must act, but a majority governs.
Their award must be in writing, signed by a majority of them, and de
livered 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 expira
tion of five days, in the judgment book, and thereupon it has the effect
of a judgment.
Arrest. In an action for the recovery of money upon a contract, express
or implied, the defendant may be arrested if about to depart from the
State with intent to defraud his creditors, upon order of court based
upon affidavit therefor, also in an action 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 actions
to recover the possession of personal property where it has been con
cealed or removed or disposed of to prevent its being found: also in
cases where the defendant has been guilty of a fraud in con reeling the
debt or obligation for which action is brought; or in concealing or
disposing of property; also when the defendant has removed or dis
posed of his property or is about to do so with intent to defraud
creditors.
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.
Attachments maybe issued at the time of or any time after the issu
ing the summons. All property not exempt from execution may be attach
ed. An attachment lien upon real property continues for three years and
may be extended for two years more. The clerk of the court must
issue the writ of attachment upon receiving an affidavit by or on behalf of
the plaintiff, showing, <11 That the defendant is indebted to the plaintiff,
specifying the amount of such indebtedness over and above all legal set-offs
or counter-claims, upon a contract, express or implied, for the direct pay
ment of money, and that such contract was made or is payable in this
State, and that the payment of the same has not been secured by any
mortgage or lien upon real or personal property, or any pledge of personal
property, or, if originally so secured, that such security has. without any
act of plaintiff, or the person to \Vhom 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 iojnryto property in this State in coneeqnence 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 under
taking, and that if the attachment is discharged on the ground that the
plaintiff was not entitled thereto, the facts required in the above not beinoexistent, 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.
Banks. The business ot 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 he a special copartnership.
A hanker 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. Banking business in this State
is conducted under the supervision and inspection of a superintendent
of banks, to whom banks must submit at stated intervals for exam
ination (and the expenses of whose office are borne by the banks
operating in this State, proportionate to their aggregrate deposits),
and from whom an annual license to do banking business must be
obtained. A bank may do a commercial savings or trust business,
the required capital being in the case of a savings bank, $25,000; a
commercial bank, $25,000: a trust, $200,000. One bank may do
two or more of the different kinds of business if same are conducted
in different departments and sufficient capital is subscribed therefor.
A bank organized under the laws of another State must comply with
all the requirements of the law of this State, and must designate
the State superintendent of banks its agent for service of process.
Every person engaged for himself, or any person being the
cashier, manager, or agent of two or more persons, not incorpor
ated, engaged in the business of banking in the State must apply
for and take out a license for such privilege, and shall be sub
ject to the same requirements, limitations, liabilities, penalties and
provisions as incorporated banks or banking corporations, and must
conduct said business under a name which shows the true name of
all persons engaged therein. Private banks are included in the terms
“banks or banking corporations.”
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
1300
BANKING AND COMMERCIAL LAWS—CALIFORNIA.
Bills and Notes. Negotiable Instruments. A negotiable instrument
Corporation*. Private corporations may be formed by the volun
is a written promise or request for the payment of a certain sum of money
tary association of aDy three or more persons, in the manner prescribed
to order or bearer. It must be made payable in money only to a person
by statute. A majority of such persons must be residents of this
ascertainable at the time the instrument is made, and without any con
State. Private corporations may be formed for any purpose for which
dition not certain of fulfillment. It may be with or without date, i individuals may lawfully associate themselves. The number of direc
and with or without the designation of the time or place of payment. It
tors of corporations for profit, except those above mentioned as ex
may contain a pledge of collateral security, with authority to dispose there
cepted, may be increased or diminished, by a majority of the stockholders
of. Bills of exchange, promissory notes, bank notes, checks, bonds,
of the corporation to any number, not less than three, who must be mem
and certificates of deposit are negotiable instruments. Any date
bers of the corporation. A certificate of such number must be filed howmay be inserted by the maker of a negotiable instrument, whether j ever. A copy of the articles of incorporation, certified by the secretary of
past, present, or future; and the instrument is not invalidated by his
State, must be filed with the county clerk of every county where the cor
death or incapacity at the time of the nominal date. Days of grace are
poration purchases, acquires or locates property, witnin” sixty days after
not allowed. Acceptances must be in writing by the drawee or by an
such purchase or location. Upon filing the articles of incorporation in the
acceptor for honor, and may be made by the acceptor writing his name
office of the county clerk of the county in which the principal business of
across the face of the bill with or without other words. The acceptance of
the company is to be transacted, a copy thereof, certified oy the county
a bill of exchange by a separate instrument binds the acceptor to one
clerk, with the secretary of State, the secretary of State must issue to the
who, upon the faith thereof, has the bill for value or other good considera
corporation over the great seal ol the State a certificate that a copy of the
tion. The holder of a bill of exchange, if entitled to an acceptance thereof,
articles containing the required statement of facts has been filed in his
may treat the bill as dishonored if the drawee refuses to write across its
office, and thereupon the pergons signing the articles, and theirassociates
face an unqualified acceptance. An unconditional promise in writing to
and successors, shall be a body politic and corporate by the name stated
accept a bill of exchange is a sufficient acceptance thereof in favor of
in the certificate, and for a term of fifty years, unless it is in the articles
every person who, upon the faith thereof, has taken the bill for value. The
of incorporation otherwise stated, or in the code otherwise specially pro
protest of a notary, under his hand and official seal, is prizzia facie evi
vided. A copy of the articles of incorporation, certified by the secretarydence of the facts contained therein. A bill of exchange, if accepted with
of State, must be filed with the county clerk of every county where
the consent of the owner by a person other than the drawee, or an acceptor
the corporation acquires or locates property within sixty days after such
for honor, becomes, in effect, the promissory note of such person, and all
purchase or location. A copy of any articles of incorporation filed in
prior parties thereto are exonerated. If a promissory note, payable on
pursuance of this chapter, and certified by the secretary of State, must
demand or at sight, without interest, is not duly presented for payment
be received in all the courts, and other places as prima facie evidence
within six months from its date, the indorsers thereof are exonerated,
of the facts therein stated. (See Foreign Corporations.)
unless such presentation is excused.
Liability of Stockholders. Each stockholder of a corporation is indi
vidually and personally liable for such proportion of its debt and
Chattel Mortgages may be made on any personal property,including
liabilities incurred while he was a stockholder as the amount of stock or
growing crops and fruit, except personal property not capable of
shares owned by him bears to the whole of the subscribed capital stock or
manual delivery, articles of wearing apparel and personal adornment,
shares of the corporation, and for a like proportion only of each debt or
and the stock in trade of a merchant. In the absence of delivery
claim against the corporation. Any creditor of the corporation may insti
and continued change of possession, the chattel mortgage will be void
tute joint or several actions agains't any of its stockholders for the proas to creditors of the mortgagor unless acknowledged or proved, certified,
and recorded, as required in cases of grants of real property and accom , portion ol this claim, payable by each, and in such action the court must
ascertain the proportion of the claim or debt lor which each defendant is
panied by affidavits of all the parties that it is made in good faith, and
liable, and a several judgment must be rendered against each in con
without any design to hinder, delay or defraud creditors.
formity therewith. If any stockholder pays his proportion of any debt
due from the corporation incurred while he was such stockholder, he i*
Collaterals. Are governed by the law relating to pledges of personal
relieved from any further personal liabilities for such debt; and if an
property. A pledge is a deposit of personal property by way of security
action has been brought against him for such debt, it shall be dismissed
for the performance of any act Delivery of the thing pledged is essen
as
to him upon his paying the costs, or such proportion thereof as may be
tial to the validity of the bailment. When the performance of the act
properly chargeable against him.
The term “stockholder” extends
for which the pledge is given is due in whole or in part, the pledgee
to every equitable owner of stock, although the same appears on the
may collect what is due to him by the sale of the property pledged.
books in the name of another, and also to every person who has advanced
But before the property can be sold the pledgee must demand per
the installments or purchase money of stock in the name of a minor,
formance thereof from the debtor, if he can be found, and must give
so long as the latter remains a minor; and also to every guardian or
actual notice to the pledgor of the time and place at which the prop
other trustee who voluntarily invests any trust funds in the’stock. Stock
erty pledged will be sold, at such a reasonable time before the sale
held as collateral security, if fact of pledge appears, or by a trustee, or in
as will enable the pledgor to attend, but notice of the sale may be
any other representative capacity, does not make the holder thereof
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 i a stockholder, except in the case above mentioned, so as to charge
him with any proportion of the debts or liabilities of the corporation;
may deduct from the proceeds the amount due and the necessary
but the pledgor, or person, or estate represented is to be deemed the
expenses of sale and collection, and must pay the surplus to the pledgor.
stockholder as respects such liabilities. In corporations having no
The pledgee, or a pledge holder, may purchase the property pledged
capital stock, each member is individually and personally liable for his
when the same is sold at public auction. A pledgee can not sell any
proportion of its debts and liabilities, and similar actions may be
evidence of debt (collateral) pledged to him, except the obligations of
brought against him, either alone or jointly with other members, to
ovemments, states, or corporations; but he may collect the same when
! enforce such liabilities as by this section may be brought against one or
ue.
more stockholders, and similar judgments may be rendered.
Contracts. The following contracts are invalid unless the same
Courts. Terms and Jurisdiction. Justices' courts have civil juris
or some note or memorandum thereof is in writing, and subscribed by
diction: 1. In actions arising on contracts for the recovery of monev, only
the party to be charged, or his agent. 1. An agreement that by its term’s
if
the sum claimed, exclusive of interest, does not amount to $300, and
is not to be performed within a year from the making thereof. 2. A
the jurisdiction of a justice of the peace in all cases where money judg
special promise to answer for the debt, default, or miscarriage of another,
ment
is recoverable is limited to $300. 2. In actions for damages for
except in certain cases, the general typ^of which is where the party
injury to the person, or for taking, detaining, or injuring personal prop
making the promise has assumed the obligation as a principal obligation.
erty,
or
for injury to real property, where no issae is raised bv the verified
3. An agreement made upon consideration of marriage other than mutual
answer of the defendant involving the title to or possession of the same, if
promise to marry. 4. An agreement for the sale or goods, chattels, or
the
damages
claimed do not amount to $300 3. In actions to recover the
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, i 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
of such things in action, or pays at the time some part of the purchase
amounting to $-300 given by statute, or the ordinance of an incorporated
money; but when a sale is made at auction, an entry by the auctioneer in
city or town, where no issue is raised by the answer involving the legal
his sale book at the time of the sale of the kind of property sold, the
ity of any tax, impost, assessment, toll, or municipal fine. 5. In actions
terms of the sale, the price, and the names of the purchaser and' person on
upon bonds or undertakings conditioned for the payment of money, if
whose account the sale was made, is a sufficient memorandum. 5. An
the sum claimed does not amount to $300, though the penalty may exceed
agreement for the leasing for a longer period than one year, or for the
that sum. 6. To take and enter judgment for the recovery of money on
sale of real property or of an interest therein; and such agreement, if
the confession of a defendant, when the amount confessed, exclusive of
made by an agent of the party sought to be charged, is invalid unless the
interest, does not amount to $300. 7. Also concurrent jurisdiction with
authority of the agent is in writing, subscribed by the party sought to be
the superior courts, within their respective townships in actions of for
charged. 6. An agreement authorizing or employing an agent or broker
cible entry and detainer, where the rental value of the property entered
to purchase or sell real estate for compensation or a commission. 7. An
upon or unlawfully detained does not exceed $25 per month, and the
agreement whieh by its terms is not to be perlormed during the lifetime
whole amount of damages claimed does not exceed $200. Also in actions
of the promisor, or an agreement to devise or bequeath any propelty, or
to enforce and foreclose liens on personal property, where neither the
to make any provision for any person by will.
amount of the liens nor the value of the property amount* to $300.
Conveyances. An estate in real property, other than an estate at
Superior Court. The jurisdiction of the superior court is of two
will, or for a term not exceeding one year, can be transferred ouly by
kinds: 1. Original. 2. Appellaie. The superior court has original
operation of law, or by an instrument in writing, subscribed by the party
jurisdiction
in all cases in equity; in all civil actions in which the sub
disposing of the same, or by his agent thereunto authorized in writing.
ject of litigation is not capable of pecuniary estimation; in all cases at
A fee simple title is presumed to be intended to pass by a grant of real
law
which
involve
the title or possession of real property, or the legality
property, unless it appears from the face of the grant that a lessor estate
of any tax, etc., and in all other case* in which the demand, exclusive of
was intended. A grant of real property may be made in the following j Interest or the value of the property in controversy, amounts to $300;
form: “ I, A. B., grant to C. D. all that real property situated in (insert
of actions of forcible entry and detainer, of proceedings in insolvency:
name of county) county, State of California, bounded (or described) as
of actions to prevent or abate a nuisance; of all matters of probate, of
follows: (Here insert description, or if the land sought to be conveyed has a
divorce and for annullment of marriage; and of all *uch special cases and
well-established descriptive name, it may be described by such name as
proceedings
a* are not otherwise provided for. They also have power to
for instance: ‘ The Norris Ranch.’) Witness my hand this (insert) day of
issue writs of mandamus, certiorari, prohibition, quo warranto, and of
(insert month), 19—. A. B.” The use of the word “grant” implies the fol
habeas
corpus on petition by or on behalf of any person in actual cuetody
lowing covenants: 1. That previous to the time of the conveyance the
in their respective counties. Injunctions and ’writs of prohibition may
grantor had not conveyed the same estate, or any right, title, or interest
be issued and served on legal holidays and non-judicial days. The
therein to any person other than the grantee. 2. That such estate is at
superior
courts have appellate jurisdiction in cases arising in justices’
the time of the execution of the conveyance free from incumbrances,
and
other inferior courts in their respective counties provided the appeal
done, made, or suffered by the grantor. Subsequently acquired title
be taken within thirty days of the judgment.
passes by operation of law to the grantee, or his successors. Instru
ments entitled to be recorded must be recorded by the county recorder
District Courts of Appeal. The State is divided iDto three appellate
of the county in which the real property affected thereby is situated.
districts each of which has a court of appeals with three justices. These
Every conveyance of real property, acknowledged or proved and certi
courts have appellate and original jurisdiction. The general line of
fied and recorded as prescribed by law, from the time it is filed with the
demarcation between the supreme court and these courts is the amount
recorder for record, is constructive notice of the content* thereof to sub
of money or the value of the property involved. The district courts
sequent purchasers and mortgagees, and every conveyance of real
of appeal have appellate jurisdiction on appeal from the superior
property other than a lease for a term not exceeding one year is void
courts in all eases at law in which the demand exclusive of interest
as against any subsequent purchaser or mortgagee of the same property, ; or the value of the property in controversy amounts to $300 and does
or any part thereof, in good faith and for a valuable consideration,
not amount to $2,000; also in all cases of forcible entry and detainer
whose conveyance is first duly recorded.
i (except such as arise in the justices’ courts); in proceedings in in
BANKING AND COMMERCIAL LAWS—CALIFORNIA.
1301
solvency, and in actions to prevent or abate a nuisance; in proceed
tesy is not known to our law. If the person dies testate, all property
ings in mandamus, certiorari and prohibition, usurpation of office,
passes as directed by the will.
contesting elections and eminent domain, and in such other special '
Divorce. A vinculo matrimonii may be decreed by the superior court
proceedings as may be provided by law (excepting in cases in which j for adultery, extreme cruelty, willful desertion, willful neglect, habitual
appellate jurisdiction is given to the supreme court); also on ques- • intemperance, or conviction of felony. A marriage may be annulled:
tions of law alone in all cases prosecuted by indictment or informa
1. If the party seeking the annullment was under the age of legal con
tion to a court of record, excepting criminal cases where judgment
sent, and the marriage was contracted without the consent of parents or
of death has been rendered. Said courts also have appellate juris
guardian. 2. If the former husband or wife of either party was living
diction in all cases, matters and proceedings pending before the su
and such marriage was in force. 3. If either party was of unsound
preme court which shall be ordered by the supreme court to be trans
mind. 4. If the consent of either party was obtained by fraud. 5. If
ferred to a district court of appeal for hearing and decision.
consent was obtained by force. 6. If either party was physically in
capable of entering the marriage state.
Supreme Court. Has original and appellate jurisdiction. In the
exercise of original jurisdiction it shall have power to issue writs of man
Executions. May issue immediately upon the entry of judgment. No
damus, certiorari, prohibition, and habeas corpus; it shall also have
right of stay exists except by order of the court in its discretion. An exe
power to issueall other writs necessary and proper for the complete exer
cution may be issued at any time within five years after the entry of the
cise of its appellate jurisdiction. The supreme court has appellate
judgment, and after the lapse of five years the judgment may be enforced
jurisdiction in all cases in equity, except such as arise in the justices’
or carried into execution by leave of court upon motion, or by judgment
courts; also in all cases at law which involve the title or possession j for that purpose, founded upon supplemental proceedings. Execution
of real estate or the legality of any tax, impost, assessment, toll or j may issue against the property of a judgment debtor after his death,
municipal fine, or in which the demand exclusive of interest or the I only if the judgment be for recovery of real or personal property, or the
value of the property in controversy amounts to $2,000; also in all j enforcement of liens thereon. Real property may be redeemed within
such probate matters as may be provided by law; also on questions ! one year, personal property not at all.
•of law alone in all criminal cases where the judgment of death has !
been rendered; the said court also has appellate jurisdiction in all ;
Exemptions. The following property is exempt from execution:
cases, matters and proceedings pending before a district court of ap- | 1. Chairs, tables, desks, and books, to the value of $200. 2. Necessary
peal which shall be ordered by the supreme_court to be transferred i household, table and kitchen furniture belonging to the judgment debtor,
to itself for hearing and decision.
including one sewing machine, stoves, stove-pipes and furniture, wearing
apparel, beds, bedding and bedstead, hanging pictures, oil paintings ana
Depositions. The deposition of a witness out of this State may • drawings drawn or painted by any member of the family, and family
be taken upon a commission issued from the court under the seal of the 1 portraits, and their necessary frames, provisions actually provided for
court, upon an order of the court, or a judge or justice thereof, on the I individual or family use sufficient for three months, and three cows and
application of either party, upon five days’ previous notice to the other. I their sucking calves, four hogs with their sucking pigs, and food for such
If the court be a justice’s court, the commission shall have attached to I cows and hogs for one month; one piano, one shotgun, and one rifle. 3.
it a certificate under seal by the county clerk of said county to the effect f The farming utensils or implements of husbandry not exceeding in value
that the person issuing the same was an acting justice of the peace at
the sum of $1,000; also two oxen or two horses, or two mules, and their
the date of the commission. If issued to any place within the United j harness; one cart or wagon, and food for such oxen, horses, or mules for one
States, it may be directed to a person agreed upon by the parties, or
month; also all seed, grain, or vegetables, actually provided, reserved or
If they do not agree, to any judge or justice of the peace or commis- • on hand for the purpose of planting or sowing at any time within the
sioner selected by the court, or judge, or justice issuing it. If issued to
ensuing six months, not exceeding in value the sum of $200, and seventyany country out of the United States, it may be directed to a minister,
five bee hives, and one horse and vehicle belonging to any person who is
ambassador, consul, vice-consul, or consular agent of the United States
maimed or crippled, and the same is necessary in his business. 4. The
in such country, or to any person agreed upon by the parties. The com
tools or implements of a mechanic or artisan necessary to carry on his
mission must authorize the commissioner to administer an oath to the wit
trade; the notarial seal, records, and office furniture of a notary public;
ness. The testimony of a witness out of the State may be taken by depo
the instruments and chest of a surgeon, physician, surveyor, or dentist,
sition in an action, at any time after the service of the summons or th«
necessary to the exercise of their profession, with their professional
appearance of the defendant; in a special proceeding, at any time after a
libraries and necessary office furniture; the professional libraries of attor
question of fact has arisen therein. Depositions must be taken in the form
neys, judges, ministers of the gospel, editors, school-teachers and musicof question and answer. The words of the witness must be written down,
teachers and their necessary office furniture; also the musical instru
in the presence of the witness, by the officer taking the deposition or by
ments of music-teachers actually used by them in giving instructions;
some indifferent person appointed by him. Itmay betaken down inshort
and all the indexes, abstracts, books, papers, maps, and office furniture
hand in which case it must be transcribed to long hand by the person who
of a searcher of records necessary,to be used in his profession; also the
took it down. When completed, it must be carefully read to or by the J typewriters or other mechanical contrivances employed for writing in
witness and corrected by him in any particular, if desired, by writing or
type actually used by the owner thereof for making his living; also one
causing his corrections to be written at the bottom of the deposition, and
bicycle when the same is used by its owner for the purpose of carrying
must then be subscribed by the witness. If the parties agree in writing to
on his regular bnsiness, or when the same is used for the purpose of
any other mode, the mode so agreed upon must be followed.
transporting the owner to and from his place of business. 5. The
cabin or dwelling of a miner not exceeding in value the sum of $500; also
Depositions in this State. The testimony of the witness in this State
his sluices, pipes, hose, windlass, derrick, cars, pumps, tools, imple
may be taken by deposition in an action at any time after the service
ments, and appliances necessary for carrying on any mining operations,
of summons or the appearance of defendant, and in a special proceeding
not
exceeding in value the aggregate sum of $500: and two horses,
after a question of fact has arisen therein, in certain enumerated cases.
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
Depositions for Use out of the State. Any party to an action or
hoisting gear, and also his mining claim, actually worked by him, not
special proceeding in a court or before a judge of a sister state, may
exceeding
in value the sum of $1,000. 6. Two horses, two oxen, or two
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- j 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
mission to take such testimony has been issued from the court, or a judge
cartman, truckman, huckster, peddler, hackman, teamster, or other laborer
hereof, before which such action or proceeding is pending, on producing
habitually
earns
his living, and one horse with vehicle and harness, or other
the commission to a judge of the superior court with an affidavit satis- ;
factory to him of the materiality of the testimony, he may issue a | equipments used by a physician, surgeon, constable, or minister of the
gospel
in
the
legitimate
practice of his profession or business, with food
subpcena to the witness, requiring him to appear and testify before the
for such oxen, horses, or mules for one month. 7. One fishing boat and
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 i 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
superior court, or a justice of the peace, by affidavit satisfactory to him:
in value $75. 9. Seamen’s and seagoing fishermen’s wages and earnings
1. That the testimony of the witness is material to either party. 2.
not exceeding $100. 10. The earnings of the judgment debtor for his per
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 ! sonal services rendered at any time within thirty days next preceding the
proceeding is pending, the deposition of a witness taken under such ' levy ol execution or attachment, where it appears by the debtor’s affi
circumstances, and before such judge or justice, will be received in the j davit or otherwise, that such earnings are necessary for the use of his fam
ily residing in this State, supported in whole or in part by his labor; but
action or proceeding, he must issue a subpoena requiring the witness to
where debts are incurred by any such person, or his wife or family for
appear and testify before him at a specified time and place. Upon the
the common necessaries of life, or have been incurred at a time when
appearance of the witness, the judge or justice must cause his testimony
the debtor had no family residing in this State, supported in whole
to betaken in writing, and must certify and transmit the same to the
or in part by his labor, the one-half of such earnings above men
court or judge before whom the action or proceeding is pending, iu such
tioned are nevertheless subject to execution, garnishment, or attachment
manner as the law of that State requires.
to satisfy debts so incurred. 11. The shares held by a member of a
homestead association duly incorporated, not exceeding in value $1,000,
Descent and Distribution of Property. Property, both real and
personal, of an intestate passes to his heirs. A surviving wife succeeds ; if the person holding the shares is not the owner of a homestead under
the laws of this State. 12. All the nautical instruments and wearing ap
to one-half of the community property, i. e., all property acquired by
parel of any master, officer, or seaman of any steamer or other vessel.
husband or wife during the marriage, which does not include property
acquired by either husband or wife by gift, bequest, devise or descent, ; 13. All fire engines, hookand ladders, with carts, trucks, carriages, hose,
which is separate property. Dower interest does not exist. The separate j buckets, implements, and apparatus thereunto appertaining; and all fur
estate is distributed as follows: If the decedent leaves a surviving has- , niture and uniforms of any fire company or department organized under
band or wife and only one child, or the lawful issue of one child, in equal j any law of this State. 14. All arms, uniforms, and accoutrements re
quired by law to be kept by any person, and also one gun to be selected
shares to the surviving husband or wife and child or issue of such child If
a surviving husband or wife and more than one child living, or one child liv
by the debtor. 15. All court houses, jails, and town, county, and State
buildings; all public buildings, grounds, places, etc. 16. All material
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- j purchased for use in the construction, alteration, etc., of any building,
dren and to the lawful issue of any deceased child by right of representa
mining claim, etc. 17. All machinery, tools, and implements necessary
tion. But if there be no child living, the remainder goes to all the lineal
in and for boring, sinking, putting down, and constructing surface or
descendants, and if they are in the same degree of kindred to the de- i artesian wells; also the engines necessary for operating such machinery,
cedent they share equally, otherwise by right of representation. If the
implements, tools, etc.; also all trucks necessary for the transportation
decedent leaves no surviving husband or wife, the whole estate goes to { of such machinery, tools, implements, engines, etc., to the value of $1,000.
the issue—the issue of children taking by right of representation. If
18. All moneys, benefits, privileges, or immunities accruing, or in any
there is no issue the estate goes one-half to the surviving husband or i manner growing out of any life insurance on the life of the debtor, if
wife and the other half to the father and mother in equal shares, or, if one
the annual premiums paid do not exceed $500. 19. Shares of stock in
be dead, to the survivor; if there be no father or mother, then their oneany building and loan association to the value of $1,000. 20. Pensions
half goes in equal shares to the brothers and sisters or to their representa
from the United States Government. No article, however, or species of
tives. If there is no issue, or husband or wife, the estate goes to the
property mentioned in this section, is exempt from execution issued
father and mother, or the survivor, or, if both be dead, then in equal
upon a judgment recovered for its price or upon a judgment of fore
shares to the brothers and sisters, and to the children of any deceased i closure of a mortgage thereon.
(For Homestead Exemptions, see
brother or sister by right of representation, if the decedent leave a sur
Homestead.}
viving husband or win?, and neither issue, father, mother, brother, nor
Foreign Corporations.
Every foreign corporation doing or
sister, the whole estate goes to the surviving husband or wife. If the
about to do business .in this State must file a certified copy of its
decedent leaves neither issue, husband, wife, father, mother, brother, nor
articles
of
incorporation,
or
of
a legislative act creating it, with the
sister, the estate must go to the next of kin in equal degree. These are
Secretary of State, and a certified copy thereof duly certified by the
the principal provisions of the law of succession. Tenancy by the cour
1302
BANKING AND COMMERCIAL LAWS—CALIFORNIA.
Secretary of this State must be filed with the County Clerk of the
County where its principal place of business is located. Every for-eign corporation within forty days from the time it commences to do
business in this State must 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; and any foreign corporation failing to comply with this
provision can neither maintain nor defend any action in the courts
of this State (See Corporations.)
Fraud. (For Fraudulent Debtors, see Arrest.) Any contract ob
tained through fraud is voidable. Cousent 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 informal ion of the person making it
though he believes it to be true, the suppression of that which is true
by one having knowledge of it, and promisee 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.
for reducing the ores from such mining claim, for the work or labor
done. The comm n carrier has a hen upon the luggage of a pas
senger for the payment of his fare. One who sells real property
has a vendor’s lien thereon. Improvers of personal property, de
positaries for hire, veterinary surgeons, livery stable keepers and
persons pasturing horses or stock, have a special lien, dependent
upon possession. Factors, banks, and laundry proprietors have a
general lien, dependent on possession, on any personal property in
their hands. Seamen have general liens, independent of possession.
Owners of animals used for propagating purposes have a lien for the
agreed price upon the offspring. Loggers rendering services upon
logs, bolts and other limber have a lien thereon, for the amount due
for their personal services.
Eveiy 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 lhe 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.
Limitations. 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: W ithin
Garnishment. Upon receiving instruction in WTiting from the
five years: (1) An action upon a judgment or decree of any court of the
plaintifE or his attorney that any person has in his possession, or under
United States, or of any State within the United States. (2) An action lor
his control, any credits or other personal property belonging to the de
mesne profits of real property. Within four years: 1. An action upon
fendant or is owing any debt to the defendant, the sheriff must serve
any contract, obligation or liability founded upon an instrument in
upon such person a copy of the writ and a notice that such credits, or
writing, executed in this State. 2. An action to recover a balance due
other property or debts, as the case may be, are attached in pursuance of
upon a mutual open and current account or upon an open book account.
such writ. All persons having any such property at the time of serving of
Within three years: (1) An action upon a liability created by statute,
such writ, unless it is delivered up or transferred or paid to the sheriff,
other than a penalty or forfeiture. (2) An action for trespass upon real
shall be liable to the amount of such credits, property, or debts, until the
property. (3) An action for taking, detaining or injuring any goods or
attachment be discharged, or any judgment by him recovered be satisfied.
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
Homestead. The homestead consists in the interest of the claimant,
action in such case not to be deemed to have accrued until the discovery
divided or undivided, in the dwelling house in which the claimant
by the aggrieved party of the facts constituting fraud or mistake. Within
resides, and in the land on which the same is situated, selected, if the
two years: (1) An action upon a contract, obligation or liability not
claimant be married, from community property, or the separate property
founded upon an instrument of writing, or founded upon an instrument
of the husband, or, with the consent of the wife from her separate prop
of writing executed out of the State. (2) An action against a sheriff,
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. I 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
The homestead can not be selected from the separate property of the
wife without her consent, shown by her making or joining the declara
official duty, including the non-payment of money collected upon an
execution; but this subdivision does not apply to an action for an escape.
tion of homestead. The homestead is exempt from execution or forced
sale, except in satisfaction of judgments obtained: 1. Before the declara
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
tion of homestead was filed for record, and which constitutes liens
State, except when the statute imposing it prescribes a different
upon the premises. 2. On debts secured by mechanics’, contractors’,
limitation. (2) An action upon a statute, or upon an undertaking in
sub-contractors’, artisans’, architects’, builders’, laborers’ of every class,
materialmen’s or vendors’ liens upon the iiremises. 3. On debts secured
a criminal action, for a forfeiture or penalty to the people of this State.
by mortgages on the premises, executed and acknowledged by the hus
(3) An action for libel, slander, assault, battery, false imprisonment, or
band and wife or by an unmarried claimant. 4. On debts secured by
seduction, or for ir jury to or for the death of one caused by the wrongful
mortgages on the premises, executed and recorded before the declaration
act or neglect of another, or by a depositor against a bank for the payment
of homestead was filed for record. In cases not enumerated above, iu
of a forged or raised check. (4) An action against a sheriff, or other
which, after a judgment has been docketed against the homestead claim
officer, for the escape of a prisoner arrested or imprisoned on civil
ant, and an execution for its enforcement levied on the homestead, it may
process. (5) An action against a municipal corporation for damages or
be shown by an appraisement applied for to, and ordered by, the court,
injuries to property caused by a mob or riot. Within six months: (1)
after proper proceedings, that the homestead exceeds in value the amount
Au action to recover property seized by tax collector. (2) To recover
of homestead exemption. Then steps may be taken, if it can be done
corporation stock sold for delinquent assessment. To actions brought
without material injury to the land, to divide the property and reach the
to recover money or other property deposited with any bank, banker,
excess The homestead of a married person can not be conveyed or
trust company, or savings and loan society, there is no limitation. If
encumbered unless the instrument by which it is conveyed or encum
when the cause of action accrues against" a person, he is out of the
bered is executed and acknowledged by both husband and wife. Home
State, the action may be commenced within the term herein limited, after
steads may be selected and claimed: 1. If not exceeding $5,000 in value,
his retnm to the State; and if. after the cause of action accrues, he departs
by any head of a family. 2. If not exceeding $1,000 in value, by another
from the State, the time of his absence is not part of the time limited for
person.
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
Husband and Wife. The husband is the head of the family. He
oned for a term less than life, or a married woman, and her husband is a
may choose any reasonable place or mefcle of living, and the wife must
necessary party with her in commencing such action, the time of such
conform thereto. In other respects thetr interests are separate Neither
disability is not a part of the time limited for the commencement of the
husband nor wife has any interest in the separate property of the other,
action. No acknowledgment or promise is sufficient to take a case oQt of
and either may enter into any engagement with the other, or with any
the operation of the statute oi limitations, unless the same is in writing,
other person, respecting propertyfwhich either might if unmarried. All
signed by the party to be charged. Part payment will not take the case
property of either, owned by him or her before marriage, and that I out of the statute of limitations. Where a cause of action has arisen in
acquired afterward by gift, bequest, devise or descent, is the separate
another State, and would be barred by the statute of limitations of that
property of such person. All other property acquired after marriage by
State, an action cannot be maintained here. There is no limitation upon
either husband or wife or both, is community property; but whenever
actions to recover money or property with banks or trust companies.
any property is conveyed to a married woman by an instrument in writing,
(See Accounts )
the presumption is that the title is thereby vested in her as her separate
Married Women. A married woman may sue or be sued, and may
property. The husband has the management and control of the commu
prosecute or defend any action or proceeding as’if unmarried. A married
nity property, with absolute power of disposal other than testamentary, pro
woman may become a sole trader by the judgment of the superior court of
vided that he cannot make a gift of the same or convey the same without
the county in which she has resided for six months next preceding the
valuable consideration, unless the wife consents in writing. The commu
application. The husband of the sole trader is not liable for any debts con
nity property is not liable for the contracts of the wife made after marriage,
tracted by her in the course of her sole trader's business unless contracted
unless secured by a pledge or mortgage thereof executed by the husband.
upon his written consent. A married woman may convey without consent
The separate property of the husband is not liable for the debts of the
of her husband, and is not liable for the debts of her husband, but is liable
wife contracted before marriage, and the separate property of the wife
for her own debts contracted before or after her marriage. She may con
is not liable for the debts of her husband, hut is liable for her own debts
tract as a., femme sole so as to bind her separate property. The wife may
contracted before or afier marriage. A husband and wife may hold prop
erty as joint tenants, tenants by entireties, tenants in common, or as com I make a will ol her separate property. The earnings of the wife are not liable
for the debts of her husband.
munity property.
Mechanics* Liens. (See Liens.)
Interest. The legal ra*e of interest is 7% and 18 due upon judg
Mortgages. Any interest in real property which is capable of being
ments afier rendition and upon other obligations unless there is an ex
transferred may be mortgaged. A mortgage can be created, renewed, or
press contract in writing fixing a different rate. The'parties may agree on
extended only by writing executed with the formalities required in the
a higher ra'e of interest and on the compounding of same, but person
case of a grant of real property. Every transfer of an interest in real
al property brokers may charge not to exceed 5% per month.
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
Judgments. (See Actions.) Upon filing the judgment roll, which is
fer was made subject to defeasance on a condition may, for the purpose
a record of the proceedings in the case, it must be docketed by the
of showing such transfer to be a mortgage, be proved (except as against
clerk, whereupon it becomes a lien upon any real property of a
the subsequent purchaser or encumbrancer for value and without notice!
judgment debtor not exempt from execution in the county, -which the
although
the fact does not appear by the terms of the instrument. A
said judgment debtor owns at that time, or which he may thereafter
mortgage is a lien upon everything that passes by a awant of the prop
acquire. This lien continues for five years, unless the enforcement
erty.
A
mortgage does not entitle the mortgagee to the possession of
of the judgment be stayed on appeal. A judgment may be revived,
the property. The assignment of a debt secured by a mortgage carries
but it is barred by the act of limitation within five years, unless re
with
it
the
security. When a mortgage is satisfied or the mortgage in
vived by leave of court upon motion. It may also be revived by an
debtedness paid, the mortgagee must satisfy the mortgage of record under
action upon the judgment.
Judgment must first be satisfied out of
penalty. A mortgagee may foreclose the right of redemption of the
property of the judgment debtor which has been attached and in the
mortgagor.
custody of the sheriff.
Notes and Bills of Exchange. (See Bills and Notes.)
Liens. Mechanics, material-men, contractors, sub-contractors, artisans,
architects, persons supplying power, and laborers of every class perform
Pledge. (See Collaterals.)
ing labor upon or furnishing material to be used in the construction, altera
Powers of Attorney. An attorney in fact may be appointed for
tion, or repair of any mining claim, building, wharf, bridge, ditch, flume,
any purpose for which an agency can lawfully be created. Powers of
aqueduct, tunnel, fence, machinery, railroad, wagon road, or other struc
attorney can only be conferred by an instrument in writing subscribed by
ture, have liens upon the property upon which they have worked or
the principal which must particularly specify the powers conferred.
If
furnished material, and any person performing labor in a mining claim
the instrument contains a power to convey or execute instruments affecthas a lien upon the same, and the works owned and used by the owners
BANKING AND COMMERCIAL LAWS—COLORADO.
mg real property, it must be duly acknowledged and must be recorded in
the county witnin 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 containing 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.
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SYNOPSIS OF THE LAWS OF COLORADO
BANKING AND COMMERCIAL USAGES.
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 in 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 of the State and was not a resident.
An inventory and appraisement is required of the executor or administrator 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 homestead 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 childrenoutof 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
81,500, the court may set apart the whole of the estate for the use and
support of the family of the deceased.
Prepared and Revised by Messrs. Rogers, Ellis &’Johnson, Attorneys
at Law, Denver. (See Card in Attorneys' List.)
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Protest. (See Bills and Notes.)
Replevin. 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 plaintifi 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 fora return of the prop
erty or for its value in case a delivery can not be had.
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_ Statute of Frauds, A will must be in writing, except a nuncnpative will. (See Wills.) No estate in land will pass other than leases not
to exceed one year, unless in writing. An agreement not to be performed
within a year from making it must be in writing; also a special promise to
answer for the debt, defraud, or miscarriage of another: also agreements
made in consideration of marriage, other than a mutual promise to marry.
An agreement for the sale of goods and chattels or things in action at a
price not less than $200, unless the buyer accept and receive part of the
same, or any part of the purchase money. An agreement authorizing or
employing an agent or broker to purchase or sell real estate for compensa
tion or for a commission. No evidence is admissible to charge a person
upon representations as to the credit of another, unless the representa
tions be in writing.
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Supplementary Proceedings. When an execution is returned
unsatisfied, the judgment creditor can obtain an order requiring the
judgment debtor to appear and answer concerning his property before
the judge or referee appointed by him; also, in case after the issuing of
an execution, upon proof by affidavit that the judgment debtor has prop
erty which he unjustly refuses to apply toward the satisfaction 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, be
arrested and required by him to give security for the judgment, or that
he will attend from time to time during the pendency of the proceedings,
and that he will not in the meantime dispose of any portion of his prop
erty, and in default of security he may be committed to prison.
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Taxes. On the last Monday of November of each year taxes become
delinquent, except the last installment of the real property taxes, and
thereafter 15 per cent is added for delinquency; provided, that if they be
not paid before the last Monday in April next succeeding, 5 per cent is
added for delinquency.
On the last Monday of April of each year all
the unpaid pot tion of the remaining one-half of the taxes on all real prop
erty is delinquent, and thereafter 5 per cent is added for delinquency.
On the last Monday in April, of each year, all the unpaid portion of the
remaining one-half of the taxes on all real property is delinquent, and
thereafter 5 per cent is added for delinquency; and provided further,
that the entire tax on any real property may be paid at the time the first
installment as above provided is due and payable; and provided further,
that the taxes on all personal property, unsecured by real property, shall
be due and payable immediately after the assessment of said personal
property is made.
testator is domiciled at the time of his death, and valid as a will under
the laws of such State or country, is valid in this State as to personal
property.
RELATING TO
Probate Law. (See Administration of Estates, Claims against Es
tates of deceased persons, Descent and Distribution.) The superior court
Wilts. Every person over the age of eighteen years, of sound mind,
may, by last will, dispose of all his estate, real and personal. A married
woman may dispose of all her separate estate by will without the con
sent of her husband, and may alter or revoke the will in like manner
as if she were single. Her will must be executed and proved in like
manner as other wills.
Every will other than a nuncupative will must
be in writing, and every will other than an holographic will and a nun
cupative will, must be executed and attested as follows: 1. It must be
subscribed at the end thereof by the testator himself, or some person
in his presence, and by his direction must subscribe his name thereto.
2.
The subscription must be made in the presence of the attesting
witnesses, or acknowledged by the testator to them to have been made
by him or by his authority. 3. The testator must, at the time of sub
scribing or acknowledging the same, declare to the attesting witnesses
that the instrument is his will; and. 4. There must be two attesting
witnesses, each of whom must sign his name as a witness at the end of
the will, at the testator’s request, and in his presence and in the presence
of each other. An holographic will is one that is entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of this State, and need not be witnessed.
A witness to a will should always write his name and residence. All
devises or gifts to a subscribing witness are void unless there are two
other competent subscribing witnesses. No will made out of this State
Is valid as a will in this State, unless executed according to the provisions
of the code, except that a will made in a State or country In which the
1303
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Acknowledgments. When executed within this State, before any
judge, clerk, or the deputy clerk of any court of record, clerk, and re
corder of any county, or his deputy, or notary public, with affixing by
either of official seal, or before any justice of the peace with in his county.
When executed out of this State and within the United States, before
the secretary of any such State or Territory, the clerk of any court of
record, any notary public, or any commissioner of deeds for any such
foreign State or Territory appointed under the laws of this State, with
affixing by either of official seal; before any other officer authorized by
the laws ot any such State or Territory to take and certify such acknowl
edgment; provided, there shall be affixed to the certificate of such officer,
other than those above enumerated, a certificate by the clerk of some
court of record of the county, city, or district wherein such officer re
sides, under the seal of such court, as to the official capacity, true signa
ture, and authority of the person certifying such acknowledgment.
When executed out of the United States, before anv judge, clerk, or
deputy clerk of any ccurt of rtcotd of any foreign kingdom, empire,
republic state, principality, province, colony, island possession or
bailiwick, before the chief magistrate or other chief executive officer of
any province, colony, island possession or bailiwick, before the may
or or chief executive officer of any city, town, borough, county, dr
municipal corporation, having a seal, or before any ambassador, minister,
consul, consular agent, charge d’affaires, commercial agent, or any viceconsul, etc., or any dinlomatic, consular, or commercial agent or rep
resentative, or deputy of any thereof, of the Utited States or any other
government or country appointed to reside in the foreign country or
place where the acknowledgment is made, each and all certifying same
under his official seal. When executed out of the State, and within
any colony, island possession or bailiwick of the United Stales, before
any such officer as above enumerated in relation- to acknowledgments
in foreign countries (except ambassadors, etc.), or before any notary
public, having a seal, each certifying same under his official seal.
Actions. The distinction between actions at law and suits in equity
is abolished. All actions must be prosecuted by the party in interest,
and are governed by a code of civil procedure.
Administration of Estates. All demands not exhibited in one
year are barred,- unless such creditor can find other estate of the deceased
not inventoried, saving, how’ever. to femmes covert, persons of unsound
minds, imprisoned or beyond the seas, the term of one year after their
disability has been removed to exhibit their claims. Creditors having
liens on the property of the decedent can not foreclose for one year unless
permitted by the court and in no event until the claim has been allowed.
Administration is granted to survivinghusband orwidow, ornextof kin
of an intestate, if they will accept, or are not disqualified; if no such
relative appears within twenty days after death of intestate, administra
tion may be granted to a creditor; if no creditor appears in ten days
after twenty days from death of intestate, or if next, of kin files written
relinquishment, county judge may select administrator. In counties
having a population of moie than 100,000 on default of relatives or
creditors, administration is made by public administrator.
Agent. (See Partnerships.)
Aliens. No restrictions as to aliens.
Arbitration. Differences may be submitted to arbitration by con
sent of the parties in the form pre--cribed by statute, and a judgment
may be entered by the clerk of the District Court upon the finding of the
arbitrators.
Arrest. Imprisonment for debt, except in cases where one refuses to
deliver up his estate for the benefit of his creditors, or in cases of tort or
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
and the verdict states that defendant was guilty of fraud, malice, or willful
deceit, execution may issue against the body of the defendant, but not
where the defendant shall have been convicted in a criminal proceeding
for the same wrong. Imprisonment shall not exceed one year, and the
prisoner is released upon payment of the debt. The writ of ne exeat is
granted under proper circumstances. (See Fraudulent Purchasers.)
Assignments. Assignments for the benefit of creditors may be made
in accordance with provisions of the Assignment Act. Assignments
of wages not covered at the time of the assignment, or of othtr sums
to become due to the assignor, are invalid unless recorded with the
recorder of the county wheie the wages are to be earned, or the sums are
to become due, within five days from date thereof. If the assignor is a
married man or woman, residing with the wife or husband, he or she
must join in the assignment. There are also other provisions regulating
assignments to wage-brokers.
Attachments. In actions on contracts, the plaintiff may have the
defendant’s property attached, upon filing a bond in double the amount
sued for; with affidavit of plaintiff, his agent, or attorney, settiug forth
the amount and nature of the debt claimed, and one or more of the fol
lowing grounds of attachment: 1. That defendant is a non-resident.
2. A foreign coiporation. 3. A corporation whose chief office or
business is ont of this State. 4. Is evading service, or has been absent
from State for four months, while debt has been overdue. 5. Is
about to remove his property out of Sta e. 6. Has fraudulently con
veyed, or (7.) frauduhntly concealed or removed or disposed of his
property, or (8) and (9 is about to do either, or has departed or is about
to depai t from this State, with the intention of having his effects removed
from this Slate. 10. Has failed or refused to pay the price or value of
any article delivered to him to be paid for upon delivery, or (11) of any
work or labor performed,or for any service rendered by plaintiff for de
fendant, to be paid for upon completion.
12. That the defendant
fraudulently contracted the debt, or procnrt d money or property of the
plaintiff. In Justice Courts, the fact that the debt is for farm products,
house rent, household furniture and furnishings, fuel, groceries and pro
visions, clothing and wearing apparel for the debtor or his family, is
additional ground for attachment. Garnishee process will issue in aid of
attachment when money or property of the debtor is found in possession
of third persons.
1304
BANKING AND COMMERCIAL LAWS—COLORADO.
Banks, Savings. Savings banks shall have a capital of not less than
$25,000, which shall be paid in cash. There must be not less than three
incorporators, and the board of directors must consist of not less than
three members, all of whom must be stockholders. The board of direc
tors or trustees may invest one-half of the deposits made with them upon
personal security or in bonds or stock of this State or of the United States,
or in the bonds of any county, State, or school district of this State,
legally authorized to issue such bonds, or loan the sum upon bonds
secured by mortgage upon unincumbered real estate worth at least double
the amount loaned. 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 current payments. 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.
Banks, State. Any number of persons, not less than three, may
establish a bank of discount and deposit; the capital stock must not
be less than from $10,000 to $30,000, dependent upon population, onehalf of which must be paid in cash belore commencing business and
balance within one year, and certificate thereof filed. No bank may
take as security a lien on any part of its capital stock, nor may it
hold or purchase any portion of its own stock, or of the capital
stock of any other corporation, unless such purchase is necessary to
prevent loss upon a debt previously contracted in good faith on security
which at the time was deemed adequate, independent of any lien on
such stock.
Stock so purchased must not be held longer than six
months, if it can be sold for what it cost, or at par. Shareholders in
banks, savings banks, trust deposit and security associations shall be
held individually responsible for debts, contracts, and engagements of
said association in double the amount of the par value of the stock
owned by them respectively. Any banker, bank officer, or employe who
receives money or property after he shall have had knowledge of the
insolvency of said bank, shall be deemed guilty of larceny, and, on
conviction, punished by imprisonment in the penitentiary for not less
than one year nor more than ten years, and in addition shall be in
dividually responsible for the property received. Failure of the bank
or banker within thirty days after receipt of such money or property is
prima facie evidence of knowledge of the insolvency at the time of
such receipt. Loans to any one individual or corporation are limited
to 20 per cent of the paid in stock and surplus of the bank. No bank
may buy or sell goods, chattels, live stock or real estate, except such
as is needed for its banking business; but may hold and sell such prop
erty, including its own stock, when received as collateral security or in
the collection of debts. No director may borrow money in excess of ten
per cent of the capital and surplus, without the consent of a majority of
the directors other than the borrower. No officer, whether a director 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. If he finds capital
impaired, he requires the bank to make up deficiency. On failure of
bauk so to do for sixty days, the bank is placed in hands of a receiver.
Every bank makes reports of its condition to the commissioner thrice
yearly. No bank can do business without a certificate of authority from
the commissioner.
BilH of Exchange. (See Commercial Paper.)
Bills of 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’ltatute of limitations. Mortgages
of stocks of goods which reserve possession and power of sale to mort
gagor, are void as against creditors and bona fide purchasers. Disposing
of mortgaged property is larceny. Chattel mortgagee, his agent or
attorney, now allowed thirty days after maturity of debt in which to take
possession of mortgaged chattels, and during said thirty days, or until pos
session is taken by mortgagee, his agent or attorney, the mortgagor shall
have the right to pay said debt and 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.
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.
Commercial Paper. To be negotiable, an instrument must con
tain an unconditional order or promise to pay to order, or to bearer, a cer
tain sum of money on demand, or at a fixed or determinable time or
times. The instrument may authorize that upon default of payment of
any installment, or of interest, the whole shall become due, audio case of
nonpayment, the sale of collateral securities, or confession of judgment,
or waive benefit of any law intended for the advantage of the obligor. An
instrument payable on contingency is not negotiable. The date expressed
is 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
be strictly pursued. Where capacity of person signing is not clear he is
deemed an indorser. A person adding to his signature words indicating
that he signs on behalf of a principal, or in a representative capacity, is
not liable if duly authorized; but mere words of description without
disclosing his principal does not exempt him. Consideration is prima
facie presumed. A pre-existing debt is a valuable consideration. An
accommodation party is liable to a holder for value with notice. Two
or more payees, unless partners, must all indorse unless one has
authority for all. An instrument payable to a person as cashier
or other fiscal officer of a bank or corporation is deemed prima facie
payable to the bank or corporation, and may be indorsed oy the cor
poration or by the officer. For one to be a bolder in due course the
instrument must be complete and regular, and taken in good faith for
value before overdue, and without notice ol any infirmity in the instru- '
ment or defect in title. Holder is deemed prima facie holder in due
course; but when the title of a person who has negotiated it is shown to
be defective, the burden is upon the holder to prove himself a holder in |
due course. A qualified indorser warrants the genuineness of the instru- ;
ment; that he has a good title, and that he has no knowledge of any
invalidity. An unqualified indorser warrants the instrument valid and
subsisting. One indorsing an instrument negotiable by delivery is liable
as indorser. Except when excused, presentment for payment, or accept
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ance, on the day when due is necessary to charge drawee or indorser of
an instrument. Presentment must be made on due day, and notice of
non acceptance or non-payment given on next business day to all parties
primarily liable unless one has authority for all. Every negotiable
instrument is payable at the time fixed without grace. Waiver of protest
is deemed a waiver of formal protest, presentment, and notice of dis
honor. Protest is required only in case of dishonored bills appearing
on their face to be foreign. It is optional in case of other negotiable
instruments. Bills drawn and payable within this State are inland; others
are foreign. Parties secondarily liable are discharged by extension of
time of payment. Payment by a party secondarily liable, unless an ac
commodation party, does not discharge the instrument, but he may again
negotiate it. Acceptance must be in writing. If written on a paper other
than a bill, whether before or after the bill is drawn, it does not bind ac
ceptor except in favor of a person taking the bill for value on the faith
thereof. A qualified acceptance discharges drawer and indorser unless
they assent. Assent is presumed, after notice, unless they dissent.
Holder can refuse to receive a qualified acceptance. No presentment for
payment is necessary after non-acceptance. A note drawn to maker’s
order is not complete until indorsed by him. A check must be presented
within a reasonable time or drawer will be discharged to the extent of
the loss caused by the delay. The bank is not liable to the holder until
it accepts or certifies the check. When not otherwise provided by this
act, the law merchant prevails. This act applies only to instruments
executed on or after July 20, 1897.
Conveyances. No joint tenancy unless expressly declared in the
deed. Unless so declared grantees shall be deemed tenants in common.
Lands not in possession may be conveyed. Not necessary for wife to join
in deed except in a conveyance of or a mortgage of a homestead, entered
as such of record. Seals and witnesses are unnecessary. Unacknowl
edged deeds are deemed notice irom the date of filing but they can
not be read in evidence unless subsequently acknowledged or proved.
(See Acknowledgments; Husband and Wife.)
Corporations. Three or more persons may form a corporation by
filing a certificate in the proper offices, stating the name, objects for which
organized, amount of capital stock, number of shares (not less than $1.00
or more than $100.00 per share), term of existence (not to exceed twenty
years, except in particular cases), number ol directors (not less than
throe or more than thirteen), and names of those to manage the corpora
tion for the first year, the place where principal office is to be kept, and
counties in which its business is to be carried on. If part of the com
pany’s business is to be carried on beyond the limits of the State, that
fact shall also be stated in the certificate. Fee for filing Articles of
Incorporation of domestic companies is $20. and 20 cents on each thou
sand dollars in excess of $50,000. Foreign corporations $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 mortgage 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, m«y extend its
charter by special meeting of the stockholders, called by 10 per cent of
the entire capital stock. Corporate life shall be renewed for entire
term, not exceeding twenty years. Foreign corporations doing business
in this State are not allowed a longer term of corporate existence than
domestic corporations of like character, but must file renewal 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 beyond the term fixed by the State where it was organized.
No foreign corporation shall have or exercise any corporate powers or
hold or acquire any real or personal property, franchises, rights, or
privileges, or be permitted to do any business or prosecute or defend
any suit in this State, until it has filed in the propel 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 sQch full payment.
In addition to all other fees and taxes, everv corporation, whether
foreign or domestic, shall pay on or before the first day of May of each
year, an annual State corporation license tax to the Secretary of the State of
Colorado, of two cents upon each one thousand 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 Stats to acquaint themselves fully with its requirements. (See
Guaranty Companies; Trust Companies; Transfer of Corporation Stock.)
Courts. Justices of the peace have jurisdiction in matters involving
less than $300, County Courts in matters involving less than $2,000,
except in the administration of estates. The District Court is the court of
general jurisdiction. The Supreme Court is the court of final appeal, and
also has some original jurisdiction, as iu cases of habeas corpus, mandamns and other remedial writs.
Days of Qrace. Are abolished. (See Commercial Paper.)
Depositions.. The deposition of a witness out of the State shall be
taken upon commission issued by the clerk of the court where the
suit is pending, on the application of either party, on five days’ previous
notice to the other, which notice shall be accompanied by a copy of the
interrogatories to be attached to the commission. It may be issued to
a person agreed upon by the parties or to any judge or justice of the
peace, or to a commissioner appointed by the governor of the State to take
affidavits and depositions in other States and Territories, or to a notary
public. The adverse party may file and have attached to the commission
such cross-interrogatories as he may desire. Parties may agree by writ
ten stipulation to take the deposition orally, or, upon proper cause shown,
may obtain an order of court directing it to be so taken.
Descents and Distributions. The estate of an intestate descends,
one-half to the surviying husband or wife, and the residue to the sur-
BANKING AND COMMERCIAL LAWS—COLORADO.
viving children and descendants of children, if any; if none, then the
whole descends to such surviving husband or wife. Except as enumerated
the estate of every intestate descends: 1. To his children surviving, and
the descendants of his children who are dead, the descendants collectively
taking the share which their parents would have taken if living, 2. If
no children nor their descendants, then to his father and mother,
share and share alike; and if one dead, then to the other; if no father
or mother, then to brothers and sisters, and to descendants of brothers
and sisters who are dead, the descendants, collectively, taking the share
of their immediate ancestors in equal parts. 3. If none of the foregoing
living, then to the grandfather, grandmother, uncles, aunts, and their de
scendants, the descendants tatting collectively the share of their immediate
ancestors in equal parts. 4. Ifnoneofthe relatives above enumerated be
living, then to the nearest lineal ancestor and their descendants, the de
scendants collectively taking the share of their immediate ancestors in
equal parts. All posthumous children or descendants of the intestate,
inherit as if born in the lifetime of the intestate; and all children of the
half blood and all legally adopted children shall innerit as children of the
whole blood. Illegitimate children inherit if parents subsequently inter
marry.
Divorce. Causes for divorce are: 1. Impotency. 2. A husband or
wife living. 3. Adultery. 4. Desertion for one year. 5. Cruelty.
6. Failure to su pport for one year. 7. Habitual drunkenness for one year.
8. Conviction of felony. Personal service of summons must be made if
defendant within the State. If without the State, service of summons
and complaint by sheriff of county in which defendant found, is required.
Service may also be made by publication in certain cases. Plaintiff must
be present, and in case defendant defaults, the court appoints an attorney
to defend the action. Except in cases of adultery or extreme cruelty,
where the offense was committed within this State, plaintiff must have
been a bona fide resident of the State for one vear. Neither party to
the divorce may marry within one year from the date of the decree.
Dower. Dower and curtesy are abolished.
Executions. Executions may be issued immediately where no appeal
is taken, and when placed in the hands of an officer become a lien upon
all personal property of the debtor not exempt, in the county to which it
is issued, and it may be directed to the sheriff of any county in the State.
Executions may issue upon judgments at any time within twenty years
from the date of entry, but from and after twenty years from the entry of
j udgment, it is considered satisfied unless revived as provided by law.
Debtor or legal representative has six months to redeem land from sale
under execution. Judgment creditor has three months after expiry of
said six months.
Exemptions. Homestead, consisting of town house and lot or lots,
or of any farm to the value of not to exceed 82.000, is exempt, when
such homeste ad has been entered of record as such, and is occupied
by a householder, the head of a family. Personal property exempt
includes all wesring apparel of the debtor and his family pictures,
■chool books and library, beds and bedding, stoves, cooking utensils, and
household furniture, not exceeding §100; provisions and fuel for six
months; tools, Implements, or stock in trade, up to §200 ; one cow and
calf, ten sheep and necessary food for six months ; working animals, up
to §200; the library and implements of a professional man up to §300; one
bicycle and one sewing machine. Persons not the heads of families are
entitled to tools, working animals, and stock In trade, not exceeding §300
in value. When debtor is head of family, or 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.
Fraud. Parties to auy 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, wt»h 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 guilty of
a misdemeanor.
Frauds, Statute of. 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 special promise to answer for the
debt, default or miscarriage of another; every agreement, promise, or un
dertaking made upon consideration of marriage, except mutual promises
to marry, and every contract for the sale of any goods, chattels, or things
in action, for the price of §50 or more, unless the buyer accepts and
receives part of such goods or the evidence of some of them, or the buyer
at the time pays part of purchase money. {See Sales of ersonal Property.)
{See Attachments.)
Husband and Wife 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 eift 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
o the household goods used by the family, and any conveyance of, or
mortgage upon, a homestead, and any 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,Vented after death of t be testator or of testatrix.
Marriage revoke- a will previously made. The husband is liable for the
debts and the liabilities of the wife contracted before marriage to the
extent of the real and personal property he may receive with or through
her or derive from the sale or rent of her lands, and no further. The ex
penses of the familv and the education of the children are chargeable upon
the property of ' both husband and wife, and in relation thereto
thev mavbe ‘sued Jointly or severally, hither husband or wife living
toother can separately declare property of record in the name of the
other“'A Honie-tead.” by an entry of record over his or her signature.
Neither Van mortgage or convey homestead without the signature of
the other, and wife must acknowledge separate and apart from her
husband.
Interest. The legal rate is 8 per cent, but any other rate may be fixed
by agreement. The same is allowed on overdue bonds, bills, promissory
Garnishment.
83
1305
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.
Judgments. 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.)
Limitations. Actions for the recovery of land must be brought within
twenty years after accrual of right. Actions for the recovery of lands
actually occunied by another under a connected title deducible of
record or under tax or execution or otner sale ordered by court
must be brought within seven years after possession taken. If title is
acquired after taking possession, statute runs from date of acquiring
title. Actual possession of land for seven years under claim and color
of title with payment of all taxes for said period, constitutes the 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 common law within five years. In actions accruing out of the
State upon contract, express or implied, or upon any sealed instrument
in writing, or judgment or decree of any court, more than six years before
the commencement of the action, the statute of limitations may be pleaded
in bar of recovery. If a judgment has been rendered without this State
more than three months before suit in this State, and is based on a cause of
action more than six years old, such cause of action can be pleaded in bar
of the judgment. The constitutionality of this latter provision has, how
ever, been attacked, and is very doubtful. (See 117 Fed., 400.)
Married Women. {See Husband and Wife.)
Mechanics’ Liens. Mechanics, material-men, contractors, sub-con
tractors, builders, and all persons of every class performing labor upon,
or furnishing materials used in the construction or repair of any building,
or any other structure or improvement upon land; also all who have
rendered their professional, skilled service upon Such structure, have a
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 following order; l. Laborers
or mechanics working by the day or piece, without furnishing ma
terial. 2. Sub-contractors and material-men, whose claims are either
entirely or principally for materials, machinery or other fixtures. 3. All
principal contractors. Laborers are allowed one month, material men two
months, and the original contractor three months after the completion of
the structure, within which to file claim of lien. Action to enforce such lien
must be commenced within six months after completion of the building
upon which it is claimed.
Mortgages. Ordinary mortgages on realty are in common use; also
deeds of trust to a public trustee. If am one but the public trustee is
named as trustee in a deed of trust, the instrument is deemed a mortgage
and must be foreclosed as such. In case Die public trustee is named,
the property is sold by him as provided iu the deed, after advertisement in
a newspaper designated in the trust deed, and such advertisement shall not
be less than four weeks. Upon a sale by the public trustee, a certificate of
sale is issued. A subsequent incumbrancer may redeem by paying the
amount bid, and the sum so paid shall be added to the amount of the subse
quent incumbrance. The grantor in the trust deed, or his assigns may re
deem from sale within six months. After six months, and within nine
months, a jndgment creditor may redeem. After the expiration of the
period of redemption, the public trustee executes a deed to the property to
the holder of the certificate of sale, which is assignable. Redemption from
sales of mortgaged property the same as sales under executions. A
deed of trust, pledge or mortgage, given to secure a debt, is unenforcible
by suit or action in court after six years from the maturity of the debt.
{See Husband and Wife.)
Notes and Bills of Exchange. {See Commercial Paper.)
Partnerships, Limited and Special. A limited partnership
may consist of one or more general partners, jointly and severally liable,
and one or more special partners contributing a specified amount of cash
or property, who are not liable for the debts of the partnership beyond
the amount so contributed. Only the general partners can bind the firm.
A certificate must be signed, acknowledged, published and tiled of record
giving details of partnership. All persons doing business under any name
other than their personal names, must file an affidavit showing the real
persons represented, or they may not bring suits upon debts due, and may
be cpnvicted and fined.
Powers of Attorney. Powers of attorney for the conveyance of
lands must be acknowledged in the same manner as deeds, and must be
recorded in the same county wherein tne real property to be conveyed is
situate.
Protest. {See Commercial Paper.)
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 levy.
Sales of Personal Property. Every sale or assignment of goods
and chattels in the possession or under the control of the vendor is void,
as against creditors or subsequent purchasers in good faith, unless accom
panied by immediate delivery ana followed by actual and continued
change of possession. Sales of any portion of a stock of merchandise
otherwise than in 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 ar
ticles; and unless purchaser makes full inquiry of the seller as to names
and addresses of ail creditors of seller, and the* amount due to each, and
obtains an answer; 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 six months after the sale.
This act does not'apply to sales by legal representatives of public officers
conducting sales in their official capacity. {See Husband and Wife.)
Suits.
{See Actions.)
1306
BANKING AND COMMERCIAL LAWS—CONNECTICUT.
Taxes are a perpetual lien on real estate until paid, as also upon stocks
of goods including new goods added thereto. Taxes may be paid in two
semi-annual installments; the first half on or before the last day of Feb
ruary, and the residue on or before the last day of July of the year follow
ing the one in which they are assessed. Real estate sold for taxes
redeemed any time within three years. All mines and mining property of
the class heretofore exempted by the constitution of the State shall be
assessed and taxed, and the taxes levied and enforced by sale of the
property taxed in default of payment, as is provided by law in the case of
other classes of taxable real properties. Delinquent taxes carry interest
at the rate of 15 per cent per annum. Household goods to the value of
8200 belonging to a head of a family are exempt.
Wills. Males of the age of twenty-one years, and females of the
age of eighteen years, may dispose of their property by will, but personal
property may be disposed of by will by any person of the age of seven
teen years. For restrictions as to married persons. (See Husband and
Wife). All wills, whether of realty or personalty, shall be in writing
signed by the testator or some one for him in his presence and at his
direction, and attested in his presence by two or more credible witnesses.
Unless otherwise expressed in the will, an after-born child will share in
the property. Devises and bequests to witnesses are null and void, unless
the will be attested by a sufficient number of witnesses exclusive of such
persons. No will can be revoked otherwise than by the subsequent mar
riage of the testator, or by burning, tearing or obliterating the same by
the testator, or in his presence and by his direction and consent, or by
another will or codicil, declaring the same, duly signed and witnessed.
The property devised 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.)
SYNOPSIS OF THE LAWS OF CONNECTICUT
RELATING TO
BANKING A.ND COMMERCIAL USAGES.
Prepared and Revised by James E. Wheeler, Attorney at Law,
New Haven.
Accounts. In all actions for a book debt, the entries of the parties
in their respective books shall be admissible in evidence. {For limita
tion of actions on accounts, see Limitation to Suits.)
Acknowledgments. {See Conveyances.)
Actions. There is but one form of civil action. Mesne pro
cess in civil actions consists of a writ of summons or attachment, describ
ing the parties, the court to which it is returnable, and the time and place
of appearance, and embodies the plaintiff's complaint. All such writs
shall be signed by a justice of the peace, commissioner of the superior
court, or judge or clerk of the court to which it is returnable. The com
plaint should contain a concise statement of the facts constituting The
cause of action and a demand for relief; and legal and equitable relief
may be demanded in the same action, except in actions before justices of
the peace, who have no equity jurisdiction.
Administration of Estates. The probate court has jurisdiction
of deceased estates. Administration on intestate estates is granted to
the husband or wife, or next of kin or to both. On their refusal or inca
pacity, or upon objection by any creditor or heir to such appointment
found reasonable by the court, then to any other person whom the
court deems proper. Bonds, which must be furnished by the adminis
trators or executors, are usually mad«^ouble the estimated value of the
personal property. Bonds of surety companies authorized to do busi
ness in the State may be accepted. Where the will waives the bond
a nominal bond is required, usually in double the amount of the
debts of the testator. Deceased estates may be settled as solvent or
insolvent. Not less than six months are limited for the presentation
of claims against deceased estates, whether solvent or insolvent. Such
claims are presented to the administrator or executor if the estate is
solvent, or to commissioners appointed by the probate court if the es
tate 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 administra
tor or executor of a solvent estate of the disallowance of a claim.
Twelve months is the usual time allowed fo the settlement of deceased
estates. Administrators and executors may mortgage real estate if
shown to be for benefit of the estate, after due application to, and hearing
in probate court.
Affidavits. Civil actions do not ordinarily have to oe"supported by
affidavits. Affidavits have little weight as evidence, and are rarely
admitted as such.
Aliens. Any alien resident of any of the United States, and any
citizen of France, so long as France shall accord the same right to citizens
of the United States, may purchase, hold, inherit, or transfer real estate in
this State in as full a manner as native-born citizens.
Arbitration. 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
haviDg 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 that they have mutually decided to
submit their controversy to the arbitration of certain named persons and
may obtain a rule of court of similar purport; or in case of an action pend
ing in court, if the parties thereto desire to refer it to arbitration, each
may choose one arbitrator and the court appoint a third; and in either of
these three cases, the award of the arbitrators being returned and accepted
by the court, judgment shall be rendered pursuant thereto, and execution
granted thereon, with costs.
Arrest. 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
;
I
I
I
I
1
|
j
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. Courts1 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.
Attachments. Attachment may be made upon the original process,
and is served by attaching the goods or lands of the defendant, or, if
sufficient goods be not found, the person in tort actions. Attachments may
be granted upon all complaints containing a money demand. Supple
mental attachment may be ordered by the court upon application at any
time during the pendency of the action. If the plaintiff be a non-resident,
he is required to furnish a bond for prosecution from ten dollars to one
hundred and forty dollars, according to amount attached. An attach
ment lien expires unless execution is levied within sixty days after final
judgment upon the attached personal property, or within four months
upon the attached real estate. (See Exemptions.)
Banks. (See State Banks and Trust Cos.)
Bills of Exchange. (See Holes and Bills.)
Bills of Lading. 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 Mortgages. (See Mortgages, Conditional Sales, and
Interest.)
Collateral Inheritance or Succession Tax. (See Taxes.)
Conditional Sales. All contracts for the sale of personal property,
except household furniture, musical instruments, bicycles, and such
property as is by law exempt from attachment and execution, con
ditioned that the title thereto shall remain in the vendor after delivery,
must be in writing, describing the property and all conditions of sale,
and acknowledged before proper authority, and recorded in town where
vendee reside*. If not made a* required, they are held to be absolute
sales, except a* between the vendor and vendee or their personal repre
sentatives. A crime to conceal or convey per»onal property held on such
conditional sale.
Contracts. Ordinary provisions of Statute of Frauds apply.
Courts of probate having jurisdiction of the settlement of the estate
of any deceased person may, concurrently with the courts of equity,
authorize the executor or administrator to convey the title of the deceased
in any real estate to any person entitled to it, by virtue of any contract of
such deceased person, and the court of probate in which the guardian
of any minor has been appointed may, in like manner, order such guar
dian to convey the interest of his ward in any real estate which ought in
equity to he conveyed to another person. Contracts for the conveyance
or 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. 8.) may be used for
a seal. The acknowledgment is made by the grantor before a judge of a
court of record of this State or of the United States, a clerk of the supe
rior court, court of common pleas, or district court, justice of the peace,
commissioner of the school fund, commissioner of the superior court,
notary public, town clerk, or assistant town clerk, if in this State, and
if in any other State or Territory of the United States, then before a
commissioner appointed by the governor rf this State, or any officer
authorized to take the acknowledgment of deeds in such State or Terri
tory, and if in a foreign country, before any consul of the United States,
or notary public, or justice of the peace in such foreigh country. Con
veyances 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 hsr 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 ths town in which the land lies.
Corporations. 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, buildtng and loan
association, insurance company, surety and indemnity company, steam
railroad or street railway company, telegraph compaav; and gas and
electric lighting, water company, or any company which shall need to
have the right of 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 authorized capital stock, which
must not be less than $2,000. number of shares and par value of each,
which shall not be less than 525, amount of capital stock with which it
will commence business, which shall not be less than $1,000. A certified
copy must be filed in the town clerk’s office.
The 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 $85.
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 sworn 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 subscriber* with number of shares sub
' scribed for, statement that the director* and officer* have been duly
BANKING AND COMMERCIAL LAWS—CONNECTICUT.
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 may be
filled by remaining directors.
.
No stock can be issned until it has been paid for in full. Receipts for
partial payments of stock may be issned 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, mismanagement, or if assets are in
danger of waste by attachment, or when corporation has abandoned its
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 paid for in full with
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.
Costs. 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 depositt of $15 for
case in justice’s court and $50 in any other couit before bringing suit.
(See Insurance Companies, Injunctions, etc.)
Courts. Terms and Jurisdiction. Superior court holds one term
per vear in each county for the trial of civil causes, and. has jurisdiction
Fn afl law and equity cases exceeding $500, and exceeding $100 in those
counties where there are no courts of common P*®as.
mon pleas in Hartford, Fairfield, New London, and New Haven coun
ties, has exclusive law and equity jurisdiction above $10CI and
$500, and concurrent jurisdiction with the superior court above $5W and
up to $1,000, and in Litchfield County has exd“ivejunsdiction up to
$1,000 Not less than four terms each year are held in each^he 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 courtsi in
many of the towns. Probate courts have jurisdiction of the aettlement
of the estates of deceased, insolvent, and incompetent persons, and are
established in a large number of probate districts-one for e^^dis
trict. Justices of the peace have civil jurisdiction up to $100. In New
Haven and Hartford jurisdiction of justice of the peace has been trans
ferred to city court, except in cases of summary process and bastardy.
Days of Grace. {See Notes and Bills of 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
Attend the
from place of trial, is over sixty years oi age
unablel° a«e™
trial is going to sea. or out ol the State, or by age and infirmity is unable
to travel to court, or is confined in jail. Kea’°“a})1® ”£eakthewhole
given to adverse party. Deponents must be cautioned to speaktne wnoie
truth, and carefully examined. They must subscribe their deposition,
and make oath before the authority taking the! eame, who-shall a«^tthe
same and certify that the adverse party or his agent was p esent (dwbor
that he was notified, and shall also certifj the reas
g
tion, seal it up, direct it to the court where it isitotxi used,and deliver £
if desired, to the party at whose request it was taken DeP®8^J18i™ay
be taken in any other State or country by a
appointed by the governor of this State or by any mafiistrate having
power to administer oaths, and ^ey may also
aDDointed bv t&e
minister, secretary of legation, consul, or
pidge of the supeUnited States, if taken out of the United States.A judge of the supe
may compel attendance of witnesses by subpoena and capias.
Descent and ni.trlbutionofFropertvin
(As to the share of a surviving husbandI oi-wife, see the me Hurta a
'/
After the share of the surviving husband or wne, me re bi
Ze J’S reaHir'personal estate is diluted of equal proportions
among thei children and the t8^a ”Jved egtate by advancement of the
may be dead (children who lift
samp in the distribuintestate in his lifetime being barged with the: wmein W^ffistniM
who le°gany8 .^“/"them; andL ifwho
equally to the brothers a“d sisters of t n
legally represent them: and if none, th
q
.7
ference t0 kindred
among collaterals after the representau.es of brothers ana sisters.
DlT.ee..
for the following causes, vi ■ •
ne„]ect of duty ; seven years’ absence
sertion for three years,?tt,hsmi/rTarty has not been heard from: habitduring all which periodI thP 7 sentence to imprisonment for
ual intemperance; intolerab « crne y,a vio]ation of con3ugal duty, and
life, or any intamous c^*
.
state prison. Uncontested divoroe
punishable by imprisonmetbe return day. The plaincases cannot be heard unt
^y^ 7tlie state tbree years next before
must have continuous y
cauge aroge Bubf,equently to removal
date of the c<’mPlal“.t’ defendant has resided in the State and has been
,nto this State, or units
or unieg» the alleged cause is habitpersonally served with
p
crU’eity, and the plaintiff was domiciled
nal Intemperance or Intolerable
and bcfore bringing the comln this State at the tim
.
intention of permanently
plaint has returnedi tothw Statojn
by
either“party a dMimo^y, not exceeding one-third the husband's estate,
eitner party, aim »om j,
tbe CQurt bag power to order aiimony
&S?Ziffio be paid to the wife upon such terms and conditions as
1307
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.)
Evidence. (See Courts, Insurance Company, Corporations.)
Executions. Issue on final judgment, and are returnable within sixty
days. No execution issued in an action founded on contract merely
can be levied on the body of the debtor except for breach of promise of
marriage, misconduct or neglect in office or professional employment,
or breach of trust. Any judgment debtor, an execution against whom
shall have been returned unsatisfied in whole or in part, may be exam
ined on oath touching his property and means of paying such judgment,
and may be committed for contempt. (See Exemptions.)
Exemptions. Homestead, to the value of $1,000, if declaration to
hold it as such is recorded. Of the property of any one person, his
necessary apparel and bedding and household furniture necessary for
supporting life; any pension moneys received from the United States
while in the hands of the pensioner (which has been construed to cover
also such pension money when deposited in a savings bank); implements
of the debtor’s trade, his library not exceeding $500 in value; sundry do
mestic animals not exceeding $150 in value; so much of any debt
which has accrued by reason of the personal services of the debtor as
shall not exceed $25, including wages due for the personal services of
any minor child (but there shall be no exemption of any debt accrued
by reason of the personal services of the defendant against the claim for
the defendant's personal board, or for the rental of any house or
tenement occupied by the defendant as a place of residence when such
rental shall not exceed $25); of the property of anyone person hav
ing wife or family, two tons of coal, specified amounts of fobd-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 or 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 State toward the support of its members, incapac
itated by sickness or infirmity, shall be exempted from foreign
attachment or execution.
Foreign Attachments. Goods concealed in the hands of agents or
debts due the defendant are reached by foreign attachment which takes
the place of garnishment. No assignment of future earnings will pre
vent their attachment when earned unless made to secure a hona fide
debt, due at the date of such assignment, the amount of which shall be
stated therein as nearly as possible, nor unless the term for which they
are assigned shall be definitely limited in the assignment, nor unless
recorded before such attachment in the town clerk’s office in the town
where the assignor resides, or if he resides without the State, in the town
where the employer resides, and a copy left with the employer. (See
also Exemptions.)
Foreign Corporations. EVery foreign corporation, except insur
ance and surety companies and building and loan associations
and investment companies (a corporation which has power to or does
sell 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
president, treasurer, and a majority of its directors, showing the amount
of its authorized capital stock and the amount thereof which has been
paid in, and, if any part of such payment has been made otherwise than
in 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 in
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 snch secretary shall be of the same
legal 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 suf
ficient service upon the principal, and may be made by leaving a duly
attested copy of the process with the secretary of the state or at his office.
Every foreign corporation doing business in this State shall, within
thirty days after an increase or reduction oi its capital stock file in
the office of the secretary of the state a certificate substantially like that
required of domestic corporations organized under the like conditions.
The president and treasurer of every foreign corporation doing business
in 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
for that purpose and shall furnish a certified copy to be recorded in the
office of the town clerk of the town in this State in which such corpora
tion has its principal office or place of business, and said town clerk shall
record the same in a book kept by him for that purpose. On the
fifteenth day of March and September the town clerks of the several towns
shall report to the secretary of the state the names of all corporations
whose annual reports have been filed for record during the preceding six
months, in accordance with the provisions of this section, and the
secretary shall report to the attorney-general every six months the names
of all corporations which have failed to comply with the provisions of this
section, and the 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.
Foreign Judgments. Not conclusive on question of jurisdiction
A foreign judgment when used by way of defense, is as conclusive, to
every intent, as those of our own courts. In an action on a judgment ren
dered in another State, evidence on the part of the defendant that he had
no legal notice of the suit and did not appear, is admissible, although the
record of the judgment stated that the defendant appeared by his attorney
Where the foreign court has a peculiar and exclusive jurisdiction its
decree is binding upon the judgment of any other court, into which’the
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
1308
BANKING AND COMMERCIAL LAWS—CONNECTICUT.
Connecticut, unless such court had jurisdiction of the person against whom
it is rendered, acquired either by service upon him of the process in the
suit,or actual notice to him of the suit, or at least by his having appeared
in it, and thus submitting to the jurisdiction of the court. Jurisdiction
presumed to have been properly exercised, if court once had jurisdiction,
Notice presumed of resumption of jurisdiction if required by practice
in foreign court. A judgment recovered in a sister State is a bar to the
further prosecution of an actionpending 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 judgment. Only such pleas are pleadable to a foreign judgment, as are pleadable where rendered.
Fraud. 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.
Garnish ment. (See Foreign Attachments.)
Guaranty Companies. 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 tne examination 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, ia cash, of said corporation or company. Guarantee com
panies must procure license from the insurance commissioner.
Holidays. (See Notes and Bills of Exchange.)
Husband and Wife. 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 survivor 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 properly.
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 if there are no children, shall
take all of the estate of the decedent absolutely to the extent of $2,000,
and one-half absolutely of the remainder of said estate.
Injunctions. 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 aud 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 ternporary 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 ol 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 containing 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 modified by thecourt or judge who issued it,by any judge of 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 injunction, may appear and he 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 contin
uance of such injunction, either party may apply to the court rendering
such judgment, representing that he is desirous of taking the case to the
supreme court of errors, and praying that said temporary inj unction may be
continued until the final decision therein; and unless said court shall be of
opinion that great and irreparable injury will be done by the further con
tinuance of said injunction, or that said application is made for delay
and notin good faith, it shall be the duty of the court to continue said in
junction until a final decision be rendered in the supreme court of errors.
When in any action judgment shall oe rendered for a permanent injunction ordering either party to perform any act, upon similar application to
that above mentioned, a stay of operation of such injunction, pending
final decision of supreme court of errors, may he gran ted .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 of said permanent injunction while said cause is so pending in the supreme court of errors.
Insolvency. Suspended except as to voluntary assignments in insol
vency by corporations, owing to United States Bankruptcy Act.
Interest. Legal rate, in absence of express agreement, 6 per cent;
no more than 6 per cent can be recovered in either case after debt be
comes payable. 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. No one other than National or State bank or trust
company or pawnbroker shall charge or accept more than 15 per cent per
annum for interest, but this does not apply to bona fide mortgages of
real or personal property.
Judgments carry 6 percent interest, but are not liens, and execu
tion may be had at any time during the life of both parties. Judgment
by default may be obtained if the defendant makes no appearance on
return day. Certificate of judgment may be recorded by judgment
creditor or his assignee in town clerk’s office, and such judgment from
the time of filing such certificate shall constitute a 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-
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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.
Jurisdiction. (See Courts.)
Liens. (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 Judgment Liens, see Judaments.)
Limitations 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 ot married women,
minors, lunatics, and those imprisoned. The time during which the
party against whom there may be such cause of action shall he without
the State shall be excluded from the computation. Title to real estate by
adverse possession may be gained in fifteen years.
Limited Partnerships. 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 of the general partners are authorized to trans
act the partnership business and sign the firm name, and also the amount
of capital furnished by each special partner and the time at which the part
nership is to commence and terminate ; nor until such certificate, and also
a certificate of the amount actually paid in by each special partner, signed
and sworn to by such of the general partners as are authorized to transact
the partnership business, shall be filed and recorded in the office of the
town clerk of the town where the principal business of the partnership is
to be carried on; and a copy of such certificate shall be prirna facie evi
dence of the matters therein contained; and the partnership shall be re
sponsible only for the acts of the general partners designated as specially
authorized as aforesaid; and copies of said certificate shall, in like manner,
be filed in every town where such partnership may have a place of business.
Terms of such partnership must be published for six weeks in newspaper
published in county where business is to be carried on. Any such part
nership may 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
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 genera!
partners. All advancements to the capital stock by the special partners
shall be in cash and no part of the capital furnished by them shall be with
drawn, either in the shape of dividends, profits or otherwise, at any time
while such partnership continues; except that any special partner may
lawfully be paid from the assets of such partnership, each year during the
continuance thereof, a sum not exceeding 10 per centum upon the cash
contributed by him to the capital stock; provided that such payment shall
only be made "out of the net profits actually earned by such partnerships,
during the year for which such payment is made. No special partner
shall under any circumstances be considered a creditor, or allowed to claim
as a creditor. No special partner shall be joined as a party in any action by
or against such partnership unless liable as a general partner.
Married Women.
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(See Husband and Wife.)
Mortgages 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 he 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 hy the owner therein in housekeeping; hay and tobacco in the
leaf in any building. Piano, organ, melodeen, and any musical instru
ment used by an orchestra or band. Brick, burned or unburned, 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.
Notaries Public hold office for two years from first day of Feb
ruary of year in which commissioned, unless "commission is sooner revoked
by Governor. May exercise their lunction at any place in State. May
take acknowledgments, administer oath, take deposition, subpoena wit
nesses to give deposition. The authority and offleiaracts 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.
Notes and Bills of Exchange.
now in force.
Negotiable Instruments Act
Powers of Attorney. 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.
Private Banks.
,
Probate Law.
(See end of State Banks and Trust Companies.)
(See Administration of Estates, Appeals, Assign
BANKING AND COMMERCIAL LAWS—DELAWARE.
1309
ments and Insolvency, Collateral Inheritance Tax, Courts, Descent and
witnesses, each of them subscribing in his presence, but they will be
Distribution of Property, Husband and Wife, and Wills.)
effectual here if executed according to the law’s of the State or country
where
executed. If, after the making ot a will, the testator shall marry,
Protest. (See Notes and Bills of Exchange.)
or if a child is born to the testator, and no provision is made in the
Records. Warranty, mortgage, quitclaim deeds must be recorded in
will
for
such contingency, such marriage or birth shall operate as a
office of town clerk in town where land lies, also assignments of mortgage,
revocation of such will. A will or codicil is otherwise revoked by burn
conditional bills or sale, chattel mortgages, assignments of future earnings.
ing,
canceling,
tearing, or obliterating it by the testator, or some person
Certificate of trade-mark to be filed for record in office of secretary of
in his presence by his direction, or by a later will or codicil. A devise
state. Certificate of unsatisfied judgment to be filed for record in town
or
bequest
to
a
subscribing witness, or to the husband or wife of a sub
clerk’s office (See Conveyances, Insurance Companies, Limited Part
scribing witness, is void, unless the will is otherwise legally attested, or
nerships, Judgments, etc.)
unless the devisee or legatee be an heir to the testator. Wills are proved
Redemption. (See Mortgages.)
and estates “ettled in the probate court, in the district where the deceased
resided. Wills of non-residents owning property in this state may be
Replevy. Replevin lies for goods wrongfully detained, in which the
proved by filing exemplified copies thereof in district where property is
plaintifi has a general or special property with right to immediate pos
located. Such course should always be taken in order to pass good title
session. A writ of replevin can not issue except upon an affidavit in which
to real estate.
the affiant states the true value of the goods to be replevied, and that he
believes that the plaintiff is entitled to the immediate possession of the
same, nor until the plaintiff furnishes a bond with sufficient surety in a
sum double the value of the property. This bond or recognizance must
be signed by the obligors in presence of at least one witness other than
the authority taking the recognizance.
SYNOPSIS OF THE LAWS OF DELAWARE
Sales. Uniform Sales Act passed in 1907.
RELATING TO
Service. 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
BANKING
AND
COMMERCIAL USAGES.
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
Prepared
and
Revised
by
G
eorge
M. Jones, Attorney at Law, Dover.
courts of probate, and the judges, clerks, and assistant clerks thereof, or
(See Card in Attorneys' List.)
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
Acknowledgment. (See Conveyances.)
deemed reasonable, in regard to the notice which shall be given of the
Actions. Suit may be commenced by capias, summons, and (w’here
institution or pendency of all complaints, writs of error and appeal from
defendant
is non-resident) by attachment of property. Summons in
probate, which may be brought to or pending in any court, when the
justice’s court may be issued returnable in four days from date of service,
adverse party, or any person so interested therein, that they ought to be
or may be made returnable forthwith, upon plaintiff filing an affidavit
made parties thereto, reside out of the State, or when the names or resi
that there is danger of hie losing the benefit of his process by delay. In
dences of any such persons in interest are unknown to the party instituting
superior court the summons must be served personally on debtor before
the proceeding; and such notice having been given and proved shall be
court sits, or by leaving a copy of the summons at his usual placeof
deemed sufficient service and notice.
abode, in presence of some white adult person, six days before court sits.
State Banks and Trust Companies. A reserve fund of 15 per
Service by publication allowed in the court of chancery only.
cent of aggregate of deposits must be held and maintained in the banking
Affidavits may be administered in the State by the chancellor, any
office, of whicL 4-15 must be gold and silver coin, demand obligations, or
judge, justice of the peace, or notary public; and out oi the State by
United States or national bank currency. The remainder of said reserve
any
official duly authorized to take acknowdedgments of deeds, etc.;
fund may consist of balances subject to demand draft with reserve agents,
but before a notary public is preferable. The affiant must sign the
which are members of the clearing house associations of New York,
affidavit.
Boston, Philadelphia, Chicago or Albany; or national banks, state banks
Assignments and Insolvency. There is a domestic insolvent
or trust companies, located in Bridgeport, New Haven or Hartford
law providing lor a full surrender and equal distribution of all property,
and of railroad bonds which are legal investments for savings banks.
but
it is very seldom used, and there is no provision in the act for the
No new loans or discounts may be made when the reserte is below
discharge of the debtor upon his making au assignment. The assignee
15 per cent. Bank commissioners may apply for appointment of a
must
file a schedule of property assigned within thirty days, and two
receiver when the reserve falls below 15 per cent after thirty days notice.
appraisers are then appointed by the chancellor. Assignments must be
No one person, corporation or firm may borrow more than 10 per cent
for
the
benefit of all creditors alike.
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
Attachments. Domestic attachment may be issued against an
collateral loans. Penalty of $3,000 for violation of this law. Paper of , Inhabitant of this State, after a return to a summons or capias issued ten
executive officers or clerks may not be discounted. Loans to parties out
days before the return thereof, of non est inventus, and proof of cause
side the state can only be made when the loans and discounts in the
of action; or upon the filing of an affidavit “that the defendant is
aggregate amount to one-half of the capital stock.
justly indebted to the plaintiff in a sum exceeding $50, and has
Books of a bank may be examined by stockholders under certain conabsconded from the place of his usual abode, or gone out of the State
with intent to defraud his creditors, or to elude process, as is believed.”
Three-fourths of the directors must be residents of the state. No
The writ directs the attachment of property and summons of garnishees.
director may be obligated to a bank or trust com panj in an amount
Attachment may be dissolved on entering security to satisfy any
exceeding 5 per cent of the capital actually paid in and sui plus undivided
judgment to the extent of the property attached that may be recovered
profits combined. This does not apply to loans secured by collateral.
against the defendant. On returfi of attachment the court appoints
three persons as auditors of the claimsof creditors; thecreditor attaching
Cashier’s bond of $10,000.
,
.
At least five reports, verified by oath, must be made each year to the
is allowed a double share for his diligence, not to exceed full amount
bank commissioners, exhibiting in detail the resources and liabilities of
of debt. Any creditor not duly presenting his claim receives no share
the bank or trust company, ten days after receipt of request therefor ; in the distribution. Plaintiff is not required to give security. Wa^es
from the bank commissioners, which shall be published in a newspaper
are exempt from attachment In New Castle County except for boarfor
in the county where the bank or the trust company 16 located. Penalty
lodging. Foreign attachment may be issued against any person not an
of $10 for each day of delay in transmitting report.
. ,
Inhabitant of the State after a return of non est as in domestic attach
Words “bank," “trust,” or “savings’ may onlynk'
ment, or upon affidavit being made “that the defendant resides out of
trust companies and building and loan associations incorporand >v the
the State, and is justly indebted to the plaintiff in a sum exceeding $50 ”
United States or by the general assembly, but this shall not apply to firms
Foreign attachment may also issue against a foreign corporation, but in
or individuals doing business as private bankets or brokers undei their
this case the amount of the real debt must be particularly specified in
own names, who deposit with the state treasurer a bond of §10,000, or
the affidavit, and must exceed fifty dollars. Unlike domestic attach
acceptable securities of that amount for the protection of customers from
ments the plaintiff in foreign attachment has the benefit of his own dis
styling themselves bankeis in the conduct of their business.Banks and
covery and does not share with other creditors. It is similar to domestic
trust companies maintaining savings departments must in'e®
p . s
attachment in all respects except as to appointment of auditors and
according to the laws of the state concerning investments of savings
distribution among creditors. The court or any judge upon petition may
banks, and muRt make sw orn statements to the bank commissioners on
investigate any allegation in affidavit, except as to the amount of the debt,
October 1st in each year and oftener if required by the commis lmieis of
and dissolve the attachment if sufficient ground be not shown. Foreign
the amount of such deposits and the securities in which they art in\e-ted.
attachment is otherwise dissolved by entering special bail.
Banks. There is no general banking act and but one State bank,
Suits. (See Actions.)
which was chartered by the legislature in 1807. There are no official
Taxes. Land may be sold for delinquent taxes after due advertising,
examinations and the bank is merely required to make a yearly report of
only so much being sold as is necessary to pay taxes »^d costs. _Owner
its condition to the governor of the State. Banking companies can not
has one year in which to redeem, by paying the purchase money, ith
be formed at present, as there has been no statutory provision for so
12 per cent interest. Bonds, notes, or other choses in action, except bonds
doing.
The holders of stock are taxed at the rate of one-fourth of one
and notes secured by mortgage on real estate situated[in this SUte,,maybe
ner centum on the cash value of each share of capital stock. There
exempted from all local taxation by paying to the State a tax of 1 per cent
have
been
recently several trust companies formed in the State
on the face amount ihereof for five years, or at the option of the holder
either by special act before the 1897 constitution, and by general corporathereof for a greater or less number ot years at a proportionate rate.
!
tion
act
since,
which have been granted banking powers by special
All nronertv in excess of ten thousand dollars in value, within the juris
statute. Banks and trust companies are now subject to inspection bv
diction of this State, whether belonging to inhabnants of this State or
insurance
commissioner.
•’
not which shall nass bv will or by the Intestate la\ys of thia State, or by
deed ^antsa eP or <d?t made or intended to take effect in possession
Bills and Notes. Acceptance should be in writing on the bill
or enjoymentafte-h? death of the grantor, shall be subject to a succesAll checks, notes, drafts, or bills, foreign or inland, payable without
i time or at sight, are due on presentment without grace.
■ioT. tax
folh.wsPronerty passing
the parentch„d
or parents,
wife, or’ Hneal
^cend&
’r legaflyto ^ted
of the husband,
deceased
Chattel Mortgages must be accompanied with an affidavit that the
person shall be liable to a tax of one-half of 1 per centum of its value
mortgage is made for the bona fide purpose of securing a debt, and not
£r the use of the Slate, and any such estate or interest thereiri, which i to deiraud creditors, and if recorded within ten days from the acknowl
shall pass to collateral kindred or to strangers to the blood or to iany
edgment thereof, is a valid lien for live years on personal property the
corporation, voluntary association or society, shall be liable to a tax of , possession of which may remain in the mortgagor.
3 per centum of its value.
Claims Against Estates of Deceased Persons are paid in the
Transfer of Corporation Stocks. (See Corporations.)
| following order: 1. Funeral expenses. 2. Bills for medicine, medical
I attendance, nursing, and necessaries for last sickness of the deceased
Trust Companies. (See State Banks and Trust Companies.)
i 3. No more than one year's wages of servants in house and laborer on a
Warehouse Receipts. Uniform Warehouse Receipts Act passed in I farm. 4. Rent for not more than one year, either growing due or in
arrears. 5. Judgments and decrees in equity against deceased. G
1907.
Recognizances, morigages and other obligations of record. ?. Obliga
Wills. All persons of the age of eighteen years, and of sound mind,
tions and compacts under seal. 8. Contracts under hand for the payment
may dispose of their estate (real or personal) by will. No devise, except
of money, delivery of goods, wares or merchandise. 9. Other demands
for public and charitable uses, or for the care of cemeteries or graves,
Administration is granted: 1. To the person entitled to the residue
•hall be made to any persons but such as are at the time of the death of
2 To one or more of the creditors. 3. To any suitable person, resident
the testator in being, or to their immediate issue or descendants. Wills
musTbe.n writing, subscribed by the testator, and attested by three
or non-resident. Bond must be given for an amount J double the
1310
BANKING AND COMMERCIAL LAWS—DELAWARE.
value of the estate. Notice must be given of claims against the deceased within six months from granting of letters (except claims of
record), or execntor 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.
Contracts 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 witnes s 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 the 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 alio be taken by any commissioner of deeds for
thisState, 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 for all purposes other than
banking. Each stockholder is individually liable for the amount ol
capital stock not paid in in proportion to the amount subscribed by him.
Corporations of other States may be sued in this State, and the property
of the same found here may be seized by attachment. All foreign corporations must file with the secretary of State, statement of assets and
liabilities, and the name of its authorized agent upon whom process may
be served; must pay a State tax of $50, and fees of secretary of State
(this State tax is paid but once) must file with the prothonotary of each
county the name of authorized agent upon whom process may be served.
Costs. Non-resident plaintiffs may be required to give security for
costs.
Courts. Terms and Jurisdiction. The different courts of the State
are as follows: Supreme court; regular term at Dover third-Tuesday
in June and January. Court of chancery and orphans’court; regular
terms, New Castle county, at Wilmington, on the fourth Monday in
March and second Monday in September; Kent county, at Dover, third
Monday in March and third Monday in September; Sussex county, at
Georgetown, second Monday in March and first Monday in September.
Superior court, and court of general sessions 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" April 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 jurisdiction in all civil cases, but if suit be brought for less than §50, costs will
not be recovered. Justice’s jurisdiction, $200.
Depositions. In any suit pending, the prothonotary, on application,
enters a rule commission on v e part of the applicant to any commissioner
of the State or other person. The comnltssion 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.”
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machines in private families: tools of trade not <o exceed $50 in Kent, or
$75 in New Castle county; and to the head of 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
of 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 notifies the landlord in writing of the claim thereon.
Frauds. 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
erson to be charged therewith; for an amount exceeding twenty-five
ollars there must be some memorandum or promise in writing signed by
the party to be charged therewith.
Garnishment. 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.
Holidays, Legal. 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. If legal
holiday falls on Sunday the next day is observed. Negotiable paper
falling due on legal holiday is due and payable on the next preced
ing secular day; if falling due on Saturday half-holiday, if not presented
for payment before noon, is not due till the next succeeding secular day.
Homestead. There is no homestead law in Delaware.
Interest. 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 or the
State, and the other for the party suing.
Judgments of courts of record are liens upon all real estate of the
debtor in the county where judgment is entered from their date, but
the lien may be extended into either or both the other counties. Judg
ments can only be obtained in this State upon judgments in other
8tates by suit, upon a certified copy of the record of said judgment
authenticated under the Act of Congress passed May 26, 1790. Tran
scripts of judgments recovered before justices of the peace may be
entered in the superior court and thus be made liens on real estate.
Satisfaction must be entered within sixty days after payment.
Limitations. 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.
Married Women retain their real and personal property owned at
marriage or received from any person other than the husband. May
receive wages for their personal labor, and prosecute and defend suits
for preservation and protection of their own property, as if unmarried,
and the rents, issues, and profits of their separate estate are not 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. If her husband die without
issue or the children of issue, she takes a moiety instead of a third part of
the real estate. A married woman of the age of twenty-one years and
upward may dispose of her property, both real and personal, by will,
without the written consent of her husband, but subject to his right of
curtesy. Two or more witnesses are necessary for a will. Husband and
wife may testify in alljcivil actions in which either or both are or may be
parties to the suit.
Divorce. The superior court has sole cognizance for the following
causes: I. A divorce from the bonds of matrimony shall be decreed for
Mortgages of Real Property are executed and acknowledged like
adultery, desertion for three years, habitual drunkenness, impotency of
other deeds. They become a lien from the time they are lodged with the
either party at the time of marriage, extreme cruelty, or conviction,
recorder. Upon foreclosure of same there is no redemption of property.
either in or out of this State, after marriage, of a crime by the laws of
A purchase money mortgage should be recorded within thirty days to
this State deemed felony, whether such crime shall be perpetrated before
avail against a subsequent innocent holder.
or after such marriage. 2. A divorce from the bonds of matrimony,
Proof of Claims. The full individual names of plaintiffs and
or from bed and board at the discretion of the court shall be de
defendants, together with style of doing business, must be stated; <>r if a
creed for procurement of the marriage by fraud for want of age, the
corporation, the laws of what State under which incorporated. One of
husband being under the age of.eighteen years or the wife being under
the plaintiffs, if a partnership, or the treasurer or cashier of a corpora
the age of sixteen years at the time of the marriage and such marriage
tion, must make the affidavit to the amount claimed, giving an itemized
not being after those ages voluntarily ratified; or for willful neglect on the I copy of the cause of action attached thereto. It is advisable to have the
part of the husband for three years to provide for his wife the necessa- j affidavit made before a notary public, though it may be made before
ries of life suitable to her condition. The same court can decree
others. (See Affidavit.)
marriages null and void which are prohibited by law for consanguinity
Protest. (See Bills and Notes.)
or affinity; or between a white person and a neero or mulatto; or where
either of the parties had, at the time of the marriage, another husband or
Replevin. The writ Issues out of the superior court to obtain posses
wife living; or where either of the parties was at that time insane. No
sion of goods unlawfully taken or unlawfully detained. No affidavit is
divorce from the bonds of matrimony shall be decreed by the court when
required, but before the officer to whom it is directed can execute it
the cause assigned therefor in the petition occurred out of this State, and
the plaintiff or some substantial person for him must enter into bond
the petitioner was a non-resident thereof at the time of its occurrence un
bo such officer in a penalty of double the value of the goods to be
less tor the same or like cause such divorce would be allowed by the
replevined, conditioned to prosecute the suit with effect, etc. Defendant
laws of the State or country in which it is alleged to have occurred.
may give counter bond ana retain the goods.
Sammons may be served on the defendant by stating the substance
Executions are a lien upon personalty from the time the shenfl
of it to him personally at any time before the return of the writ, or by
received the writ, if actual levy be made within sixty days thereafter.
leaving
a copy of it at his usual place oi abode in th^presence of some
Priority of lien remains in force five years. Execution may be issued
adult person six days before the return thereof. Against a corporation
within five years after date of judgment. An execution from n Justice is
may
be
served
on the president or head officer, if residing in the State,
a lien from time writ is received, if levy be made within thirty days,
and if not, on any officer, director, or manager of the corporation. In
and priority of writ remains for two years. Execution can not issue after
chancery
service
may be had by publication under order of the chancellor.
three years without revival. Goods and chattels of a tenant are liable
From a Justice service must be personal if forthwith, otherwise four
to one year’s rent in preference to the execution. There is no redemp
days
must
intervene
before hearing.
tion on property sold under execution or mortgage. In New Castle
county wages for a month of employes of corporations are preferred to
Taxes laid and imposed by the levy court of a county or by the State
the execution. Stay of six months is granted in courts of record upon
for its own purposes, are a lien upon all the real estate of the taxable
judgments recorded for want of affidavit of defense, provided security be
upon whom they are imposed, for two years, and such lien has preference
given within twenty days after judgment. In justice’s courts defend
to all other liens against him. General assessments are made every four
years.
,
ant may have six months’ stay, upon pleading his freehold; nine months’
stay upon giving security.
Wills. Any person of the age of twenty-one years or upward, ol
Exemptions. No homestead law. Family pictures, bible, and library;
sound mind, may make a will as well of real as personalestate. Every
lot in burial-ground and pew in church; all wearing apparel, sewing
will must be in writing and signed by the testator, or by some person
BANKING AND COMMERCIAL LAWS—DISTRICT OF COLUMBIA.
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 COMMERCIAL USAGES.
Prepared and Revised by John B. Larner, Esq., Attorney at Law,
Washington. (See Card in Attorneys' List.)
Acknowledgments. 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.
Acknowledgment of Deeds. When any deed or contract under
seal relating to land is to be acknowledged out of the District ot 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 . _tate,
any judge or justice of the supreme, circuit, or territorial courts of the
United States, or any justice of the peace or notary public: Prorided that
the certificate of acknowledgment aforesaid, made by any officer or 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
acknowledgment was in fact the officer he professed to be. Deeds made
in a foreign country may be acknowledged before any judge or notary
public, or before any secretary of legation or consular officer o^^ting
consular officer of the United States as such consular officer is d^tribed
in section 1674 of the revised statutes of the United States, and when the
acknowledgment is made before any other officer other than a secretary o
legation or consular officer or acting consular officer of the United States,
the official characterof the person taking the acknowledgment shall be ce fled in the manner prescribed as to deeds out of the District of Columbia
but within the United States. No deeds of conveyance of either real or
personal estate by individuals shall be executed or acknowledged by
attorney.
Actions. The common law formsbf actions;are used except>s mod
ified by statutes.
Administration. The Probate Court, a special term of the supreme
court of the District of Columbia, has exclusive j urisdiction of the settle
ment of estates. A written petition stating the facte in ^be case must be
filed with the register of wills. This petition is acted uIftn by aJ'18*1®®
of the supreme court of the District, who sits daily All executors and
administrators and guardians are required to give bond with “Chnty 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 the
deceased not to exceed double the value of the P®I8°Pa
. '
y net
of Congress, certain trust companies 1“corl’oral^d5^®“°5®L hLine
as executor or administrator without bond, and corporations> having
power under their charters may act as sureties in alUcasee
J11.'!1
viduals can. Creditors may be barred in thirteen months provided the
required notice is properly published. Probate Court may,order le of
real estate to pay debts, in case personal assets are insufficient.
Affidavits. Affidavits for use in the District of Columbia ishould be
taken before a Justice of the peace, notary public, judge
y
record, or a United States commissioner.
.
Aliens. Aliens may hold personal property in ,.^e
Columbia, and may acquire real estate by descent.
, . , over 50
are prohibited from acquiring real estate. Corporations1 ofwhich over 50
per cent of the stock is or may be owned by Per»°X? P«tte
Dtetrict
citizens of United States can not acquire or own real estate in Distr
of Columbia.
.
Appeals. Appeals will lie from justices of the peace to the 8nPjeme
court of the District of Columbia where more than $5.is involved,
and in actions for the recovery of P0"®"*0-®.
Columbia^to the
may be taken from the supreme court of the District of Columbia to the
court of appeals of the District of Columbia. App .
states in all cases
the court of appeals to the supreme court of the Dnit^ Statoi in all caare
involving $5,000, exclusive ol costs, or wheres a constitutional question or
some treaty with a foreign power is involved.
.
Arrest. There is no imprisonment for debttin the1 District<A^nmbia
The court has the power to imprison for ffion-payment. or alimony
d
,,..7.......
ks
that defendant la
to'hS£‘
to remove assign, dispose of, or secretefraudulently condelay and defraud credi
,
approved surety or sureties, to
tracted. Creditor must g v
’h am0^nt Of his claim for costs and
be approved by the Clerk, in twice tne iiniuuu. «
damages if attachment is wrongfully sue
•
»ni
~
tlp
law of England
relative to
bills and
Bills and Notea.
Thecommon
common^a
t,g
which
notes, except whetech
g
fe Y
Negotiable Instruments
".’tow 'inAfo‘,« “n“Si iMk («. W HolM.j. end
secure a debt of 'lPy.PL
gion jg valid and effectual to pass the title
donor shall rul’,al?
the narties to such instrument and as to other
herein, except as bet
j)f
un]eB8 the same be executed and acnersons
having act
from freai
the date of such acknowledgment
know edged^and
within ten davs
dayd8trom
recorded in the 88
.
, instrument shall be operative only from
sons not having notice Of it, SUCH iubuui
thprprnrripr nt' deeds
the time within said ten days when it is delivered to therecorder ot deeds
to be recorded.
1311
Collaterals. 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 of 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.
Contracts. 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
eral 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 the 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 he indebted to him, and
judgment will be rendered as if the others had not been joined in the
suit. Any of several joint debtors, when their debt is overdue, may make
a separate composition or compromise with their creditors.
Corporations. Any three or more persons may form a company for
the purpose of carrying on any enterprise or business which may be
lawfully conducted by an individual, excepting hanks of circnlation or
discount, railroads and such other enterprise or business as is otherwise
provided for. Such corporations may have a perpetual existence. No
such company lsauthorized to transact business until 10 per cent of the
capital stockshall have been actually paid in, either in money or property
at its actual value; and the recorder of 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 of such company are
severally and individually liable to the creditors of the company in which
they are stockholders for the unpaid amount dne upon the shares of said
stock held by them respectively, for all debts and contracts made by such
company, until the whole amount of 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 report shall state the
amount of capital and the proportion actually paid and the amount of
existing debts. Foreign corporations doing business in the District of
Columbia are subject to service of process on their agents or on the per
sons conducting their business,or by leaving copy thereof at the principal
place of business of such company, 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 he residents
of the District, to be annually elected, except for the first year, by the
stockholders, at such time and place as may be provided by the by-laws.
The fee of the recorder for filing all certificates of incorporation" where
capital stock is authorized is forty (40) cents on each $1,000 of the
amount of the capital stock of the corporation, as set forth in its cer
tificate, provided that no fee shall be lees than Twenty-five Dollars.
Courts In session continuously throughout the year. Suits on con
tracts, accompanied by sufficient affidavit of right to recover, result in
judgment in twenty days, exclusive of Sundays and legal holidays, after
day of service on defendant, unless defendant files an affidavit setting
forth facts’which, if true, would in iaw constitute a valid defense.
Days of Grace abolished.
Deeds. The following form of deed is now all that is required in the
District of Columbia to convey a fee simple title to real estate:
This deed, made this......... day of.;...., in the year........ , by me,..........
of.............. witnesseth: That in consideration of (here insert considera
tion), I, the said.................do grant unto (here insert grantee’s name), of
............ , all that (here describe the property).
Witness my hand and seal.
.............................(Seal.)
A deed must be acknowledged and recorded with the recorder of deeds
and takes effect from the time of recording. A scroll is considered a
sufficient seal.
Depositions. Depositions of witnesses to be used in any civil cause
whether the case be at issue or not, may be taken under any of the
following conditions: 1. Where the witness lives beyond the District
of Columbia. 2. Where the witness is likely to go out of the United
States or out of the District and not reiurn in time for the trial.
3. Where the witness is infirm or aged, or for any reason the party desir
ing his testimony fear he may not be able to secure the same at the time
of trial, whether the said witness resides within the District or not. 4. If
during the trial any witness is unable, by reason of sickness, or other cause,
to attend the trial, the deposition of such witness may, in the discretion
of the court, be taken and read at the trial. The deposition may be taken
before any judge of any court of the United States; before any commis
sioner or clerk of any court of the United States, or any examiner in chan
cery of any court of the United States; before any chancellor, justice, or
judge or clerk of any court of any State or Territory or other place under
the sovereignty of the United States, or any notary public or justice of the
peace within any place under the sovereignty of the United 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 in the event of the cause.
Descent and Distribution. The ordinary rules of descent may he
stated as follows: 1. If an intestate leaves a child or children, or
descendant of such child or children, his property descends to such child
or children, or their descendants, subject only to the dower right of the
widow, if there be one. 2. If the estate descended to the intestate on
the part of the father or mother and there he no child or the descendant
of any child, then to the brothers and sisters and their descendants.
3. If none, to the mother or father or the ancestors of the intestate and
their descendants of the blood of the mother or father, grandmother or
grandfather, as the case may be, subject to the widow’s dower. 4. If
none, then to the husband or wife and their kindred in equal degree,
equally. 5. No distinction between whole and half blood on part of
parent from whom estate descended. 6. If there be no heir, the lands
shall escheat to the District of Columbia. Personal Property: If a widow
and no child or descendants, parent, brother or sister or descendants, the
widow shall have the whole: il child or descendants, tne widow shall
have one-third only: if no child or descendants, but parent, brother, etc.,
the widow shall have one-half. The surplus shall go as follows: (1) if
children or descendants, to them equally per stirpes; (2) If no child or
descendants and a father, then to the father; (3) If no father, but a
mother, then to the mother; (4) If none, but a brother or sister or
descendants, to them equally per stirpes: (5) If none, to collateral re
lations in equal degree; (6) There is no distinction between the whole
and half blood; (7) No representation after descendants of brothers and
sisters; (8) Beyond the fifth degree, the personal estate goes to the Dis
1312
BANKING AND COMMERCIAL LAWS—FLORIDA.
trict of Columbia; (9) The husband on death of the wife is entitled to all
her personal property in possession without administration, but admin
istration is usually resorted to for protection of parties dealing with the
husband.
Divorce. Absolute divorces may be obtained in the District of
Columbia for the following reasons: Where there is a prior valid marriage
not dissolved. Where the marriage was contracted during the lunacy of
either party (unless there has been voluntary cohabitation after the
lunacy), or the marriage was procured by fraud or coercion. Where either
party is matrimonially incapacitated at the time of the marriage and has
continued so. Adultery by either party. Where either of the parties
has not arrived at the age of legal consent to the contract of marriage
(unless there has been voluntary cohabitation after coming to legal age)
but in such cases only at the suit of the party not capable of consenting.
Divorces mensa et thoro may be obtained for drunkenness, cruelty, or
desertion.
Dower. A wife is entitled to dower in all real estate owned by the
husband at the time of his death, including equitable as well as legal
estates.
Evidence. (See Depositions.)
Executions. Executions may be levied upon all goods and chattels
of the debtor nor exempt, and upon gold and silver coin, bank notes or
other money, bills, checks, promissory notes or bonds, or certificates of
stock in corporations owned by said debtor, and upon money owned
by him in the hands of the marshal or of the constable charged with the
execution of such writ, and also upon all legal leasehold and freehold
estates of the debtor in land. Executions on judgments before justices ot
the peace may be superseded, according to the amount of the judgment,
upon good and sufficient secnrity being entered by a person who may at
the time be the owner of sufficient real property located in the District,
above all liabilities and exemptions, to secure the debt, costs and interests
from one to six months, but there can be no stay of execution for wages
of servants or common laborers, nor upon any judgment for less than $5.
Exemptions. (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.
Foreign Judgments. Suits may be instituted in the supreme court
of the District of Columbia on any judgment of a court of record in any
other jurisdiction. The declaration in any such case must be accompanied
by a transcript of the record of such judgment verified according to the
act of congress in such cases made and provided, and judgment in due
course may be rendered on such transcript as in any other case.
Garnishment. After judgment the writ of garnishment may issue
against specific property or credits in the hands of the garnishee and on
the return of the writ, if there be credits, the judgment or condemnation
follows. The writ of garnishment can not be issued against the United
States or the District of Columbia.
Husband and Wife. The wife’s property is exempt from the hus
band’s debts. The husband may convey direct to his wife. The wife may
use all of her property of every description as fully as if she were unmarried,
and may dispose of the same by deed, etc., as fully as if she were unmar
ried. She also has power to trade and to sue and be sued, but no married
woman under the age of twenty-one years can make a valid deed or con
veyance. On the death of a married woman the husband is entitled to an
estate by courtesy in her fee simple property of which she dies intestate.
On the death of the wife intestate her entire personal estate becomes the
property of her husband. The husband is not liable for the debts of his
wife contracted before marriage. A husband, who willfully neglects to
provide for wife or minor child under sixteen years, in destitute circum
stances, may be adjudged guilty of a nWsdemeanor, and maybe fined, or
imprisoned, by the coutt having jurisdiction.
Interest. The legal rate of interest in the District of Columbia is 6
per cent, and in any suit where the contract is tainted with usury the
plaintiff forfeits the whole of the interest so contracted to be received,
and where usurious interest has been paid it can be recovered provided
action for such recovery be brought within one year. In an action on a
contract for the payment of a higher rate of interest than is lawful in the
District, made or to be performed in any State or Territory of the United
States where such contract rate of interest is lawful, the Judgment for the
plaintiff shall include such contract interest to the date of the judgment
and interest thereafter at the rate of 6 per centum per annum until paid.
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.
Protest. 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. The pro
test must be annexed to the bill or contain a copy thereof and must state
the (1) time and place of presentment; (2, the fact that presentment was
made and the manner thereof; (3) the cause or reason for protesting;
(4) the demand made and the answer given, if any, or the fact that the
drawer or acceptor cannot be found.
Records. 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 primafacie evidence of that fact. A copy
of the record of any deed or other instrument in writing, not of a tes
tamentary character, where the laws of the State. Territory, or country
where the same may be recorded require such record, and which has been
recorded agreeably to such laws, and the copy of any will which sabl laws
require to be admitted to probate and record, by judicial decree, and of
the decree of the court admitting the same to probate and record, under
the hand of the clerk or other keeper of such record and the seal of the
court or office in which the record has been made, is prima facie 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
eneral provisions of the code on that subject. No trust company can
e incorporated with less capital stock than $1,000,000. May do a storage
business with a capitalization of not less than $1,200,000. Foreign com
panies desiring to operate in the District must first comply with lhe pro
visions for the organization of trust companies tinder the laws of this
District.
Wills. All wills and testaments must be in writing and signed bv 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 of the testator to devise property
acquired after the execution thereof, shall be deemed, taken and held to
operate as a valid devise of all such property; and any will hereafter
executed, which shall 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
unless a contrary intention appear from the will.
SYNOPSIS OF THE LAWS OF FLORIDA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. Blount «fc Blount & Carter,
Judgment). Every judgment is good and enforceable by an execu
Attorneys at Law, Pensacola.
tion issued thereon for a period of twelve years from the date when an
execution might first have been issued thereon or from the date of the last
Accounts. Open accounts are barred in three years.
revival thereof by scire facias. Judgments of justices of the peace are not
Acknowledgments must in every instance be under official seal. If
liens on real estate until recorded in the supreme court of the District of
made in the State of Florida, may be made before any judge, justice ol
Columbia.
the peace, clerk or deputy clerk of a court of record, or notary public; or
Jurisdiction. (See Actions and Appeals.)
if made out of the State, and within the United States, before a United
States Commissioner of Deeds appointed by the governor of this State,
Legal Holidays. Legal holidays are January 1st, February 22d,
or before a judge or clerk of any court of the United States or of any
May 30th, July 4th, first Monday in September (Labor Day), December
state, territory or district, having a seal, or before a notary public or
25th, or the following day when any of these dates fall on Sunday, and
j ustice of the peace of such state, territory or district, having an official seal,
such day as may be appointed by the President of the United States for
and thecertificate of acknowledgment or proof shall he uuderthe seal of
fasting and prayer. Every Saturday is a legal half holiday and notes fall
the court or officer as the case may be. if made out of the United States,
ing due on tbat day are not protested until Monday. Process is not issued
before any commissioner of deeds appointed by the governor of the
or served by the marshal after 12 o’clock on Saturday.
State to reside in such country, or any notary public of such foreign
Limitations. Fifteen years for recovery of lands, tenements or
country,
or before any minister charge d’affaires, consul-general, consul,
hereditaments; executor’s or administrator’s bond, five years; instruments
vice-consul, commercial agent, or vice-commercial agent of the United
under seal, twelve years; simple contracts and recovery of personal prop
States appointed to reside in such country. Conveyances of dower and
erty and damages for its unlawful detention, three years; statutory pen
powers of attorney for the execution of deeds to real estate must be
alty or forfeiture, libel, slander, assault, battery, mayhem, wounding,
executed in like manner as conveyances of real estate. A wife’s ac
malicious prosecution, false arrest or imprisonment, one year; all other
knowledgment must be taken separate and apart from her husband's.
actions three years. Usual exceptions in favor of persons under disability.
Officers must certify that the grantors are known to hlfii. The following
Acknowledgment to revive action on debt must be in writing. Part
is the usual form adopted, viz:
payment wHl take debt out of statute.
State of Florida,
1
Married Women. (See Husband and IFt/%.)
County of........................... (
Mortgages. Mortgages are almost entirely supplanted by deeds of
Before the subscriber personally appeared........................................... and
trust, requiring no court proceedings to foreclose. Joining the wife is
his wife............................ known to me to be the individuals described in
necessary to bar dower.
and who executed the foregoing instrument who acknowledged that
they executed the same for the uses and purposes therein expressed;
Partnerships. Limited partnerships for the transaction of any mer
and the said...............................................................wife of the said ................
cantile, mechanical, or manufacturing business within the District may be
formed by any two or more persons, Dut the number of special partners j .................................... being by me further and privily examined separate
and apart from her said husband, acknowledged and declared that
is limited to six. The special partners are not liable for the debts of the
she executed the same freely and voluntarily, and without fear, appre
partnership beyond the fund contributed by them to the capital. A cer
hension, compulsion, or constraint of, or from, her said husband, and
tificate setting forth the firm name; general nature of the business to be
for the purpose of renouncing and relinquishing all her right, of what
conducted; names of all the general and special partners interested
soever kind, in and to said property.
therein, distinguishing which are general and which are special, and their
Given under my hand and seal official this ............. dayof............. 19....
respective places of residence; the amount of capital contributed by each
BANKING AND COMMERCIAL LAWS—FLORIDA.
Actions. Suits shall be begun only in the county (or, if less than 8100
in justice district) where the defendant resides, or where the cause of
action accrued, or where the property in litigation is. If brought in
any county where 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
defendant. This latter provision does not apply to suits against non
residents. Where there are joint defendants, suit may be brought in any
court (or justice district) where any one of the defendants reside, or
where the cause of action accrued or where the property in litigation is.
Corporations (domestic) can only be sued in a county where they kaep an
office. Foreign corporations may be sued in any countv where they have
an agent, or where the cause of action accrued or where the property in
litigation is.
Administration of Estates. Upon the death of a person intestate
or having made a will but appointin': no executor, the probate court
appoints an administrator, preferring first the next of kin; but if none
such apply, then, upon notice given by publication, any creditor or
suitable person. No minor can be appointed. If no one applies for
letters of administration within sixty days after death, the probate court
may order the sheriff to act. The administrator appointed by the court
must give bond in amount to be fixed by the probate judge, respect being
had to the value of the estate. The sheriff when acting as administrator
is liable upon his official bond. Claims against an estate are barred after
two years from date of notice given by 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
State, three years, 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.
Aliens. No distinction between and citizens, except that they are
not allowed to vote.
Appeals. Appellate proceedings for the common law side are by
writ of error, which must be sued out within six months from the date of
the judgment. The record must be filed in appellate court on or before
the return day of the writ, under penalty of dismissal. Questions of tact
can only be taken up by bill of exceptions, which must be presented
within the term of the court unless by special order the time is extended.
Appeals in chancery may be taken within six months and the law govern
ing writs of error as far as it relates to filing of transcripts of records and
proceedings thereon and filing assignment of errors, the. duty of appel
late court in giving judgment, in causing execution of its decrees and
quashing writs of error, are applicable to appeals in chancery. Notice of
appeal in chancery must be filed with cierk and recorded m minutes.
This gives appellate court jurisdiction.
Arbitration. Parties to the controversy may make a rule of court of
any arbitration to which they may desire to submit by filing a statement
of agreement of the matters they desire to arbitrate in writing with the
court having jurisdiction, which statement shall include the names of
the arbitrators and the umpire. An award upon such arbitration can
only beset aside for fraud, corruption, gross negligence, or misbehavior
of one or more of the arbitrators or umpire, or evident mistake acknowl
edged by the arbitrators or umpire, who made and signed the award.
Arrest. No arrest for non-payment, of money unless it be for non
payment of a fine lawfully imposed
Assignments and Insolvency. Assignments by insolvents are
provided for by law. Preferences are not allowed. All property, except
that which is exempt, must be surrendered to the assignee. Assignee
gives bond and winds up estate. The assignment does not release debtor
from debts not satisfied by it.
Attachment process may issue upon affidavit made, setting forth
that amount is actually due; that plaintiff has reason to believe defend
ant will fraudulently part with his property before judgment can be
recovered, or is actually removing his property, or is about to remove
it out of the State, or reside beyond the limits thereof, or is actually
removing or about to remove out of the State, or absconds or conceals
himself, or is secreting property or fraudulently disposing of same, or
actuallyremoving, or is about to remove, beyond the judicia1 circuit in
which he, she. or they reside. Attachment may also issue for a debt not
due, upon affidavit stating that the debt is actually existing, and that the
defendant is actually removing his property beyond the limits of theState,
or is fraudulently disposing of his property for the porposeof
avoiding the payment of his just debts or demands, or Is fraudulently
securing his property for such purpose. Proof must,
I
ited to the officer by affidavit other than that <*/*« ’hinnff. of the
existence of the special ground. The making of the affi'
all debts to mature for the purposes of the suit. Platntlff must
give bond, with two securities, in at least double the debt or
sum demanded. Service of notice of the suit may be’ eiJh®\
by publication where attachment is levied and Pr£P. y ,
s t
t
by defendant. No arrest allowed in civil “ctl°ne. Writs
’ d Tro
may be issued at commencement of suit or at any t
,’p,
vided tlie plaintiff, his agent or attorney, will
a®n 2that he
does not believe the defendant will have in hismade
State and county, visible property on which a levy
>
sufficient to satisfy such execution as he believes he shall be abie to ob
tain, and that affiant expects to obtain a judgment for (a specified amount)
Banks No banking company shall be organized with a capital less
than $50,<100, except that banks with a capitalI of not less than
mav with Annroval of comptroller, he oiizanized in bd.
“-7 or town
conuiVn/noPt more than 3*000 inhabitants andJhat bankswith a capita.1 stock of $25,000 may, with the »PPr°v«l of LhJ, inh
’
ganized in any city or town of not more than q
_nh.,bita
,
Savings banks may have not less than $-0,000 capital. Ba15*5*
are formed as other corporations are, and can not begin business until
authorized by the comptroller. The comptroller of the State may Inspect
.nd
hii.iness of the bank, and inspect and examine its
books^ papers, documents, minutes, and everything pertaining to the acts
of the hank Ranks are required to make a semi-annual return to the
State comDtroller of resourced and liabilities, and advertise in January of
ea^h ve“P amoirnt of stock" property, and contractual indebtedness.
Before organization 50 per cent of the capital stock mint be paid in
cash- 10 per cent each month thereafter. Stockholders are individually
liable to the extent of their stock at the par value thereof, in addition
to the amounUnvested in said share.. Directors must be cititen. of the
1313
United States, and own ten shares of stock of $100 per share. The comp
troller, with the aid of the courts, winds up the affairs of insolvent banks.
Bills of Lading. Bills of lading are evidence against the carrier oi
the direction by which freights are to be received, carried, and delivered—
collector or holder of commercial paper, attached to bill of lading not a
warrantor of the quantity or quality of the goods represented thereby
except by express contract in writing, and the officers, agents, and
employes of the carrier are required to comply with the terms of tlie bill
of lading under penalty of criminal prosecution.
Chattel Mortgages and Deeds of Trust. All conveyances intend
ed to Becure the payment of money are mortgages. Chattel-mortgages
must be recorded or the property delivered to mortgagee to make them
effectual against bona fide creditors and purchasers for value. Injunction
will be granted against the removal of mortgaged personalty from the
State; can only be foreclosed by bill in chancery unless under $100, and
upon personal property, when a common law action may be brought in
justice of the peace court, and mortgage filed with precipe. The form
and effect of trust deeds have not been disturbed bv statute. It is a crim
inal offense to mortgage personal property more than once without the
consent of first lienor.
Collateral Security. It is a misdemeanor to sell, pledge, loan, or
in any way dispose of collateral security w-ithout the consent of pledgor.
A written agreement may be made at the time of making the pledge for
the sale of the collateral in such manner and upon such terms as the
parties may desire.
Contracts. In order to bind an administrator personally, or one for
the debt or default of another, or one upon an agreement made in con
sideration of marriage; or upon contracts for the sale lands, tenements,
or hereditaments or any uncertain interest therein, or for any lease thereof
for a period longer than one year; or upon an agreement not to be
performed within one year, there must he an agreement, note, or memoran
dum thereof in writing sigfied by the party to be charged, or some one
lawfully authorized by him. Contracts for the sale of personal property
must be in writing, or the property must he delivered or earnest money
paid. Newspapers must either be subscribed for or ordered in writing. ’
Conveyances. (See Acknowledgments.) All conveyances of real
estate, or any interest therein for a term of years of more than two years,
must be by deed in writing, signed, sealed and delivered in the presence
of at least two subscribing witnesses; and in order to be effectual against
subsequent grantees or incumberances, must be recorded. The wife’s
separate estate can be conveyed only by the joint deed of herself and
husband, and confirmed by her acknowledgment, taken separate and
apart from her husband. Words ol' limitation unnecessary. Husband
may convey direct to wife.
Corporations may be organized for any lawful business under a
general law. Stockholder liable only for amount unpaid npoD subscrip
tion. Charter fee of $2 for every $1,000 of capital stock, payable to the
State, but no fee is less than $5 and none over $250.
Costs. Non-resident plaintiff required to give $100 bond to secure
costs. The defendant may have suit dismissed if bond not given.
Courts. Circuit courts hold two terms a year in each county, and
have original jurisdiction in all equity cases, also in all cases at law
not’cognizable by inferior courts. County courts have jurisdiction of
amounts not exceeding $500. County judges, at all time? open for pro
bate business, have full probate powers, have also civil jurisdiction to
extent of $100. Justice’s jurisdiction, $100.
Creditors’ Bills may be brought before claim is reduced to judg
ment, hut suit ai law must be first brought anu judgment must be ob
tained before decree can be rendered.
Days of Grace are abolished.
Depositions may be taken upon commission when witness resides
out of the county, or is bound for sea, or is about to go out of the State to
remain until after the trial of the cause, or is very aged or infirm; or when
oath is made that a material part of the case or defense depends upon the
testimony of such witness. The time forthe suing outof the commission,
the names of the witnesses, and the name of one commissioner must be
given to opposite side a reasonable time before commission is issued.
Printed instructions for the guidance of commissioners usually accom
pany commission. Fees of not less than $5.00 a witness are to be taxed
as costs by the elerk and paid by losing party.
Descent and Distribution of Property. Property descends: 1.
To the children and husband in equal shares. 2. If there be no children
then all to the husband or wife. 3. If there be no children, husband or
wife, then to the father or mother in equal shares, or to survivors. 4.
If no father or mother then to the brothers and sisters and their de
scendants. 5. If there be no brother or sister nor their descendants,
then the estate shall be divided into moieties, one of which shall go to the
Daternal and one to the maternal branches in the following course: 1. To
grandfather. 2. To grandmother, uncles and aunts. 3. To greatgrand
fathers. 4. To great-grandmotner, brothers and sisters of great grand
fathers, etc., passing first to nearest lineal male and then to lineal female
ancestors and their descendants.
The estate of an infant decedent,
if without issue, Paving no husband or wife, shall descend: 1. To father
of infant. 2. Mother of infant. 3. Brothers and sisters of infant.
4. In case no father, mother, brothers, or sisters or tlieir descendants
surviving, then it descends according to the general rules of descent
prescribed by statute. Half-bloods inherit only one-half. Adopted
children are treated as children of blood. Bastards inherit and transmit
through mother’s side, as if legitimate. Aliens have same right as citi
zens. There are no entailed estates nor right of survivorship.
Divorce. Only absolute divorces are granted, and upon the following
grounds: adultery, natural impotence, prohibited degrees of kinship,
extreme cruelty, habitual indulgence in violent temper, habitual intem
perance, willful and continued desertion for one year. Divorce obtain
ed In another State or country; that either party has another husband or
wife living. Alimony or suit money will be granted upon wife’s appli
cation and will be allowed upon same grounds as would justify an abso
lute divorce. Party seeking divorce must have been a resident of
State for two years, except when adultery is charged any citizen of
the State may file a bill without regard to length of residence.
Dower. The widow is entitled to one-third of the real estate for life,
and one-third of the personalty in fee simple. May within one year elect
to take a child’s part in lien of dower.
Evidence. Witnesses not disqualified by reason of interest. In civil
cases, husband and wife may testify for or against each other. In suits
by or against lunatics or personal representatives, heirs-at-law, next of
4
1314
BANKING AND COMMERCIAL LA WS—FLORIDA.
kin, assignee, legatee, devisee, or survivor of a person deceased, no evi
dence of a transaction or communication between such lunatic or deceased
person and the opposing party or those under whom he claims, can be
given by the opposing party, unless such evidence is first offered in behalf
of such lunatic representatives, legatees, devisees, etc.
Executions. Executions can be issued immediately upon the entry
of the judgment and within three years thereafter, and are a lien upon
real estate from date of entry, and upon personal property from the time
the sheriff receives them. They can be renewed at any time within
twenty years from entry of judgment. Both real and personal property
are subject to sale under execution. Executions are returnable when
satisfied, sheriff reporting progress at each term. Sale day first Monday
in each month. No stay law. No redemption of property sold under
execution.
Exemptions to every head of a family residing in the State home
stead of 160 acres of land, and improvements, if in the country; one-half
acre of ground, if in an incorporated city or town, together with $1,000
worth ol personal property. The exemptions in a city or town shall not
extend to more improvements or buildings than the residence and busi- ;
ness house of the owner. No property is exempt from sale for taxes or
assessments, or for obligations contracted for its purchase, or the erec
tion or repair of improvements thereon, or for house, field, or other labor
performed thereon. The wages of every laborer who is the head of a
family residing in the State, are exempt from garnishment.
Foreign Corporations. Commercial corporations can do business
in this State without restriction. If no officer in State upon whom service
of process can be made, such service may be made upon any agent
transacting business for it in the State.
Foreign Judgments. Judgments obtained in the several courts of
the State, may be recorded in any county and have same force and effect
as if originally obtained therein. Judgments obtained in other States or
countries, merely evidence, and have to be sued upon to be made effective
as judgments.
Fraud. (See Limitations of Actions.) Obtaining money or property
under false pretense or by falsely personating another, are punishable
criminally.
Garnishment. (See Attachment.)
Guaranty Companies. Guaranty Companies are permitted to
become surety upon bonds for all purposes after complying with certain
statutory requirements.
Holidays. Whenever reference is made, in contracts to be performed
in Florida, to legal holidays, such day shad be understood to be the days
mentioned under title Notes and Bills of Exchange, and Good Friday.
Husband and Wife. The husband has full control of wife’s property
and is not chargeable by the wife with the rents and profits. Must be
joined with wife in sales of her property. Homestead can only be
alienated by their joint execution. Husband not liable for wife’s antenup
tial debts. Has no interest in her separate earnings. Has action for
negligence causing her death; wife’s property not generally liable for
husband’s debts. Wife may sue with respect to separate estate without
husband joining. Infant wife may join husband in sale of her real
estate.
Injunctions. 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.
Insolvency. Statutes suspended by national bankruptcy law.
Insurance Companies. 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.
Interest. Eight per cent is allowed on judgments and contracts
where interest is payable but no rate is specified. Contract for more
than 10 per cent is usurious, and all interest forfeited.
Judgments of a court of record are a lien for twenty years upon
real estate ol debtor within the county where rendered, and may be
extended to other counties by recording certified transcript of judg
ment in any county where a lien is sought. Judgments of justice of the
peace may be made a lien upon real estate by recording in the office of
clerk of circuit court.
Liens. In order to secure a lien by lis pendens, a statement must be
filed with the clerk of the circuit court, and recorded by him in a book
kept for that purpose, setting forth the names of the parties, and the
nature of the relief sought, ana the description of the property upon which
it is desired to obtain alien. Statutory liens are given to laborers and
material-men. Property for which materials are furnished upon which
labor has been done, is liable to persons not in privity with owner to the
extent of the unpaid balance of debt due to contractor. Owner per
sonally liable in like amount. Statutory liens upon real estate, in order
to be available as against subsequent purchasers or lienors, must be re
corded within three months, and suit must be brought within twelve
months after the furnishing of the material, or the performance of the
labor. Liens upon personal property exist only whue possession is re
tained by lienor.
Limitations of Actions. Civil actions can only be commenced
within the following periods after the cause of action shall have accrued,
to wit: Actions for the recovery of real property—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(l) year.
Married Women 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'6 debts except by her written consent executed
according to law regulating conveyances of married women. Hus
band must join in all sales, transfers, and conveyances of the wife’s
property, except when he has been adjudged insane for more than a year.
Wife may sue concerning her real estate without joining her husband with
her in the suit. Widow takes as dower a life estate in one-third part of
the real estate of which her husband was seized and possessed at any
time during her coverture, and an absolute one-third of all personalty;
or may at ner option take a9 an heir equally with the children of the
husband, and if there are no children she will inherit all the property,
real and personal.
Mortgages 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 of mortgagee if left in his
possession more than two years without the mortgage being recorded.
Notaries. 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 of expiration of commission.
Notes and Bills of Exchange. Form and interpretation defined
by statute. No requirement that it shall be made payable at a bank or
any fixed place. 5 per cent damages are allowed on foreign com
mercial paper protested in this State. Bills of exchange, bank checks,
and promissory notes which are presentable for payment or acceptance
on Sunday, New Year’s Day, Christmas Day, 3d of June, 4th of July,
22d of February, 19th of January, 26th of April, first Monday 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.
Partnership, Limited, and Special.
None.
Powers of Attorney. Any contract or conveyance may be made
by power of attorney. A conveyance of a married woman’s real estate
by power of attorney in order to be valid the power of attorney must be
acknowledged by her separate and apart from her husband, and the
acknowledgment must state that she executes it freely and voluntarily,
without compulsion, fear, apprehension, or constraint of or from her
husband. The husband must join either in the deed or powers of attorney.
Powers of attorney for the conveyance of real estate must be recorded.
Probate Law. (See Administration of Estates.) The county
judge has original jurisdiction of all matters relating to the administra
tion of estates of decedents.
Protest. (See Notes and Bills of Exchange.)
Records. Records of deed and mortgages are kept in tbe office of the
clerks of the several circuit courts, aud the original must be recorded in
the county within which the property lies. Wills are required to be
recorded with the several county judges 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.
Redemption. None, excepting tax sales.
Replevin 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 the State,
nor seized under execution or attachment against the goods and chattels
of the plaintiff; liable to execution and bona in double the value of the
property with two sureties given before the writ is issued. Defendant
may release the property witnin three days by forthcoming bond.
Service of Process. 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.)
Suits. Actions at law are commenced by filing a precipe with the
clerk. Personal service is required except in suits by attachment and
amishment. Writs are returnable on the next rule day, provided ten
ays intervene; if not, then on the rule day in the next succeeding
month. If no appearance of defendant, default is entered forthwith.
Default may be entered for want of plea or other pleading on rule day,
next after appearance day.
Taxes. 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 jndgment upon which exe
cution may issue.
Testimony. (See Depositions.)
Transfer of Stock. Stock is transferable in the manner prescribed
in the by-laws. No stock can be transferred until, after all previous assess
ments thereon have been fully paid. The transferee succeeds to all the
rights and liabilities of the prior holder.
Warehouse Receipts. 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.
Wills. 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 properly. Revoca
tion must be in writing, attested by two witnesses. Wills must be
robated before admittance in evidence. Foreign wills, when duly proated 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.
BANKING AND COMMERCIAL LAWS—GEORGIA.
SYNOPSIS OP TIIE
LAWS OF GEORGIA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Wimbish, Watkins & Ellis, Attorneys at Law,
Atlanta.
(See Card in Attorneys' List.)
Acknowledgments.
(See Deeds.)
Actions. All distinction between suits at law and in equity is
abolished. Equitable relief can be had in superior courts of law.
Administration of Estates. Letters of administration issue in
the line of preference, first to the husband or wife, second to the next
of kin, relations by consanguinity are preferred to those by affinity.
If there are several of the next of kin in the same degree, preference
is given to that one selected in writing by those most interested m
the estate. If no preference is expressed the ordinary exercises
his discretion. If no application is made by 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 eacn
deceased person, the first charge, after funeral expenses, is a year s
support for the family, to be laid off by 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 same.interest and will give the
same bond as in the case of foreign administrators. Administrators
of other States may sue in this State by filing m the office of the
clerk of the court, to which suit is brought, a properly authenticated
copy of their letters of administration.
Affidavits. Pleas and defenses in the courts of this State which
are required to be under oath, may be made before any official ot
the State or county where the oath is made, who is authorized by
the laws of such State or county to administer oaths. Prima racie
the official attestation of the officer is evidence that he was author
ized to act. Any non-resident seeking equitable relief, when, called
on to verify proceedings, should be sworn before a commissioner
of this State, or a judge of a court of record where the oath is made,
with the attestation of the clerk of such court that the signature of
the judge is genuine, and that the court over which he presides is
a court of record.
Aliens. The subjects of governments at peace with the United
States and this State are entitled to the rights of citizens of other
States, resident here, in so far as they accord to them the privilege
of purchasing, holding, and conveying real estate.
Appeals. (See Courts.)
Arbitration. Under the law of Georgia disputes and controversies
relating to rights, or property, may be submitted to arbitration.
Arrest. The constitution of Georgia declares that there shall be
no imprisonment for debt. But in an action to re , p
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 securitv, or deliver up the property, or sho
tion of the court that it is without his power to produce it.
Assignments. Assignments for the benefit of creditors are per
mitted.
,h.A5S£»«.:A
US £ “ SXny 3re WW' » TSfiX-g
LS uTLiS "hS
debt®
threatens to conceal, his property, liable for the pay
.
,. , , '
or shall make a fraudulent lien thereon to avmd paymg ffi? debt
Attachment will lie to recover the purchase “OW an “t*^tJchwhen the debtor is-still ‘".^‘bv^heZintiff his^gent & attorney,
ments may issue upon affidavit by tne piamiiu, m s
authorize
who must swear that one of the state of facts e.
Bond and
an attachment, and also as to the amount of the .^\he affidavit
security, in double the amount sworn to must accompany the^affidavit
and the officers require personal security. 5 on
attach the
are liable to attachments, and one non-re.
pvee'Dt for wages
property of another non-resident in this State, except tor wages
earned without the State.
Banks. Any number of persons, not less,th?'L h^’of'bankin^
a corporation for the purpose of carrying on‘ *
have continual
Such corporations, when organized, has po
. .
d be
succession for thirty years, with right of renewal, to sue and be
sued; to have and use a common
to appomt officers ana
agents; to make by-laws; to 1«
for £
such real and personal. Property as
or other evidences of
uses and business; to discount bills, n with or without interest;
debt; to receive and P»X
depout^ foreign exchange; to lend
to receive special deposits to deal in
g
negQtiable
money upon personal security, or p eages
tgage or otherwise
security; to take and receive ^cunties by fmtheBc«
tion ghall
on property real or personal. TheJmsin
of directQrg tQ
be under the management aiud
fifteen of thg memberg of
consist of not less than th • ownerg and holders of one or more
the
corporation,
a capital
shares
N?t ba’jkwho
sh^lmu.
be chartered without
^itn
Pgg subscription
in good faith of at least $2o,00ffi o must be paid in before filing
cent, and in no case less tten S15.0W
corporation shall
the declaration with, the secretary
o{ -tg
and itg
asseffiZnTeLd°stockhoK
be individually liable for all debts
assets, ana eacn siocki o
® bi unpaid shares of stock, and
the corporation to the' extent■
pquallyt and ratably (and
shall be further ami a
- jepositors of said corporation, for
not one ^ another as suretie^
equal t0 thP face value
of E^espTscti^e shares. All corporations doing a banking busioi tneir respescnv e
,
. tbe gtate bank examiner, under
ness in this state sha
resources of the bank or corporation,
oath, statements showing tne resuuivc
hnnV pvaminpr
at the close of business on any day specified bj the bank examiner.
1315
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,
ana 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
in 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.
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 no e 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 corporation^ 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 1 a private corporation is obtained by a
etition to the superior court, setting forth the object, particular
usiness, corporation name, capital, place of business, time for which
incorporation is desired, not exceeding twenty years. The petition
and order granting the same constitute the charter. In such corpora
tions the liabilities of the stockholder is measured by the amount
of unpaid stock subscription due by him. In the charter of many
banks now organized the rule of personal liability varies. In some
banks stockholders are liable as partners: In others liability exists
under the general rule, viz: to the extent of twice the amount of stock
held, and in some banks liability exists only to the extent of stock
and unpaid subscriptions thereon. The payment of 10 per cent,
of the capital stock is necessary before commencing business. General
powers of corporations are conferred on all corporations organized
in this state. All corporations organized under the laws of the State
or doing business therein are required to register with the Secretary
of State and pay one dollar or be liable to a penalty of fifty dollars.
Costs. A deposit of ten dollars is required in courts of record
from non-resident plaintiffs before the filing of suits and a deposit
of six dollars in all divorce cases.
Courts. The term, jurisdiction, etc., of the several courts of this
State are as follows: JUSTICE COURTS hold monthly sessions and
have civil jurisdiction up to one hundred dollars. In criminal matters
they are only committing courts. COURTS OF ORDINARY hold their
sessions monthly and have jurisdiction over wills, administrations of
estates, and of the conduct of administrators, executors and guardians.
COUNTY COURTS have monthly and quarterly sessions. Their juris
diction is limited to controversies not exceeding three hundred dollars.
CITY COURTS hold four sessions per annum, but the city court of At
lanta has six terms. The jurisdiction of city courts is unlimited, except
in matters of divorce, titles to land and administration of equitable relief.
SUPERIOR COURTS ha,ve jurisdiction of all suits and controversies
and have exclusive jurisdiction in equity powers, divorce cases, and
suits involving titles to land, and on the criminal side exclusive jurisdic
tion of all cases involving life or imprisonment in the penitentiary.
C
Deeds. Deeds to real estate in Georgia must be m writing, and
should be executed in the presence of two witnesses, one of whom shall be
an officer authorized for that purpose. They should be recorded in the
office of the clerk of the superior court of the county where the land lies,
and all deeds, mortgages, and other liens, should be recorded immediately
to be available against third parties and innocent purchasers. To authorize
the record of a deed to realty, it must be attested by or acknowledged be
fore, if executed out of this State, a commissioner of deeds for the State of
Georgia, notary public, clerk of a court of record, or a consul, or viceconsul of the United States (the certificates of these officers under their
seals being evidence of the fact). When the deed is executed out of this
State before a notary public, the attestation should be under his hand and
official 6eal. In case of acknowledgment it is better, as a matter of
precaution, always to have two witnesses, besides the officer who takes
the acknowledgment. If executed in this State, it must be attested by a
judge of a court of record of this State, or a justice of the peace, or notary
public, or clerk of the superior court, in the county in which the three
last mentioned officers respectively hold their appointment, or if subse
quent to its execution the deed is acknowledged in the presence of either
of the named officers, that fact, certified on the deed by such officer, shall
entitle it to be recorded. [Act of 1893.] Deeds to secure loans are in
more common use than mortgages because they have been held to pas
the absolute title and protect against year’s support and dower, the equit
1316
BANKING AND COMMERCIAL LAWS—GEORGIA.
of redemption remaining in the maker, can not be levied upon until the
debt to secure which the deed has been made has been paid off. Under
the law of Georgia Jhese 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.
the county where the debtor resides, or the land is situated. The
proceeds to be re-invested upon the same uses, A general waiver
in writing, of the homestead, or exemption, is good.
Foreign Corporations. All corporations, except those chartered and
organized under the laws of this State, are held to be foreign corporations.
Such corporations are recognized by comity only; they are subject to
attachment, 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
Depositions. Testimony ts taken in this State by written interroga
which would be contrary to the public policy of this State. There is othertories 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 i wise no restriction upon foreign corporations except in the case of insur
ance companies and building and loan associations, which are required to
unable to attend court. In counties within this State, having a pop
make deposits. All corporations are subject to license fees for doing
ulation of over 20,000, depositions may be taken upon five days’ notice
business and all are liable for taxes on property owned or held in the
to the other party of the time and place at which the witness is to be exam
ined. This latter process cannot be used for taking testimony outside of the | State. (See Corporations.)
State. In taking answers to interrogatories, which must be authorized by
Fraud. Contracts, awards, marriages, judgments, sales, and wills
a commission issued for such purpose by the court here, two commis
are void when they are brought about and procured by fraud. Promissory
sioners must act. Commissioners must be disinterested and not related to
notes when procured by fraud are void in the hands of the holder, who so
either party, or connected with the case; attorneys of the parties are incom
procures them. The statute of frauds, as of force in Georgia, requires the
petent. None of the parties to the case, nor their agents or attorneys, can
following obligations to be in writing, signed by the party, or his author
be present when the commission is executed. The witness can only write
ized agent, to be binding: 1. A promise by an executor, administrator,
his answer in the presence of the commissioners. It is usual, and the bet
guardian, or trustee, to answer in damages out of his own estate. 2. A
ter practice, for one of the commissioners to write the answers of the wit
promise to answer for the debt, default, or miscarriage of another. 3. An
ness as they are given. Depositions may be written with the typewriter,
agreement made upon consideration of marriage, except marriage articles
and commissioners may adjourn their sittings from day to day. The
as otherwise provided. 4. Any contract for the sale of lands, or any inter
following instructions for taking testimony are important: Instructions
est in or concerning them. 5. Any agreement that is not to be performed
for taking answers to interrogatories: 1. Insert the commissioners’ names
in a year. 6. A promise to revive a debt barred by statute of limitations
in the commission; any two respectable citizens will do. 2. State the case
or bankruptcy. 7. Any contract for the sale of goods, wares, and mer
as you find it. Then comes the caption, thus:
chandise, inexistence or not in esse, to the amount of $50 or more, except
State of.............................1
(Here insert the county and State where
the buyer shall accept part of the goods sold and actually receive the same
County of........................., **• the commission is executed.)
or give something in earnest to bind the bargain or in part payment.
By virtue of a commission from the............... court of ............... county,
8. An acceptance of a bill of exchange.
we have caused the person in said commission named to come before us,
Garnishments. This process may be invoked in any case."’’Gar
who being duly sworn true answers to make to certain interrogatories
nishment may be dissolved by giving bond and a third party may
thereto annexed, deposeth and answereth as follows: (Here insert
claim a fund held up under garnishment and may release the fund by
answers of the witnesses to each interrogatory in order.) 3. Let the wit
giving bond. Wages of laborers, journeymen and mechanics, are ex
ness sign the answers; then say: “Answered, sworn to, and sub
empt from process of garnishment.
scribed before us, this..........day of........................ 18.Then sign your
own names, adding the words “ Commissioner (L. S.) ” after each name.
Interest. The legal rate of interest in Georgia is 7 per cent, but 8
4. Seal all up together, using two wafers, each commissioner writing his
is legal when contracted for in writing. Parties charging usury forfeit
name with “Commissioner ’’ across a wafer or seal. 5. State the case on
the
excess if usury is set up. And usury will render a deed void, and will
the package, and address it to the clerk of the court issuing the commis
in a contract or mortgage render a waiver of homestead, or contract to
sion. 6. If it is to go by mail, get the postmaster to receipt on the pack
pay
attorneys’ fees, void.
age, “ Received from one of the commissioners (giving his name) the
Judgments create liens from their rendition upon the real or per
within interrogatories, to be forwarded by due course of mail,’’ naming
sonal property of the defendant: all judgments at the same term rank
his post-office. Testimony thus taken must be sent by mail, or by some
equally, and property sold by a debtor after judgment is obtained against
person specially authorized by the commissioner to carry it to the court.
him is only discharged from the lien of such judgment, if real estate, after
Descent and Distribution of Property. The husband is the
four years’ possession by the vendee, and in cases of personal property,
sole heir to his intestate wife, unless she leave children, and in that event
after two years’. Judgments, whether in the United States court, or in any
the husband and children shall inherit per capita, but the descendants of
State court, obtained many other county than that in which the defendant
children shall take per stirpe. If a man die without children, or the
resides have no lien on the property of the defendant in any other
descendants of children, leaving a wife, the wife is his sole heir. If there
county, unless the execution thereon is recorded in the county of the
are children, or those representing deceased children, the wife shall take
defendant’s residence. Unless such execution is recorded as so re
a child’s part, unless the shares exceed five in number, in which case the
quired within thirty days, its lien will only date from the ..time of
wife shall have one-fifth part of the estate. If the wife elects to take her
record. (See Actions.)
dower, she has no further interest in the estate. Children stand in the
Jurisdiction. (See Title Courts.)
first degree to the intestate, and inherit equally. Posthumous children
License. No license is required^ of commercial travelers. Itinerant
stand upon the same footing with other children. Lineal descendants of
children stand in the place of their deceased parents, and take per stirpe, : traders must pay license fees.
and not per capita. Brothers and sisters stand in the second degree and
Liens. Under the laws of Georgia mechanics, material-men, machininherit if there be no widow or children, or representatives of children. f ists, employes of steamboats, millwrights, builders of gold mine machines,
The half-blood on the paternal side inherit equally with the whole blood.
stone-cutters, and marble works laborers have special liens on property
The father, if living, inherits equally with brothers and sisters, and stands i improved or worked on. Landlords have a general lien which takes
in the same degree. If there be no father, and the mother is alive, she shall ■ effect from the levy of distress and a special lien on crops for rent of
inherit in the same manner as the fafher would. Real estate descends
land on which they are raised. Common law liens of innkeepers, factors,
direct to the heirs, and personal estate to the administrator. But real
pawnees, carriers, attorneys and others are recognized. Vendor’s lien on
estate is subject to administration for the purpose of paying debts, and
land has been abolished. Attorneys have a special lien on papers in
if necessary, for distribution.
their hands and on property recovered in suits brought by them or suc
cessfully defended by them.
Divorces. Total or partial divorces may be granted in this State.
Limitations. Suits on open accounts are barred after four years, on
Suits can only be brought in the superior courts, and must be commenced
by petition. Such suits stand for trial at the second term, and there j promissory notes and bills after six years, on instruments under seal after
twenty
years, on suits for personal injury after two years. Seven years’
must be two verdicts by separate juries, rendered at different terms, to
adverse possession of real estate under color of title, and twenty years’ ad
authorize a total divorce. Divorce cases shall be brought and tried in the
verse possession without color of title, will bar the claims of all persons
county where the defendant resides, if a resident of Georgia, and if the
not laboring under disability. Infants have seven years to assert their
defendant is a non-resident, suit must be brought and tried in the county
rights, after becoming twenty-one years of age.
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
Married Women. The wife may contract and sue and be sued in
advertisements are published, twice a month for two months. The jury
her own name in respect to her separate estate as a femme sole, except that
rendering a final verdict will fix the status of the parties under the direc
she can not bind her separate estate by suretyship for her husband, and
tion of the court. Total divorces may be granted on the following
any promise to pay her husband’s debt is void. She cannot sell to her
grounds: 1, For marriage by persons within prohibited degrees of con
husband or trustee for any purpose, except by order of the superior court.
sanguinity or affinity. 2. For mental incapacity at time of marriage. 3.
A wife or her heirs may sue and recover from any person money or prop
Impotency at time of marriage. 4. Force, menaces, duress, and fraud in
erty used by her husband to pay his debt where* the creditor takes with
obtaining the marriage. 5. Pregnancy of the wife at time of marriage,
notice. All the property of the wife at the time of marriage, and all she
nnknown to the husband. 6. Adultery in either party after mar
may acquire by gift, inheritance, or purchase, shall vest in and belong to
riage. 7. Willful and continued desertion for three years by either party.
her, and shall not be liable for the debt, default, or contract of her hus
8. Conviction of either party for an offense involving moral turpitude,
band. The wife with her children, if any, is entitled to twelve months'
under which he or she is sentenced to a term in the penitentiary for a
support out of the estate of her deceased husband. The husband is bound
term of two years or longer. 9. Cruel treatment or habitual intoxication
to support and maintain the wife, and his consent is presumed to her
by either party. In cases under this ninth division a jury may grant a
agency in the purchase of necessaries. The wife’s separate property is
total or partial divorce, in their discretion. A residence of twelve months
not liable for debts contracted by her as agent of her husband in the ordi
in this State is necessary to entitle a party to maintain a suit for divorce.
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
Dower. In this State the wife is entitled to an estate for life in oneestate, for that purpose. A married woman can dispose of her property
third of all lands of which the husband dies seized or possessed at the
by will.
time of his death, or to which the husband obtained title in right of his
wife. There is no necessity for renunciation ol dower in this State,
Mortgages. Mortgages are only security for debts. They may
and a married woman, on that question, need not Join with her husband
embrace property in the mortgagor’s possession, or to which he has
in conveying land, except in cases where, before 1866, he obtained real
a right of possession. They may cover a stock irx»bulk, but changing
estate belonging to his wife, by virtue of the marital relation.
in specifics, and after acquiring property. No particular form is
necessary, but itimust be clear that the instrument indicates a lien,
Executions. Must follow the judgment or decree from which they
describes the property and specifies the debt it secures. Mortgages
issue. They are good for seven years and may be renewed for a like
on land are not good against dower, and a wife cannot waive her
period by entry nulla bona.
dower
as against this lien. Mortgages must be executed and attested
Exemptions and.'Homesteads. L’nder the constitution and laws
in the same manner as deeds, except that in mortgages on personal
of Georgia, each head of a family or guardian, or trustee of a family
property,
only the official witness is necessary. Mortgages with power
of minor children, or of an aged or infirm person, or a person having
of sale are valid in Georgia. Homestead and exemption may be
care and support of dependant females of any age, who is not the
waived
in
the mortgage. All mortgages on personal property must
head of a family, shall have exemption of realty, or personalty, or
be recorded in the county where the mortgagor resides and the prop
both, to the aggregate of sixteen hundred dollars. The debtor shall
erty
is
located.
Mortgages on land must be recorded in the county
have power to waive, or renounce, in writing, his right to the benefit
where the land is situated.
of exemption above stated, except as to wearing apparel and not ex
Notaries. Commercial notaries are appointed for four years by the
ceeding $300 worth of household and kitchen furniture, and provisions.
euperior courts. They must have seals and are authorized to attest
The homestead or exemption may be sold by the debtor and his
dseds and mortgages, and make protest of commercial paper.
wife, if any, with the sanction of the judge of the superior court of
BANKING AND COMMERCIAL LAWS—IDAHO.
Notes and Bills of Exchange. (See Bills of Lading and Promis
sory Notes.) Promissory notes are negotiable by endorsement ol 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 exchange and promissory notes. Endorsements may be limited
by express restrictions. Acceptances of bills must be in writing. Trans
ferers of negotiable instruments warrant that they are the lawful holders,
have the right to sell, and that the instrument is genuine. Bona fide
purchasers of negotiable paper taking the same for value before due, and
without notice, are protected against any defense, except: 1. Non est
factum. 2. Gambling, or immoral or illegal consideration. 3. Fraud
in its procurement by the holder. Maturity gives notice of dishonor.
No days of grace are allowed on sight papers, all others are entitled
thereto.
Probate Law. (See Administration of Estates. Deeds and Mortgages.)
Protests. (See Bills of Lading and Promissory Notes.)
Records. (See Deeds and Mortgages.)
Redemption. There is no redemption in this State under judicial
sales except in case of sale of property under tax execution wheie parties
may redeem in twelve months.
Replevy. 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.
Revision. (See Courts.)
Sales. Sales may be made to pay debts, but any sale of stocks of
goods in bulk is deemed fraudulent unless the seller delivers to the
buyer a list of all creditors and the amount due each. It shall then be
the duty of the buyer to notify the creditors of his purchase. This notice
must be mailed five days before completion of the purchase.
Taxes. 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. Une
year in which to redeem is allowed.
Wills. All persons of full age and sound and disposing memory,
including married women, may make wills, and dispose of their estates.
Wills must be executed in the presence of three witnesses, all of whom
shall be present, must be called by the testator as witnesses, and must
sign, and shall certify that they signed, in the presence of the testator, and
in the presence of each other. Wills must be in writing, except nuncupa
tive wills. Wills of citizens of other States, where executed according to
the laws of the State, and probated in solemn form in such State, which
dispose of real or personal property in Georgia, may be admitted to pro
bate in this State, when an authenticated copy of the will is presented,
accompanied by a certificate of the governor of such State, under the seal
of the State, that the official of the court where such probate was made
had original jurisdiction of the subject-matter. Wills are probated in the
court of ordinary in the county where the testator resides at the date of
his death. All wills executed out of this State by citizens of this State
to dispose ot property in Georgia must be executed according to our law.
A foreign will, executed according to the law of Georgia, will consti
tute a muniment of title to real property without being probated in this
State, when recorded on the record of deeds in the county w here the
land lies, together with an exemplification of record admitting it to pro
bate in another State, certified according to the Act of Congress.
SYNOPSIS OF THE LAWS OF IDAHO
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Richards & Hag a, Attorneys at Law,
Boise City. (See Card in Attorneys List.)
Acknowledgments. All conveyances and ^opLowted^d"!?
required to be acknowledged in this State must be
& county
within the State, before a judge or clerk of a
_itho.,T’tjle state^
recorder, a notary public, or a justice of the peace.
f . ‘ such
but within the United States, they must
acknowledged before any such
officer, or a commissioner of deeds forthiBState.orbeforeanyoffiter
authorized by the laws of this State or Territory to
acknowledged
edgment. If without the United States, they m
resident and
before a minister or charge d’aflairs of the United
•
})(,fore a
accredited in the country where the acknowled m dulv annoi’nted comconsnl or
or vice
vice-consul
1ud°,e of a court
ol record,ofa acknowledgment,
duly appointed comif
consul
consul, aa juu-vu
certificate
missioner, or a notary public, lhe cercincale
t other than
made before a justice of the peace, when n?j*l
certificate under the
that in which he resides, must be accompaniedJiv.s. c^fiMtejUnder the
hand and seal of the recorder of the county in which the DsUce ree dts
.etttog forth .h.t .notu»«ice «t the w of « ng .u=h
ment, was authorized to take tne same, »
Ri(rn»tiireis^enacquainted with his handwriting, and bel’^®8 m«v be made though it
nine. Proof of the execution of an instrument m aj te made tnougnit
has not been acknowledged. Form of
ment the same as that of a single person. (See
y
Actions. There is but one form of
»ctmn In this ^Stete. An
action is commenced within the meaning of th
. d j the name of
is filed with the clerk. Every action must be prosecuted in tne name or
the real party in interest.
.
Affidavits are used only to verify pleadings te prove> service of sum
mons, notice, or other paper, to obtain pro is
Allens
CexceDt such as have declared their intention to become citizens
Aliens (except such as >
,
j minjng), whose members are not
SxduSdUzen or*1ersons° who have decked their intention to beexciusiveiy citizens or pein
other than mineral lands, or such
come such, shall not acqn
. • ’ f mines or the products thereof.
mining lands acquired by inheritance w cu
sold within five years or they escheat to the SUte.
. .h»™»inn
Persons capable of contracting may submit to arbitraIta wSmtrover.y ‘S
be the^abject of « d„l .c.toa between
them, except a question of title to real prop y.
Arrests The defendant may be arrested in a case for the recovery of
nmneFor danSs on a cause of action arising upon a contract, express or
1317
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 lias or
is about to remove or dispose of his property with intent to defraud his
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 of defendant. Plaintiff must furnish
bond, with two sufficient sureties.
Attachments. 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 he arrested, when about to depart from the State with
intent to defraud, or when the debt or obligation was fraudulently con
tracted.
Banks and Banking. Idaho has a full and complete law upon the
formation and regulation of hanks and the formation of hanking corpo
rations. No banking corporation can have less than five directors. All
hanks, other than national banks, are under the supervision of the hank
commissioner. The hanker 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.
Community Property. 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
he 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 man
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 may be formed by three (3) or
more persons, at least one of whom must he a bona fide resident of this
State. Such corporation is formed by executing articles of incorporation,
containing: 1. The name of the o irporation. 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). 6. The num
ber of its directors or trustees, not exceeding fifteen/wh > must he stock
holders of the corporation. 6. The amonnt of the capital stock and the
number of shares into which it is divided. 7. The amount actually sub
scribed, and by whom. The articles may provide for the election of onethird of its directors annually. Railroad, wagon road, telegraph and
telephone corporations must also state in their articles: 1. The kind of
road, telegraph or telephone line intended to he 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 shall be held within
or without the State. 5. Whether stockholders shall be individually
liable for debts of corporation. Railroad corporations must have sub
scribed, before filing articles, $1,000 per mile; wagon road corporations,
$300 per mile; telegraph corporations, $100 per mile, and the articles
must be verified by affidavit of president, secretary, or treasurer
named in articles, that such stock has been subscribed. All articles
of incorporation must be filed in the office of the county recorder, in
which the principal place of business is located, and a copy thereof cer
tified by the recorder, filed with the Secretary of State. All corporations
must pay between July 15th and August 15th of each year an annual
license 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.
Corporations, Foreign. Foreign corporations desiring to do busi
ness in this State, may have all the rights and privileges of like
domestic corporations, by filing with the Secretary of State, and in the
office of the clerk of the district court in the county where the principal
place of business of such corporation is to be conducted, a copy of their
articles of incorporation, and the designation of some person, residing in
the county in which such principal place of business is to be located upon
whom process issued by authority of or under any law of this State may
he served.
Courts. Terms 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 j urisdiction in all civil cases. Probate Courts are
held in 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.
Days of Grace abolished by the statute.
Depositions maybe 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.
Divorce. Marriage may be annulled for any of the following causes
existing at timeof 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
after attaining the age of consent such party for any time freely lives
aad co-habits with the other as husband and wife. 2. That the former
husband or wife of either party was living, and the marriage witli such
former husband or wife was then in force. 3. That either party was of
msound mind, unless such party, after coming to reason, freely co-habits
1318
BANKING AND COMMERCIAL LAWS—ILLINOIS.
with the other as husband or wife. 4. That the consent of either party
was obtained by fraud, unless such party afterward, with full knowledge
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 wdth the other as husband or
wife. 6. That either party was, at the time of the marriage, physically in
capable of entering into the marriage state, and such incapacity continues
and appears to be incurable. A judgment of nullity of marriage is con
clusive only as against the parties to the action, and those claiming under
them. Divorces may be granted for any of the following causes: 1.
Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. Willful neg
lect. 5. Habitual intemperance. 6. Conviction of felony. 7. Perma
nent insanity. Persons applying for divorce must have been a resident of
this State for six months immediately preceding the commencement of
such action, and cannot remarry within six months after granting of
divorce.
Dower does not exist.
Employers and Employes. All persons employing mechanics or
laborers in working mines, erecting or repairing buildings, constructing
canals, railroads, etc., must make, record, and publish a statement, under
oath, setting forth the following: The name of the owner of the prem
ises where work is being done or upon which it is intended to begin
work; the name of the person or company engaged in or who contem
plates engaging in work upon such premises; the conditions under which
such person or corporation is prosecuting the work as agent, owner, etc.;
the principal office of the owner and the agent in this State; the time and
place where payment of laborers and mechanics will be made. A copy
of this statement must be posted at the place where work is prosecuted.
Executions issue at any time within five years after judgment. The
only stay is by appeal, with secured bond. ODe year allowed for redemp
tion.
Exemptions. Homestead, not exceeding §5,000, if duly acknowledged
and recorded; office furniture and library, §200; necessary household and
kitchen furniture not exceeding in value §300, and provisions for family
for six months; certain rarm animals, etc., with food for six months;
and water right for 160 inches, when actually used in irrigation; also crops
growing or grown on fifty acres of land, leased, owned or possessed by
the person cultivating the same; tools or implements of mechanic neces
sary for his trade of the value of §500; all instruments of surgeons,
etc.; also all professional libraries; miner’s dwelling of value of §500, and
his pipes, cars, etc., of the value of §200; pack animals and equipments,
not exceeding §250; team, wagon, etc., of drayman; the personal earnings
of a debtor within thirty days preceding levy, where earnings are neces
sary for use of family, residing in this State; the shares held by parties of
the Building & Loan Association to the value of §1,000; provided, such
person has no homestead; all benefits arising out of life insurance, rep
resented by an annual premium of §250; all property of fire companies.
All the above property may be sold under foreclosure of mortgage, which
includes same.
Garnishment. 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, p. 160.)
Husband and Wife. All the property of the wife owned by her before
marriage, and that acquired afterwards by gift, bequest, or descent, or that
which she shall acquire with the proceeds of her separate property, shall
remain her sole and separate property, to the same extent and with the same
effect as the property of a husband similarly acquired. The wife has the
management, control, and absolute power of disposition of her separate
property, to the same extent and with like effect as a married man may have
in relation to his real and personal property. The separate property of the
wife is not liable for the debts of her husband, but is liable for her own
debts contracted before or after marriage. There is no estate by courtesy
or in dower. Marriage settlements are provided for, and when properly exe
cuted and recorded may vary the statute governing the relations of husband
and wife concerning property rights. Minors may execute valid marriage
settlements.
*
Interest. Where there is no express contract in writing fixing a
definite rate of interest, the rate is 7 per cent per annum. Parties may
agree in writing for interest at the rate of 12 per cent per annum. Judg
ments bear interest at the rate of 7 per cent per annum.
Judgments are liens on all real estate of debtor within the county,
from time of docketing, and may be extended to other counties by filing
transcript in recorder’s office. Lien continues two years. Justice's court
judgments become liens when certified and recorded. May be revived by
issuing execution within limitation.
Eiens, Mechanics’. Every person performing labor upon or furnish
ing materials used in the construction or repair of any mining claim,
building, or other improvement, has a lien thereon. Farm laborers have
lien upon the crop and products thereof, upon which they bestow
labor. All liens must be set forth by a statement in writing, show
ing the amount due, the facts connected with the matter, that there
are no credits due on the claim, or offsets against the same; which state
ment must be verified by the claimant, and recorded in the office of the
county recorder, if on claim of original contractor, within ninety days, if
on claim of other persons, within sixty days from the time of the comple
tion of the structure the completion of the labor, or the furnishing of the
materials. Lien must be enforced by suit within six months, unless
credit is given; expires at all events in two years.
Eimitation 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 Women. All property, real or personal, acquired before i
marriage and acquired after marriage, by gift, bequest, devise, or descent,
wife’s separate property; all other property acquired after marriage,
common property; wife must record inventory of separate property. No
estate as tenant by courtesy allowed the husband, nor dower to the wife.
Half the common property goes to the surviving husband or wife; if no
descendants, half of common property subject to will of deceased, or, in
case no will, goes to heirs of deceased.
Mines and Mining. (Principal regulations under United States
Statutes.) Quartz locations may be 1,500 feet long and 800 feet on
each side of the middle of lode. Monuments mu6t be established at
all exterior angles of claim. Claim should be tied to some natural or per
manent monument. Copy of location notice must be posted at discovery
within three days after discovery. Notice of location must be recorded
within ninety days after location; within sixty days ten-foot shaft must
be sunk or its equivalent. Location notice must contain name of locator,
name of claim, date of discovery, dimensions, distance from some perma
nent, natural, or artificial object; name of mining district, county,and State.
Placer locations made in same manner as quartz • locations, except that
within fifteen days after making location, locator must excavate not less
than 100 cubic feet for purpose of prospecting claim, and must record
notice of location within thirty days after making location.
Mortgages. A real estat e mortgage must be acknowledged and certi
fied, and recorded in like manner as conveyances and deeds of real prop
erty, and is foreclosed by action in the district court. Chattel Mortgages
must be acknowledged as real estate mortgages, and sworn to by the
mortgagor that the same is made in good faith without any design to
hinder, delay, or defraud creditors. May be filed or recorded. Survives
as long as the debt. Mortgages are discharged by a satisfaction duly exe
cuted and recorded, or by entry on margin of this record, witnessed by
recorder.
Negotiable Instruments. Negotiable instruments are governed by
the rules of the Uniform Negotiable Instrument Law, as recommended
by the American Bar Association. (See Laws 1903, p. 380.)
Notaries, when requested, to demand acceptance and payment of
foreign, domestic, and inland bills of exchange or promissory notes and
protest the same for non-acceptance and non-payment; exercise such other
powers and duties as by the law of nations and commercial usage, or by the
laws of any other Territory, State, government, or country may be performed
by notaries. Attach acknowledgments or proof of powers of attorney;
mortgages, deeds, grants, transfers, and other instruments of writing exe
cuted by any person. Give certificate of such proof or acknowdedgment,
to take depositions, affidavits, and administer oaths and affirmations in all
matters incident to duties of the office. To keep a record of all official
acts; when requested, and upon payment of his fees therefor, to make and
give a certified copy of any record in his office; to provide and keep an
official seal, on which must be engraved his name, the words “Notary
Public,” and the name of the county for which he is commissioned. To
authenticate with his official seal all official acts.
Power of Attorney. Powers of attorney for grants of real estate
and to execute a mortgage must be in writing, subscribed, acknowledged
or proved, certified ana recorded as other instruments affecting real prop
erty. Powers of attorney which have been recorded must be revoked by
revocation in writing, acknowledged, proved, certified, and recorded the
same as original power.
Probate Eaw. Probate courts have jurisdiction to open and receive
proof of wills and admit them to proof; to grant letters testamentary and
guardianship and revoke same; appoint appraisers of estates, compel exec
utors, etc., to render accounts; order saleof property of estates and minors;
order payment of debts due from estates, order and regulate distribution
of property or estates; compel attendance of witnesses and production of all
instruments pertaining to estates and property of minors, and make such
orders as may be necessary to exercise all powers conferred. Proceedings
of this court are construed the same as courts of general jurisdiction and
like force given to its records.
Protest. (See Notaries.)
Records. All deeds, mortgages, real and chattel, and instruments af
fecting the title to lands must be recorded. Inventory ot the separate per
sonal estate of a married woman when recorded, becomes primaftLcie evi
dence that the property therein enumerated is her separate property.
Judgment empowering a married woman to act as a sole trader must be
recorded in the county recorder’s office. In case of levy of attachment
upon real estate, a copy of the writ, with a copy of the notice of levy at
tached thereto, must be filed in the office of the county recorder
Redemption. Property may be redeemed within one year after
sale, on paying purchaser amount paid on sale and ten percent, addi
tional. Property may be redeemed by successive redemptioners within
sixty days from last redemption, and within one year from sale, by pay
ing an additional four per cent. In cases of tax' sales, the owner may
redeem in three years.
Replevin. Action of, must be brought within three years from time
it accrues. Plaintiff may sue for the possession without claiming im
mediate possession, or he may claim immediate possession at time of
commencing suit or afterward. Affidavit showing that plaintiff is the
owner, the detention, the unlawfulness of the detention, etc., and bond
with sureties required to obtain immediate possession. Defendant may
execute undertaking, with approved sureties, for the retention of the prop
erty, and that it will be forthcoming, subject to the order of the court in
which the action is pending, and thereupon retain the possession of the
property involved.
Seals. The distinctions between sealed and unsealed instruments are
abolished.
Taxes. The locus of property for taxation relates to the second Monday
of January, if within the State, and if not to the day of assessment, and
is a lien from and after that date. The period of’ redemption is three
years.
Trust Companies. (See Guaranty Companies.)
Wills. Every person over the age of eighteen years, and of sound
mind, may make a will. Every will, other than a nuncupative will, must
be in w’riting, and every will other than an olographic and a nuncupative
will, must be executed by the testator subscribing thereto or some person
by his direction, which must be done in the presence of two attesting wit
nesses, each ol whom must sign his name and state that the testator
requested him to witness the testator’s signature, and the testator must
also declare in the presence of the witnesses that such is his last will and
testament.
SYNOPSIS OF THE LAWS OF ILLINOIS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. Crattt Bros. & Jarvis.
Attorneys at Law, Chicago. (See Card in Attorneys' List.)
Acknowledgments or proof of real estate instruments may be
before one of the following courts or officers: 1. Within this State,
master, notary, justice, United States commissioner, county clerk ; or of
court of record, judge, justice, clerk, or deputy of such court. The
official should certify that --------------- personally known to me to be
the same person whose name-------- ;----------- subscribed to the foregoing
Instrument, appeared before me this day in person, and acknowledged
that he signed, sealed, and delivered the said Instrument as----------------free and voluntary act, for the uses and purposes therein set forth,
including the release and waiver of the right of homestead.” 2. Out
side this State, a justice, notary, master, United States commissioner,
commissioner of deeds, mayor, county clerk; or judge, justice, clerk,
or deputy of any United States court; or any judge, justice, clerk,
BANKING AND COMMERCIAL LAWS—ILLINOIS.
1319
deputy, prothonotary, surrgoate, or registrar of supreme, circuit, | 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
superior, district, county, common pleas, probate, orphans, or surrogate’s
fee simple and to warrant that the grantor was lawfully seized with full
court of any State, territory, or dependency. In any dependency may be
right
to convey; that the land was free from incumbrance, and that
also before a commissioned military officer; justice or master must attach
grantee have quiet and peaceable possession, and that grantor shall defend
certificate of court clerk.
title.
The words “conveys and quit claims” are sufficient to convey all
Actions. The common law forms of action and pleadings are. used,
the grantor’s interest. The words “ mortgage and warrant” are sufficient
but are in some respects modified by statute. Non-resident plaintiffs
to
mortgage the fee with full covenants of general warranty. The home
must give bonds for costs.
stead right is not waived except apt words be used. A married woman
Administration of Estates is had in the county courts, except in
above eighteen joining with husband in any deed, mortgage, power of
some larger counties where probate courts are established. Six weeks
attorney or other writing, shall be bound in respect to her title the same
notice must be given for proof of claims. Claims not presented within
as if she were single. No covenant or warranty is broken by the existence
one year from date of letters shall be barred unless creditors find other
of a highway upon the land conveyed. (See Acknowledgments.}
estate not inventoried or accounted for within that time. Infants, persons
Corporations are formed under the general statute for lawful pur
of unsound mind, persons without the United States in the employ of
poses except banking, insurance, real estate, brokerage, railroads, and
the United States or of this state have one year to exhibit claim after
money-lending; separate acts provide for these. At least one-half of
disability removed.
. , . . .
capital stock must be reported paid in, ana also what disposition has
Administration of intestate estate is granted, 1st, to surviving hus
been made of that not paid in, before charter issues. Stockholders vote
band or wife, 2d, to child, 3d, to father, 4th, to mother, 5th. to brothers,
in person or by proxy, each share one vote; shares not less than $10 or
6t,h, to sisters, 7th, to grandchildren, 8th, to next of kin, 9th. to public
more than $100; cumulative voting allowed; final certificate or charter
administrator or any creditor. A relative entitled to administer may
to be recorded in company’s own county; may hold only necessary real
nominate a competent person to be appointed in his or her stead.
estate; directors not less than three nor more than 11; make by-laws and
Preference and right to nominate must be exercised within seventy-five
control business; no stock liability except for unpaid par value; directors
days, otherwise public administrator shall act. When several are equally
and officers who assent to indebtedness exceeding amount of capital
entitled to administer, the court may select preferring relatives of whole
stock are liable for the excess; stockholder may examine books; certif
to those of half blood. Non-resident executors and administrators
icates assignable in blank and pass by delivery; stock is personalty and
may sue in this State.
may be attached or taken in execution unless certificate has been sold or
Affidavits may be taken or oaths administered by any judge, master
pledged. Every corporation except building and loan, railroad, bank
in chancery, clerk of court, justice, police magistrate, or notary public.
ing,
and insurance shall in each February report to secretary of state
Any oath authorized or required to be made out of the State, may be
location of office, names and residences of officers, when terms expire
administered by any officer authorized by the law of the State where it
and
Dature
of active business. Failure to do so is prima facie evidence
is administered, and if such officer have a seal, bis certificate under his
of being out of business and secretary shall record cancellation of
official seal that lie is authorized by law to administer said oatli, shall be
charter,
and
shall file annually with recorder of each county, list and
received as prima facie evidence of his authority to administer oaths.
particulars of such reports, and all cancellations; may be reinstated
Aliens. By statute of July 1, 1897, all aliens may acquire and hold,
witbin one year by paying $20, and making proper reports to date;
and convey, or devise, or otherwise alienate real property, snoject to
charters already forfeited of corporations not for pecuniary profit, in
certain provisions and restrictions.
cluding religious corporations, may be restored if proper application is
made before March 1,1906.
Arbitration. The parties to any suit pending In any court of record
may agree to arbitrate, whereupon an order to that effect will he entered.
A Foreign Corporation other than insurance, building and loan, and
Arrest. One about to commence suit to recover a clairn fraudu
surety company shall make sworn application to secretary of state,
lently incurred or where a debtor has fraudulently concealed or dis
naming its proposed business, amount of capital stock and whether it
posed of property may have capias issued for his arrest.
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
Assignments. Voluntary assignments for the benefit of creditors
in this State, the amount paid in upon its capital stock and if any stock
without references are administered in the county courts. No assign
is not paid in, what disposition is to be made thereof; names and resi
ment of wages shall be valid unless acknowledged before a, justice or
dences of president, secretary and treasurer, location of office, name of
municipal court clerk and entered on docket and within three days
attorney in fact who can be served with summons, and if required by
a copy be served upon the party owing the wages; and if by a married
secretary
of state, names and residences of all stockholders. Shall
person assignment must be signed and acknowledged by both husband
file copy of charter or certificate. It has no other or greater powers
and wife. Assignment void if debt tainted with usury. Assignment
than
domestic
corporations.
of wages to be earned in whole or in part more than six months m the
Courts. Terms and Jurisdiction. Circuit courts have original juris
future is void.
diction in all cases in law and equity, and hold two or more terms in
Attachment. The writ may issue out oi courts of record on claims
each year, in each county. County courts have probate jurisdiction
exceeding $20, when the debtor is non-resident; conceals himself or
(except in counties where probate courts are established), and have also
stands in defiance, so that process can not be served on him; or has
a limited civil ($1,000) and criminal jurisdiction. Provision is made for
departed from this State with the intention of removing his effects
city courts of special civil and criminal jurisdiction. Justices of the
therefrom, or if about to do so; or has, within two years, lraudulently
peace have jurisdiction limited to $200.
Appellate courts and a
conveyed, assigned, concealed, or disposed of his property, or a. part
supreme court exercise appellate jurisdiction. Cook county has a
thereof, so as to hinder or delay creditors; or is about fraudulently to
special
superior
court
of
jurisdiction
concurrent
with that of circuit
conceal, assign, or otherwise dispose of his property or effects, so as to
courts, and has also a special criminal court, each with monthly terms.
hinder or delay creditors; or the debt was lraudulently contracted by
The
Municipal
Court
of
Chicago
is
a
court
of
record,
with a chief
statements in writing Before writ can issue, plaintiff, his agent, or
justice and twenty-seven associate judges. This Municipal Courts take
attorney, must makeSaffidavit to one or more of these facts, and give
the
place
of
the
Justice
of
the
Peacd
Courts
in
the
city
of
Chicago, hut
bond, in double the amount of claim. (A«e Garnishment.)
not the county of Cook outside the city of Chicago.
Banks. There is nothing special in the statutes about National banks
Bays of Grace are abolished. (See Negotiable Instruments.)
except that shares of stock in such as may be located in this State are
Depositions. The testimony of any witness residing within this
lilted and taxed as shares in State banks and as other personal nroperty,
even though the owner be non-resident. Each hank is required to keep
State more than 100 miles from the court, or not residing in this State,
may
he taken by the party desiring to use the same, under a commis
a list of names and residences of its stockholders,_
hankins excent
sion, upon written interrogatories. The deposition of a non-resident
Banking associations may be formed to do general banking except
witness may be taken on oral interrogatories, upon giving ten days’
issuing bills as money; may make loans on l^onal and re»l_estate
notice, and one day for every 100 miles traveled from the court to place of
security and accept and execute trusts. tap
1
~S
•
taking same. When the notice has been served for taking the deposition
Cities of 5,000 or less, $25,000; up to 10,000 $50,0«), up to WW, . 1 ,
of a non-resident witness on written interrogatories, the adverse party
000, and 50,000 or more, $200,000. The ?tate auditor ;8ue? ce™tte
may, upon giving three days’ notice, have a deposition issued to take the
of organization, which must be recorded in proper county. Any impai
deposition upon oral interrogatories. Commission may issue to any
ment of capital must be made good on notic
Tb t t j uabijj.
judge, master in chancery, notary or justice, or to any competent or
June 4,1897, the statute was amended as follows.
1 he tota^namn
disinterested person as commissioner. Where deposition is taken on
ties to any association ofany person, o of any company or jm,^
written interrogatories, neither party, his attorney, nor other person
money borrowed, including m the liamiitieB
time exceed oneinterested, is allowed to he present, nor to dictate or write any deposition.
liabilities of the several members thereof shall at no.tunr exceed.one
When a party, having given notice to take depositions upon oral inter
tenth part of the amount of capital of such aviation acw^iy pa
rogatories,
shall fail to take the same, and the opposite party shall attend
Blit tlwdiacountof bilk-'SSol LmmlSl'’“SSi P«P«^
either in person or by attorney, he shall be entitled to $2 per day for each
existing values, and the discount, oi yuui
Knmp shall not be conday
of
such
attendance, and to 6 cents for every mile necessarily traveled
actnally owned by the P®*8™ nego^VcVloln made’in violation of the
in going and returning.
sidered as money borrowed. Every
*
appnrriinp to its terms and
provisions hereof, shall he due and payab
in violation to the’proDescent. Real and personal property of intestates, after payment of
the remedy for the recovery of any money loaned m vmlatioa “
Pro
debts, shall descend as follows: 1. To children and their descendants;
visions hereof, or for the enforcement of
agreement,
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
otherwise, made in connection with
agu’ch Tlolation, but such
viving husband and no child, or descendants of child, then one-half of the
impaired, affected,
P^Mted by reas
®
director of any
realty and all the personalty to the widow or surviving husband, and the
remedy shall exist notwithstandi g
norticinate in or assent to such
such association who shall violate o
a”Vte, orTcrvants of
other half as in other cases where there is no child or descendant of such;
violation, or who shall permit any of t
... be beld Hable in his
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
the association to violate the Pr°T,81°n811 damace8 which the association,
of all personalty; 5. If there is no child or descendant of such and no
parent, brother, or sister, or descendant of such, and no widow or surviv
s ss,"'” swssass a.Wi
ing husband, estate shall descend to next of kin, by the civil law; no
representations among codaterals 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
Collaterals. There1.
secret
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
Conditional Sales, Con pm the parties, but where personal
agreements are good as between
yendee conditions or eecret
or the greater portion thereof is situated. An illegitimate child is heir to
property is sold and P°s“s“°“*di®“r8 and purchasers in good faith,
its mother and any maternal ancestor and any person from whom its
liens are held fraudulent a
chattel mortgage (see Chattel
mother could inherit. An illegitimate child becomes legitimate if the
parents inter-marry.
The safe course is to Pre ® ,
dg for sale if in good faith are not
Mortgages). Consignment
g° is protected. If a commission merDivorce* may be granted for impotency; former wife or husband
within the rule and the, co g
con*rnission shall convert to his own
living; adultery; desertion or habitual drunkenness two years; attempt on
chant or other person selhs;
demand where the property has
the
life of the other by poison or other means showing malice; extreme and
isonment or both and for
use or fail to pav, over Proveds on ae j
repeated cruelty, conviction of felony, or other infamous crime. Residence
been so consigned he is liaDie vu w
in State one whole year next before filing petition required, unless the
double value of the property.
offense was committed in this State or whilst one or both resided herein.
Conveyance.. A person mywnyeytW^Opl^^^thougb^ not
Suit must be brought in county where complainant resides and process
may be directed to any county in the State.
iS^int“enanacn^ exceptSo executors and trustees, is created by deed
1320
BANKING AND COMMERCIAL LAWS—ILLINOIS.
Dower. The estate of curtesy is abolished and the surviving husband
or wife is endowed of a third part of lands owned by deceased at any time
during marriage. Equitable estates and lands contracted for in lifetime,
the 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 lieu of dower, the dower will be barred in other
lands unless the survivor shall renounce the benefit of such devise within
one year after letters in probate are issued. No judgment or decree, nor
laches, default, covin, forfeiture or crime of either, nor conveyance without
the consent of the other shall bar dower.
Execution may issue immediately after rendition of judgment,
and to any county. Executions are liens on personal property from date
of delivery of writ to officer. 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.
Exemptions. 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 forthe excess of wages above the exemption. No property
exemption is allowed when the debt is forthe wages of laborer or servant.
Wages are preferred in case debtor is closed by legal proceedings.
Wages earned outside of State exempt, where cause of action arose out
of State, unless debtor is personally served with process in the State.
Fraud. It is criminal fraud to attempt to obtain insurance money
wrongfully; to issue, sell, transfer or pledge any false, fraudulent or simu
lated stock certificate or evidence of shares of any corporation, or for any
officer to sign any such certificate; to sell any land after having once sold
or agreed in writing to sell the same to another; to convey any real or per
sonal property with intent to defraud and deceive others or”to hinder 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.
Frauds and Perjuries. No executor or administrator is liable
upon any promise to pay any debt or damage out of his own estate, and
no person is liable upon any agreement to answer for the debt, default, or
miscarriage of another, or any agreement Hpon consideration of marriage
or any agreement that is not to be performed in one year, unlesa the
agreement is in writing signed by him or by some one authorized. No
contract for the sale of lands or any interest therein for a longer term than
one year is binding, unless in writing signed by the party or some one
authorized by him, in writing, to sign for him. Any gift, conveyance, or
transfer of, o"r charge upon any real or personal estate made with intent to
delay or defraud creditors or other persons, and any evidence of debt
given, suit commenced, decree or judgment entered, with like intent, shall
be void as against such creditors, purchasers, and other persons. All
declarations of trust in lands shall be in writing, except resulting trusts or
trusts created by implication or operation of law.
Garnishment. Process may issue upon judgment, and in attach
ment, to hold whatever a third party may owe, or have belonging to
debtor. Garnishee can not be held as the maker or endorser of negotiable
paper unless same is past due and in debtor’s hands at time of service or
judgment. Executors and administrators are subject to garnishment,
but no judgment can be taken against them until after order of distribu
tion in probate. One having a claim against a resident debtor shall not
transfer or send it beyond this State to collect by garnishment out of
debtor’s wages to deprive him of his exemption, when the garnishee can
be served in this State. Wages of head of family residing with same
are exempt to amount of $15. Non-resident debtors are protected from
like proceedings in our courts.
A federal court judgment is a lien on real estate in the county where
rendered and becomes a lien in any other county by recording therein
a proper transcript of the judgment. A municipal court judgment
becomes a lien on real estate throughout Cook County by filing in
recorder’s office a proper transcript of the judgment.
Liens. Mechanics, material men, architects, or superintendents have
a lien for work and materials furnished in building, altering, repairing, or
ornamenting any building. A sub-contractor has lien. Hotels and board
ing houses have a lien upon “baggage and other valuables” of guests
or boarders for “accommodations, board, and lodgings, and such extras
as are furnished at their request.” Stable keepers and persons have a
lien upon horses, carriages, and harness for proper charges for keeping.
Agisters and persons keeping or pasturing domestic animals have a lien
for proper charges.
Limitation of Saits. Action for slander or libel, one year.
Damages for injury to person, false imprisonment, malicious prosecu
tion, statutory penalty, abduction, seduction, criminal conversation, two
years. Unwritten contracts, express or implied, awards of arbitration,
injury to real or personal property to recover personal property, or
damages for detention, or conversion thereof, and all civil actions not
otherwise provided for, including actions on foreign judgments, five
years. Bonds, notes, bills, written leases, and contracts, or other
evidences of indebtedness in writing, ten years. If any payment or new
promise shall be in writiDg on any bond, bill, note, lease or contract
within or after said period ten years, then limitation extended ten
years louger. If cause of action arises out of this State, and by the laws
of that State action can not be maintained, no action can he maintained
here. Judgment of court of record in this State, and actions for the
recovery of lands are barred after twenty years, and the latter in
seven years in some cases. If one fraudulently conceals a cause of action
against himself, he maybe sued within five years after discovery of the
fraud. If action is stayed by injunction, such time shall be deducted
from the running of the statute.
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.
Married Women. A married woman may sue, be sued, possess
her own earnings, contract, incur liabilities, purchase, sell and hold
personalty, and own real estate to same extent, as if unmarried.
Husband not liable for her debts or torts, unless where he would be
jointly liable if not married. She can not enter partnership without
husband’s consent unless he has abandoned her, or be incapable of
consenting. No transfer of chattels from one to other is valid as
against third parties, unless in writing, acknowledged and recorded.
Both are liable for family expenses.
Mortgages on real estate are executed same as deeds. Husband
and wife must join to bar dower or homestead except to secure purchase
money. Mortgages and trust deeds with power of sale must be foreclosed
in chancery. No sale allowed under such power. Chattel Mortgages
shall be acknowledged before a justice or the county judge of county
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
or until debt matures if within three years, but may be extended if
parties shall file in recorder’s office and with justice, or his successor,
on whose docket the mortgage was entered, an affidavit stating mort
gagee’s interest in the property and amount unpaid of the debt and
the duration of the extension, not over one year. Such affidavit
must be filed within thirty days next preceding the expiration of such
three years or if debt matures within such three years then within
thirty days next preceding the maturity of the debt.
Negotiable Instruments. 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 to bearer; may be in 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 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; 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 consideration 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 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 Sat
urday. Fraud and circumvention in procuring execution of instru
ment is a defense against any holder.
Husband and Wife. Il sued together she may defend for her own
right, and if either neglect to defend, tne other may defend for both. If he
desert his family, she may prosecute or defend in his name, and he has the
same right if she desert. ’Neither is liable for debts of the other before or
after marriage, nor shall the earnings or property of either, nor the income
thereof, be so liable. Neither shall be entitled to recover compensation
for labor or services rendered for the other. If either unlawfully retains
control of the other’s property, before or after marriage, the owner
may maintain action therefor the same as if unmarried. If either abandons
the other and leaves the State for one year without providing for support
of the family, or is imprisoned in the penitentiary, the court, where the
remaining one resides, may authorize him or her to manage, control, sell,
and encumber the property of the other for the support of the family and
to pay the other’s debts, or to pay debts for the family’s support. Either
may constitute the other an attorney in fact to dispose of property.
Expenses of family and children’s education are chargeable upon property
of both or either, and they may be sued separately or jointly. 11 she be
deserted or live separate from him without her fault she may sue in equity
for separate maintenance.
Interest. Legal rate, 5 per cent, but agreement in writing may be
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 i
Presentment. Is not necessary to charge one primarily liable ex
writing; oh money lent or advanced for use of another; on money due
cept in case of bank notes; if payable at special place ability and
on settlement of account lrom day of ascertaining balance; on money
willingness to pay it there at maturity is equivalent to a tender;
received to use of another and retained without owner’s knowledge; on
if not on demand it must be presented on day it falls due, if on demand
money withheld by unreasonable and vexatious delay, andonjudgments.
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 of twelve calendar months; and for any number of 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
Judgments of courts of record are a lien on real estate sitnated in
before or after drgwn 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 by 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 Sote must be unconditional promise in writing to
BANKING AND COMMERCIAL LAWS—INDIANA.
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 by delay; does not operate to assign any part of drawer’s
funds in bank and bank 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 Illinois consisting of 196
sections went into force July 1, 1907. Its provisions do hot 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.
Power of Attorney. Almost any act which a party may perform
may be performed by an attorney in fact. A non-resident corporation may
authorize by power of attorney, any business done here which it could do
if resident, and such authority need not be under seal. A scroll by the
agent will be treated as the corporate seal of the company. This does not
apply to railroad corporations. If land is to be conveyed by an attorney
in fact the power of attorney should be under seal.
Probate Law. (See Administration of Estates.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfuUy taken or detained may be
replevied by owner or party entitled to possession. In justice court
plaintiff or agent. Replevin bond must be double the value of prop
erty to be replevied. If dismissed without trial, suit may be brought
on the bond, in which suit, merits may be tried.
Taxes for the year are payable after December 1st, and the delinquent
list is delivered to county collector about March 10th, following. Delin
quent taxes bear interest at 1 per cent per month after May 1st following.
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
penalty.’’ No bid for penalty shall exceed 25 per cent of amount of taxes.
Redemption. To redeem, there must be paid, if within six months, the
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,
and during fourth six months, the tax and four times the penalty. Must
also pay all taxes and assessments accruing after sale, and < per cent
thereon. If not redeemed within two years, purchaser is entitled to tax
deed which is sometimes good.
Wages. (See Assignments, Garnishments, Exemptions.)
Wills. Last wil’s may be made by males of twenty-one and females of
eighteen. Must be signed personally or by direction of testator m his
presence, and attested by at least two witnesses in the presence of
each other and of the testator. At probate, two must testify that
they saw it signed, or that it was acknowledged by the testator and
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.
Probating a will is not conclusive, and bill in chancery may be filed within
one year to set it aside. Foreign wills admitted to probate in county
where testator may have owned lands. Wills made in one state, or COP1?®
duly proven from lhe record may be recorded here. A nuncupative will
is good if reduced to writing within 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
written within said ten days. No letters on such will granted until after
sixty days from testator's death.
SYNOPSIS OF TIIE LAWS OF INDIANA
RELATING TO
BANKING AND COMMERCIAL USAGES.
’renared and Revised by Messrs. Pickens, Moores, Davidson and
’ickens, Attorneys at Law, Indianapolis. (SeeCard in Attorneys List.)
Acknowledgments. All conveyances of real estate, except leases
or less than three years, must be in writing, and acknowledged and
■ecorded within forty-five days from their execution or they will not
find third parties. Within the State acknowledgments may be taken
lefore a judge or clerk of a court of record, justice of the peace, aud^oi*
■ecorder notary public, member of the general assembly, or mayor of a
•it? and “n other S ates and Territories before the like officers or a
SmUrijSe? ol deeds for Indi.n., ■" •?>/»'«!& ““‘J’
minister charge d'affaires or consul of the United states. 11 sucn
cknowledgmeut or proof Is in some other than the English language, or
neanine o1 hi? c/rUficate, if made in a foreign language. Wife must
ZOdells 'and mortgages of ^sband’. lands in orueyto carry her
lusband’s lands, although she must acknowledge.
Actions. The distinctions between law and equity are abolished. Ths
dawte provides but one form of action Biddings ane governed by code.
Non-resident plaintiffs must give bond to secure costs.
o- U»c? taw. m
Widow or widower. I. ^exioiaiu. o.
t
« whprp
;ers ?f
’^deaih™11^ Where not being inhabitant of the
3^“"^ assUs. Where an
“leSm^be
lie out of the State, leaving assets hi ?^\™1 pities, letterenuj be
panted in any one
granted shall extend to all of
Jeath; aud the
married woman without her hus^dTccmsemin writing0 Inch consent
with wife
Preference is given Wforeig^execuWr of a decedent not an
inhabitant
of State,
in another State, except
^ars
that proper
letters, have been ggranted
ewteiititied
v.hothere
are
No action shall be brought against an estate for
lh Hpeedent- but the holder thereof, whether the claim
file a succinct and definite statement thereof in the
K of the clerk of the court, setting forth all credits to which the estate
inhabitants
84
1321
is entitled, and accompanied by the affidavits of the claimant, his agent,
or attorney, that the claim is just and wholly unpaid. If claim be secured
by a lien, the 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 thirty days before the
final settlement of the estate, it shall be barred, except that heirs, devisees
and distributees shall be liable to the extent of the property received by
them, to any unpaid creditor who six months prior to the final settlement
was insane, an infant, or out of the State,— suit to be brought within one
year of removal of disability, and if upon claim of non-resident creditor,
within two years of the settlement of the estate.
Affidavits may be taken before any officer qualified to take acknow
ledgments (see above.) Date of expiration of officer’s commission mast
he certified.
Aliens. Resident aliens who have declared their intention to become
citizens, may acquire, hold, and enjoy real estate, and may convey, devise,
mortgage, or otherwise encumber the same, in like manner and with the
same effect as citizens of this State Aliens, whether resident, nr 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.
Arrest for Debt. Defendant in a civil action may be arrested and
held to bail in the amount claimed, at any time before judgment, on
affidavit that he is about to leave the State, taking with him property sub
ject to execution, with intent to delay or defraud the plaintiff. Bond is
required of plaintiff.
Assignments and Insolvency. Any debtor may make a general
assignment of all property in trust for benefit of all boua 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 Dis liabilities.
Attachment may issue against the property of a non-resident or
foreign corporation, and against any who may have disposed of, or be
about to dispose of, property, to cheat, hinder or delay creditors, or
against a creditor who conceals himself so that summons can not he
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
like affidavit and bond, and all share pro rata in the proceeds of the
attached 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 he
collected by attachment, or garnishment, when creditor, debtor, and
person owing for earnings intended to be reached are all within the juris
diction of the court of this State. The collection of claims so sent may
be enjoined.
Banks, Private. Act of 1907 (in effect Dec. 1, 1907), regulating pri
vate banking applies to any oue who may use theword “bank” in his
business. Capital must be at least 510,000, not more than one third of
which may be invested in the bank building. All real estate must be
held in name of bank. Bank' cannot invest in real estate except
in realizing on doubtful claim. Statement must be filed with state
auditor showing copy of articles of partnership acknowledged (one
of the partners to be resident of the state); location, amount of capital,
net worth of partners to be double capital paid in, names of
officers: List of officers must be postedin 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 all
persons interested is obtained by process served on officer in charge.
Banks, Savings. Governed by a general statute which regulates in
minute uetail the investments and conduct of business. Savings banks
may purchase, hold, and convey real estate for the following purposes,
and none other: For the locationof banking bouse; real etate mortgaged
to it in good faith for money loaned, or upon which it shall have pur
chased a mortgage; real estate taken upon judgments and decrees on
behalf of the bank, or purchased to prevent loss on claims held by the
bank.
Banks, State. Regulated by a general banking law. The auditor of
the State, appoints a State bank examiner who shall not be a director or
other officer of the bank, and shall have power to make a thorough
examination into all the affairs of the bank, and, in doing so, to examine
any of the officers and agents thereof on oath. The examiner reports in
detail the condition of the bank from time to time. The State banks must
make not less than five reports each year, verified by the president, or
other managing agent, which reports must exhibit the resources and liabil
ities at the close of business on any past day to be by the auditor specified.
The report so required, must he published in a newspapei where the hank
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 county. 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
dition. Any bank failing to make such report shall be subject to a pen
alty of $100 for each day that it delays to make and trausmit the same.
Bills of Exchange and Promissory Notes. No grace is
. allowed. Damages for protest on hills 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 he sued.
Protest is not necessary to hold indorsers of such notes, but to hold them
maker must be sued at first term of court after maturity, unless it can be
shown that he was insolvent at the time of such maturity. For all pur
poses of presenting for payment or acceptance, for the maturity and pro
test, and giving notice for the dishonor ol bills of exchange, bank checks
promissory notes, or other negotiable or commercial paper, the first day of
the week, commonly called Sunday; January 1st, commonly called New
Tear’s day; July 4th; December 25th, commonly called Christmas day
and any day appointed or recommended by the President of the United’
States or the Governor of the State of Indiana as a day of public fast
or thanksgiving; February 22d, commonly called Washington’s birthday
and May 30th, commonly called Memorial day, the first Monday in Sep
tember, called Labor day, 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 mature on the next succeeding
nusiness day. Saturday afternoon is a legal half holiday in the city of
Indianapolis, and may he made so by act of bankers in other cities of over
35,000 population.
Chattel Mortgages. Chattel mortgage on personal property left
1322
BANKING AND COMMERCIAL LAWS—INDIANA.
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 he valid against any other person than the parties thereto,
unless such mortgage shall be acknowledged, and recorded within ten
days after the execution thereof. Where delivery of the chattels to
the mortgagee occurs at the time, record is unnecessary. A mortgagee
of household goods can not sell mortgaged property except under a
judicial proceeding in the circuit or superior court.
Conveyances. 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 {gee 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 . nd passed by descent
by and from her, notwithstanding 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 be construed to create estates in common, and not
in joint tenancy, unless it shall be expressed therein that the grantees or
devisees shall hold the same in joint tenancy, and to the survivor of them,
or it shall manifestly appear from tenor of instrument, that it was intended
to create an estate in joint tenancy. A deed of release or quit-claim shall
pass all the estate which the grantor could convey by a deed of bargain
and sale. 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 aDolished; 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),”—
the 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 C. D. (here describe the
premises) to secure the repayment of (here recite the sum for which the
mortgage is granted or the note or other evidences of debt, or a descrip
tion thereof, sought to be secured, also the date of the repayment) ” — the
same being dated and duly signed and acknowledged by the 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 aeed pur
ports to convey absolutely any estate in lands, but is made, or intended to
be made, defeasible by force of a deed of defeasance, bond or other instru
ment for that purpose, the original conveyance shall not thereby be defeated
or affected as against any person other than the maker of the defeasance,
or his heirs or devisees, or persons having actual notice thereof, unless the
instrument of defeasance shall have been recorded, according to law,
within ninety days after the date of said deed. Every conveyance or mort
gage of lands, or of any interest therein, and every lease for more than
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.)
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 of 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 incorporatidh. 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.
Foreign corporations may not hold real estate except such as may be
necessary for proper carrying on of its legitimate business.
Courts. 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 probate
court. Superior courts have been established in many counties. Justice’s
jurisdiction. $200. Party may confess judgment before a justice of the
j peace for $300. When a written obligation for money binds more than
i one party the justice of the peace may issue process to constable of any
: county in the State where party resides. The supreme court has no
original jurisdiction. It sits at Indianapolis. The Appellate Court has
final jurisdiction in many cases.
Days of Grace are no longer recognized.
Depositions. Depositions may be taken anywhere in the United
| States without a commission, before any judge, justice of the peace,
I notary public, mayor, or recorder of a city, clerk of a court of record, or
I commissioner appointed by the court to take depositions. Person taking
deposition must not be of kin to either party or interested in the action.
When taken outside of the United States they shall be taken pursuant to
an order of the court, under a commission, with such reasonable notice
of the time and place of taking the same as the court shall require, and
they shall be certified and returned by the commissioner in such manner
as the court shall direct. Notice of the taking of the deposition should
be served upon the adverse party or his attorney, specifying the cause,
the court or tribunal of trial, the time and place of taking, and the
names of the witnesses. Reasonable time shall be allowed for the
attorney so served to communicate with the client, and for travel to the
place of taking, excludingthe dayof service, of the taking, and of inter
vening Sundays. The deponent shallbe first sworn according to law. He
I shall then be" examined by the party producing him, and then by the
adverse party, and then by the officer, if he see cauee. 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 of the officer,
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
j 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,
i A witness identifying a written instrument should attach it to his deposi! tion, making it a part of his answer.
Corporations. Domestic Corporations. Corporations are created
only under general statutes. This is done by means of 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
Descent. The real and personal property of any intestate shall descend
according to the nature of the corporation iu question and the law under i to his or her children equally; and posthumous children inherit equally
which it was organized. In the corporations which were in existence i with those born before the death of the ancestor. Children of deceased
November 1, 1851, and which accepted the terms of the act of March 6,
children take the share which would have descended to the father or
1883, stockholders are liable, in case of insolvency, for a sum at least
mother; and grandchildren, and more remote descendants, and other rela
equal to amount of stock held at time the debt was contracted In most
tives, lineal and collateral, inherit by the same rule, excepting that if the
corporations, stockholders who have paid for their stock are not liable for
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
debts of the company. However, there is liability in some cases for labor
tenants, or to the survivor, and the other half to the brothers and sisters,
and services of employes. Shares of capital stock in a private corpora
and to the descendants of such as are dead, as tenants in common. If there
tion are subject to attachment.
be neither father nor mother, the brothers and sisters, and the other de
Foreign Corporations. Agents of foreign corporations before entering
scendants, take the estate as tenants in common; or, per contra, the father
upon the duties of their agency in this State, shall deposit in the clerk’s
and mother as joint tenants of the survivor. Kindred of the half-blood in
office of the county where they propose doing business, the power of at
herit equally with those of the whole-blood in property puichased by the antorney, or appointment, under which they act. They shall also file a . cestor; otherwise, as to property acquired by gift, devise, or descent. Ille
duly authenticated order, resolution or other sufficient authority of the
gitimate children inherit from the mother same as if they were legitimate,
board of directors authorizing citizens or residents of this State having
and vice versa. Tenancy by the curtesy and dower are abolished, and
a demand against such corporation arising out of any transaction in this
widows take one-third of the real estate in fee simple, unless the property
State with such agents to maintain an action in respect to the same in any
is worth over $10,000, in which case, as against creditors, she takes onecourt of this State of competent jurisdiction, and authorizing service of
fourth only; and where the real estate is worth over $20,000, one-fifth only
process on such agent, and that such service shall authorize judgment
as against creditors, but as against other heirs she takes one-third in fee
and all other proceedings against such corporation. Contracts made by
simple, regardless of value, except where there is but one child, in which
such agents shall not be enforced in any court of this State until there has
case each inherits one-half. A second or subsequent wife, however, takes
been a compliance with the above provisions. Failure of a foreign cor
only a life estate in her husband’s lands, if there be a child or children by
poration to comply with these provisions will not bar—but will abate such
a previous marriage, and none by such widow. Other special provisions
action. Any person who shall, directly or indirectly, receive or transmit
of the statute are too extensive to set out. The estate of a person dying
money or property to or for such corporation, or make any contract, or
intestate without kindred capable of inheriting will caoheat to the State
transact any business for or on account of any such corporation, shall
for the support of the common schools.
be deemed agent. This provision does not apply, however, to persons
Divorce. Petitioner must have been a bona fide resident of the State
acting as agents for a special or temporary purpose or for purposes not
for two years previous to filing the complaint, and of the county for six
within the ordinary business, nor does it apply to attorneys at law. Any
months, and tnis must be proved by two resident freeholders and house
lerson acting as agent of a foreign corporation, who shall neglect or re
holders of the State. An affidavit of the petitioner must accompany
use to comply with the foregoing provisions, is liable to a fine in any
the petition stating the length of his residence in the State, the place of
sum not less than $50. In 1879 it was enacted that: Every foreign cor
such residence, and his occupation. Divorces are granted for the follow
poration now doing or transacting, or that shall hereafter do or transact,
ing causes: Adultery, except where petitioner has connived at the offense
any business in this State, or acquire any right, title or interest in or
or condoned it, or has given defendant the same cause for divorce; im
lien upon real estate in this State, that shall transfer or cause to be
potency, existing at time of marriage; abandonment for two years; cruel
transferred from any court of this State to any court of the United
and
inhuman treatment; habitual drunkenness; failure of husband to
States, save by regular course of appeal after trial in the State courts,
provide for his family for two years; conviction of an infamous crime
any action commenced by or against such corporation in any court of
subsequent to marriage. Divorce may be granted for a cause arising
this State by or against any citizen or resident thereof: or that shall
outside the State. It it appear by affidavit of a disinterested person
commence in any court of the United States in this State, on any contract
BANKING AND COMMERCIAL LAWS—INDIANA.
that the defendant is n non-resident, the plaintiff must make and
file his affidavit stating the residence of the defendant, if known, and if
unknown, that must he 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.
Dower. {See Married Women.)
Executions may issue at any time within ten years after judgment
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 oflicer. 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 annlied 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 sufficientfreehold 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 haying 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.
Exemptions, Property up to $600 is exempt where debtor is a
resident householder. Resident householder is entitled to exemption as
well when in transit with his family and property as when permanently
settled. The debtor must file a schedule of all of his property, and
select the property claimed, which is then appraised. Contract wan ing
exemption is void. Pension money in transit to pensioner is exempt,
but when received by him and invested in other property is no moreso
than any other property. One month’s wages also exempt if the debtor is
still employed.
Fraud. Assignments, in writing or otherwise, of any property made
or suffered with intent to hinder, delay, or defraud are void aei to the
persons defrauded. The question of fraudulent intent is a question of
fact.
Frauds—Statute of. The following contracts, if enforcible in court,
must be in writing and signed by the party to be charged. .
charge an executor or administrator, upon any special promise, to
answer damages out ol his own estate. 2. To charge any person, p
any special promise, to answer for the debt, def““lt»
® ®
another. 3. To charge any person, upon any
% P1?™1®?:
made in consideration of marriage. 4. Upon “y contract for the sale
of land (except loan not exceeding the term of three years). 5_VP°°
any agreement not to be performed within one yc^^om the makin
thereof. 6. Sale of goods exceeding $50 in value, unless part payment
or part delivery be made.
.
Garnishment. {See Attachment.) Garnishmentafrcmedy m aid
of attachment. Upon any personal a.cV°n fondant nnln an affidavit
nerson mav be summoned as a garnishee defendant upon an amuavii
?hat offic“aYhas good reason to belilve that any pe^on named. hasproperty
of the defendant in his possession or under his control, or that he w
indebted to the defendant, or has control or agency of monev property,
credits, or effects; that he lias any »hare or lnierest In the shock of ay
association or corporation, and all money or P£0Pern; served upon
garnishee defendant is bound from the time the summons is sen cd upon
Kim. Resident householders are entitled to an exemption of $600 m
garnishment proceedings, as in all other cases..
£ . extent of one
to the amount of $25, and of resident househo d
defendant
month’s wages, are exempt from execution so
g
remains in the employ of the garnishee. India
instituted elsebe sent or taken out of the State for prosecution and suits rnstituted else
where in violation of this prohibition may be enjoined and the onenuer
be criminally prosecuted.
Holidays. {See Bills of Exchange and Promissory A otes.)
Husband and Wife. {See Married Women.)
1323
and also in cases where real estate is seized by attachment or execution.
Unless so recorded the bringing of suits does not operate as a constructive
notice.
Limitations to Suits. Actions for injury to person and character,
and for statutory penalty or forfeiture, two years; against public officers
relating to their official duties, and on public improvement assessments,
five years; open accounts and contracts not in writing, for use, rents
and profits of real estate, injuries to and detention of property, recovery
of personal property and relief against frauds, six years; upon prom
issory notes, bills of exchange and other written contracts for payment
of money, ten years; actions not limited by statute, fifteen years; other
written contracts, judgments of courts of record and real actions, twenty
years. Revivor: part payment or new promise in writing. Except in
favor of sureties, the statute of limitation does not run against the State.
Married Women control their real and personal property, The
husband is liable for the wife’s debts contracted before marriage to the
extent of the personal property he may receive from her, and no
further, and her lands are liable for such indebtedness. A married
woman may devise her separate estate; may sell and transfer her separ
ate personal property; carry on any business, labor, or service, and
receive the earnings accruing therefrom; enter into any contract in
regard to her separate personal estate business, labor, or service, and
her separate estate, real and personal, be liable therefor, the same as a
femme sole; and her husband is not liable for such debts, nor for
indebtedness created by the wife for improvement of her separate real
estate. She can make leases of real estate for terms of three years or
less, and execute mortgages to secure purchase money, without husband
joining. She is bound by covenants of title in conveyances of her sepa
rate real estate. Her deed conveying her real estate, her husband not
joining, is absolutely void. She may sue as & femme sole for any dam
age to her person or character. She is bound in like manner as principal
on her official bond. She can not enter into any contract of suretyship,
and such contract, as to her, is wholly void; and therefore a mortgage on
her separate property for a debt for which she is mere surety indorser, or
guarantor, is void: but if, as an inducement to her contract, she makes
a sworn statement that contract or mortgage is for her own benefit, in
respect to her separate estate, she is estopped from alleging her suretyship
as against any one having no knowledge that the contract is one of suretyship. She is entitled to hold as exempt from execution her wearing
apparel, articles of personal adornment purchased by herself to the
amount of $200 in value, all jewelry, ornaments, books, etc., which may
have peen given her as presents; and other property to the amount of
$300, except as against indebtedness for the purchase money therefor.
A widow takes one-third of her deceased husband’s real estate in fee,
and free from all demands of creditors, where the estate does not exceed
$10,000; one-fourth, if under $20,000, and one-fifth, if above that amount.
She also takes a child’s interest in the personalty where the number of
children does not exceed two, and where there are more than two her
interest shall not be less than one-third of the whole of personalty after
payment of debts, and in all cases takes $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 asain, 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
betaken 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 for a debt of the husband has
no legal validity.
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Mortgages. {See Conveyances.)
Power of Attorney must be executed and acknowledged, and (if
: for the conveyance of real estate, or to affect real estate) recorded, in the
I same manner that deeds are made.
Probate Law. {See Administration of Estates.)
Protest. The statutory damages on such protest are 5 per cent on
the principal of a bill of exchange, il drawn or negotiated within this
State, upon any person, at any place out of this State, but within the
United States, and 10 per cent if upon any person, at any place without
the United States.
«nd°ihe” icef" X'bc Coup'S by tfe debtor
Replevin. When any personal property is wrongfully taken or un
reserved or paid before the bringing of the s •
specified in the
lawfully detained, or, if taken on execution or attachment, is claimed by
runs from the date of the verdict or finding, at the rate specinea in tne
a
third
party, the owner or claimant may bring an action for possession
original contract, not exceeding 6 per cent, and if no contract has been
i thereof. He may claim immediate delivery upon affidavit therefor, where
made 6 per cent is allowed.
upon the sheriff takes possession of the property, and if a delivery bond
Judgments of courts of record are a
?P”°nta”obtained
is given on behalf of the defendant within twenty-four hours, the propdefendant within the county for ton years.
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served on debtor ' 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 plainat the first term of the court, alter process
court
| tiff has twenty-four hours in which to file bond. Justices of the peace
have jurisdiction in replevin suits involving property worth $200 or less.
Procedure is same before justice of the peace, except that the plaintiff
«•“ for ab,««of
must file bond in all such cases. Replevin may also be had without
bond, by allowing defendant] to retain possession of property pending
Indiana may be filed with the county clerk.
suit.
Liens. Liens are granted by statute to
Saits. {See Actions.)
claims against watercraft on account o
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contracts, or for willalso for demands for damages a risingout of ireignv co
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contract
Taxes. State, county, township, municipal, school, and road taxes
fulness or negligence olf the masteor property; also i attach as a lien on real estate on March 1st of each year, and penalties
relating to transportation, and forJi
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0| ips corporate property or
attach on first Monday in May in the next year. One-half of
to employes of any.corPorn^o,AaBk^rslof livery stables and all persons
alltaxes may be paid iwithout penalty, if paid before first Monday ol
earnings for labor done, also to keep
bestowed upon the same;
May; other half, if paid before first Monday of November. Sales of real
engaged in feeding stock, for the ed .
-C8 journeymen, laborers, and
estate for taxes are held on the second Monday of February, and all lands
a180 to contractors, sub-contractomaterial'or machinery for
on which taxes are delinquent for two years are offered. Owner has two
all persons performing labor or furnisl ing
ml,b manufaclory or
years in which to redeem, by paying the amount set forth in the cer
tificate of purchase, with all subsequent taxes paid, and 10 to 25 per
cent upon the whole sum, with legal interest Irom the date of purchase
lire, known
mecUnic’sUien;
i or payment. Lands are sold for one year’s delinquency, but the followvalid and reasonable charges
bailee or keeper of personal property for 5 ing year’s tax (not yet delinquent) is embraced in the amount of the sale.
any article of value; “^"'hv him upon such propertj” also u/forwarding
Wills. Nuncupative wills, where property oi more than the value
any feed or care bestowed by
J which mav have remained in store
of $100 is bequeathed, are not valid, except as to the personal propand commission merchants on goodj " “ d in |any county in the State are
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erty
and wages of soldiers and sailors in actual service. A nuncupative
for one year or more
.derfor- a
of te„
will must be reduced to writing within fifteen days after it shall have
a lien upon the real
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judgments rendered m the federal
been declared and proved by two competent witnesses who shall have
years from the rendition'thereof, rn^
period,
heard the testator request some of those present to bear witness thereto.
courts are a lien upon any
weTer fOr the filing in the county where
No will in writing is valid unless signed in the presence of two or more
Provision is made by statu ,
crjpt of any judgment rendered in the
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witnesses by the testator, or by some one for him in his presence,
the real estate is situated o
cJerk
the circuit COurt in each
United States courts. T
knoWn as the Lis Pendens record, in which | with his consent, and attested and subscribed by two or more witnesses
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at his request, and in his presence and that of each other.
nXeVfSh?nVof complaints to enforce liens are required to be recorded,
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1324
BANKING AND COMMERCIAL LAWS—IOWA.
SYNOPSIS OF THE LAWS OF IOWA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Dale & Harvison, Attorneys at Law, Des
Moines. (See Card in Attorneys' List.)
Accounts and Claims of. Statements of account, for use in court
or for proof in the settlement of estates of deceased and in guardianship
matters, must be itemized and verified. A statement of “ balance,” or
“goods,” or “merchandise” is not sufficient.
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Acknowledgments. All instruments affecting real estate, includ I
ing mortgages, needs of trust, powers of attorney relating thereto, and
leases for more than one year, must be acknowledged or the execution
thereof proved, and the instruments must be recorded in the proper office,
so as to affect third parties. The same is also true as to bills of sale,
absolute or conditional, and chattel mortgages relating to personal
property. Articles of incorporation must also be acknowledged and
recorded. The forms of acknowledgment and the officers, within and
without the State, before whom such acknowledgments may be made are
prescribed by statute.
Actions. The common law forms of pleading are not used, although
the common law forms the basis of procedure. ’Pleading, practice, and
procedure are statutory, and accord, in the main, with what is known as
the reformed, or Code procedure.
Administration of Estates. Where an executor is not appointed
by will, administration shall be granted: 1. To the spouse of the deceased.
2. To the next of kin. 3. To creditors. 4. To any other person whom
the court may select. Claims against the estate of a deceased person are
payable in the following order: 1. Debts entitled to a preference under
the laws of the United States. 2. Public rates and taxes. 8. Claims filed
within six months after the first publication of the notice given bv the
executors or administrators of their appointment. 4. All other debts.
5. Legacies and distributive shares. All claims of the fourth of the
above classes not filed and allowed, or if filed and notice thereof not
served within twelve months from the giving of the notice of appoint
ment are barred, except as to actions against decedent pending in the
district or supreme court at the time of his death, or unless peculiar
circumstances entitle the claimant to equitable relief.
Affidavits. Affidavits may be taken before any person authorized to
administer oaths in the State where taken. If taken without the State of
Iowa, the official character of the officer administering the oath should be
evidenced in the same way as the official character of an officer taking
depositions. (See Depositions.) Affidavits may be taken within the State
for any lawful purpose, of one unwilling to voluntarily make an affidavit,
by filing a petition with an officer authorized to administer oaths, who
may cause the person to come before him and make affidavit. This pro
ceeding is statutory and must conform strictly to the Statutes of Iowa.
Allens. Non-resident aliens or corporations incorporated under the
laws of any foreign country or corporations organized in this country,
one-half ol the stock of which is owned or controlled by non-resident
aliens are prohibited Irom acquiring title to or holding any real estate in
Iowa, but the non-resident alien widow, heirs, or devisees of an alien or
naturalized citizen may hold the same for twenty years, aud 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 sola within ten years after title is perfected in an alien,
otherwise it will escheat to the State. <
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Bills of Exchange. The negotiable instrument law recommended
by the Interstate Commission on uniformity of law has been enacted and
is now law in Iowa. (For Grace, See Days of Grace.) A provision for
the payment of exchange, in addition to the amount ol principal and
interest, does not render a bill of exchange non-negotiable.
Collateral Securities. There are special statutory provisions con
cerning the pledging of corporate stock, as security: 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
eign the same joint instrument. A corporation executes conveyances
under its corporate seal, except where the corporation has not adopted a
seal; such conveyances must be acknowledged by the proper officers.
Corporations. Private corporations, sole or aggregate, may be
formed for any lawful purpose. But there are special statutory provisions which must be complied with for the organization and govern
ment of Insurance, Banking, Loan and Trust, Building and Loan and
Railway Corporations. In all cases, the Articles of Incorporation must
be acknowledged and recorded, in the manner provided by law, and approved by the Secretary of State. With a few exceptions, an incorporation fee o"f §25.00, plus §10.00 for each thousand dollars of capital in ex
cess of $10,000 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, savings banks, and a few
others may last 50 years, also renewable.
Courts. Terms and Jurisdiction. The district court has jurisdiction of all actions, civil and equitable, and has criminal and probate juris
diction. Superior courts may be established by the vote of the people
in any city of 5,000 inhabitants. It has jurisdiction to try all violations
of city ordinances, and the same criminal jurisdiction as justice of the
peace courts. It has jurisdiction to try and determine civil and criminal
appeals and civil writs of error from justices of the peace, situated in the
township where the courtis located. Has the same jurisdiction as the
district court to try all suits in law and equity, except granting divorces,
alimony, and separate maintenance, and it has no probate jurisdiction.
Transcripts from superior and 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.
Days of Grace. Every negotiable instrument is payable at the time
fixed therein without grace.
Depositions may be taken within tbe 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 of Property. Subject to rights of
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
Arrest. No person can be imprisoned for debt on either mesne or
of any deceased child shall inherit in same manner as though such child
final process, unless in case of fraud. Debtors, however, may be ordered
had outlived his parent. If the intestate leave no issue, one-half of his
to appear before a court of record wherein a judgment has been
estate
shall go to the parents, the other to the spouse. If no surviving
rendered, and if the debtor is about to leave the State, or conceal
spouse, the whole thereof shall go to his parents or the survivor of them;
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 I and so on through ascending ancestors and their issue, if both parents
be dead. Personal property not necessary to pay debts is distributed
property.
to the same persons, and "in the same proportions as though it were
Assignments and Insolvency. General Assignments not valid
real estate.
unless tor benefit of all creditors, when assent of creditors is presumed.
Divorce. Divorces are granted in equity in the district court for the
The debtor must annex to the instrument of assignment a sworn
following causes: 1. Adultery committed subsequent to marriage.
inventory and list of creditors; and such instrument must be acknowl
2. Desertion, without reasonable cause, for two years. 3. Conviction
edged and all of the papers recorded like a deed of real estate. The
ot felony after marriage. 4. Addiction to habitual drunkenness after
assignment vests in the assignee title to all property of the debtor.
marriage. 5. Inhuman treatment such as to endanger the life of wife.
Assignee must give bonds, prepare a verified inventory and valuation,
The husband may obtain a divorce for like causes. When a divorce
and notify creditors by mail to file claims within three months. All
is decreed, the court may make such order in relation to the children
claims not filed within three months after notice published or within
and property of the parties, and the maintenance of the wife, as shall
such extended time as the court grants, not exceeding nine months,
be right and proper, and the parties forfeit all rights acquired by the
including claims not yet due, can not be paid until all claims filed
marriage. They are not granted on the testimony of the plaintiff
within said time are paid. An assignment does not discharge the debtor
alone and all such actions must be heard in open court.
from his debts and liabilities, but only entitles creditors to share equally
Dower. Dower in Iowa is abolished, but the surviving spouse is
in his estate. All claims filed must be itemized and sworn to.
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
Attachments. An attachment, auxiliary to the main case, may be
rqarriage. which have not been sold on execution or any other judicial
sued out upon anv one of twelve (12) statutory grounds for a debt, which
sale,
and to which such survivor has made no relinquishment of right. A
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 I spouse, heir or devisee feloniously taking or procuring the taking of
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the
life
of the other spouse, or decedent, cannot have dower or inherit
claimed, if the action is founded upon contract, otherwise, in a sum to be
power or take under the will of the decedent. (See Limitations.)
fixed by the court, if the action is not founded upon contract. Garnish
ments may be effected under the writ of attachment. Special attachments
Executions may be stayed, according to their amount, for 90 days
are permitted, to attach specific jiersonal property, in a few prescribed
or six months, with a few specified exceptions, and the issuance "of
cases.
execution may be prevented by filing an appeal bond. Otherwise
execution may issue immediately after rendition of judgment. The
Banks. The banks organized under the laws of Iowa are respectively
judgment is a lien on realty within the county whe^g rendered, or by
designated as Savings Banks and State Banks.
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
Savings Banks must have a minimum capital of from $10,000 to
seizure. Real estate is sola on execution subject to redemption within
550,000, according to the population of the city or town in which each is
one
year, except in appealed cases, or where the Interest is a leasehold
located. Each share must be of the par value of $100.00. The statutory
of two years or less. Creditors may redeem from the sale after six
provisions most be consulted concerning the manner of organization, the
months
and before nine months from date of sale. Personal property
issuance of and payment for capital stock, the board of directors, quorum,
is sold without redemption.
voting by proxy, limitation of tleposits, and the investment thereof, the
loaning of funds, the cash reserve required, and the dissolution of such
Exemptions. The head of a family is entitled to a homestead of 40
banks.
acres or less of farm land, or half an acre or less in city or town.
Pension
money, its pi oceeds, wages of a married man, and numerous
State Banks must have a minimum capital of from §25,000 to $50,000,
items of personal property are exempt by statute. There are statutory
according to the population of the city or town in which each is located.
provisions
concerning the creation of liens on exempt real or personal
Each share must be of the par value of $100.00. The statutory pro
property, and the assignment of exempt wages.
visions must be consulted for the particulars above referred to on the
Fraud. In actions for fraud, heretofore solely cognizable in a court
subject of Savings Banks.
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BANKING AND COMMERCIAL LAWS—KANSAS.
of chancery, the cauee of action shall not he 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 ts set aside a fraudulent conveyance of property from
one sponge 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.
Garnishment. (See Attachments.)
Husband and Wife. (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 of
accounts, bear interest at 6 per cent per annum. Contract for more
than 8 per cent forfeits all interest and costs.
Judgments in the district and superior courts may be obtained at
first term after suit commenced, if undefended; an equitable action,
except one for foreclosure of mortgage, or mechanic’s lien, or for divorce,
is triable at the second term after the case is at issue. Judgments of the
district court are liens on real estate owned by the debtor at the time
of rendition. If the lands lie in any other county, from the time of
filing therein an attested copy of the judgment.
Lien also covers all
lands which defendant may acquire within ten years from date of
judgment, or upon which a levy is made after ten or before twenty
years from the date of the judgment, but this lien dates only from the
time of the levy. Judgments of superior couno 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.
Liens. These are mainly created bv statute and are enforceable in
equity. In a few cases, and under peculiar circumstances, equitable liens
on real estate are established and enforced in equity.
Limitations. 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. Dower rights and mortgages existing or created prior to Jan
uary 1, 188o, are barred, unless now properly preserved in the re
corder’s office. Imperfect deeds by executors, administrators, trus
tees, or guardians made prior to January 1, 1885, are confirmed in
favor of grantees in possession.
Married Women 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 of 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 if unmarried. Both husband and wife are liable for the
expenses of the family, and the education of the children.
Mortgages 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 estateafter
execution sale, except as stated under the sub-title “Executions. When
a mortgage is paid off, satisfaction thereof must be made on margin of the
record, or by satisfaction piece, acknowledged and recorded. If no satis
faction is entered within thirty days after request in writing, the mort
gagee forfeits $25. (See Chattel Mortgages.) (See Limitations.)
Notaries. These officers are appointed and commissioned by the Gov
ernor, upon filing a bond and paying the fee required by law. They have
power to administer oaths, take depositions, and the usual power of such
officers concerning presentation, demand, protest, and notice of protest of
negotiable commercial paper.
Partnerships, Limited and Special. Limited and special partner
ships are permitted, but not favored. The statutes on this subject must be
strictly complied with. A certificate showing prescribed details and par
ticulars of the partnership must be signed, acknow ledged, and filed in the
office of the clerk of the district court of the county “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 nartnershiD is to transact business.
Powers of Attorney. A power of attorney to convey, or in any
manner affect real estate, must be acknowledged and recorded. A
revocation of such power must be acknowledged and recorded m the
same office wherein the original power of attorney is recorded.
Receivers. In distributing property in the hands of a receiver there
shall be paid in the following order: 1. 1 axes or debts due the United
States; 2. Taxes or debts due the State; 3. Debts owing to employes
for labor, not exceeding $100.00.
Records. 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 signal
recorded in the office of the recorder of deeds ln the proper tounty 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 ot adoption.
Redemption. 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 bv paving to the clerk of the court the amount provided by
statute bein^gencralTv, the amount of the purchaser s bid, with interest
at thekame
that the judgment bears. Within the time named credUora Z r«leemfrom eacS other. After nine months, and within one
year from Sateof sale the owner of the real estate sold has the
exchmive right to rtxleem from such sale, and, in so doing, the debtor
mst’nav off the claims of judgment creditors, who have made redempkms a^hereinabove stated, in addition to the amount originally bid.
itahi lhe property by executing a bond to the plaintiff, with sureties to
e approved by the clerk.
Taxes. Real estate Is assessed every odd year; personal property is
•sessed every vear. All property is assessed at its actual value, and
ixed at twenty-five (25) per cent of the assessed value. All road taxes
1325
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 I per cent per month
Taxes upon realty are hens 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 the personal property of non-residents
stocks of goods sold in bulk, and buildings or additions made after the
assessment for taxation in the odd years. Personal property mav 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.
Trust Companies. 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 bv the
general statutes concerning and relating to foreign corporations doin'*
business in Iowa. (See Corporations.)
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vxkvvulvu
uuu XUXCUUOCU, H.I111 consid-
ered as mortgages. That is, the power of sale on notice is abolished and
they must be foreclosed by equitable action.
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Warehouse Receipts. 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 bv
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 iu anv
warehouse receipt, is made a criminal offense. There is also a criminal
statute against issuing false warehouse receipts or certificates.
Wills. Any person of full age and sound mind may dispose of his
property by will, subject to the rights of homestead and exemption
created by law and the distributive share in his estate given by law to the
surviving spouse, except sufficient to pay his debts and expenses of
administration. Wills, to be valid, must be written, witnessed by two
competent witnesses, signed by the testator, or by some person in his
presence and by his express direction. Subscribing witnesses can derive
no benefit from a will, unless there be two competent witnesses besides
them. Wills executed outside of Iowa, in accordance with the laws of
the state where executed or of the testator’s domicile, if in writing and
subscribed by the testator are valid in Iowa. If probated in any other
state or country they shall be admitted to probate in this State on the
production of a copy of such will, and of the original record of probate
thereof, authenticated by the attestation of the clerk of the court in which
such probation was made or of the probate judge, under seal, if they have
one. All wills must be probated before they can be effectual.
1
SYNOPSIS OF THE LAWS OF KANSAS
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by J. G. Slonecker, Esq., Attorney at Law
Topeka. (See Card in Attorneys' List.)
Acknowledgments.1 (Zfea Deeds.)
Actions. Civil actions are conducted as required by a code of pro
cedure. Security for costs must be given or plaintiffs may deposit ft 15 in
lieu of bond for costs.
v
Administration of Estates. Probate courts in each county have
jurisdiction of estates. Demands against the estate are divided into the
following classes: 1. Funeral expenses. 8. 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 insolvl
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 vears. 7. All demands
thus exhibited after the expiration of two years and within three years
Demands not exhibited within three years are barred, except as to
infants, persons of 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
in the will, unless administration upon the estate has been granted in
this State; provided that at the time of such conveyance a copy of such
will has been recorded in the office of the probate court in the countv in
which the land is situated.
J
Affidavits. Affidavits may be made in or out of the State by the same
authority and with like authentication, as depositions.
repealed 1901. (See Foreign Corporations).
Arbitrations. Persons having controversies may submit them to the
arbitration of any person or persons mutually agreed upon and mav 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.
aitbsi.
a ueienaani may De arrested in a civil action upon filing an
affidavit with the clerk of the court that he has removed or becun to
remove his property out of the jurisdiction of the court with intent to de
fraud his creditors; or has begun to convert his property into cash for the
purpose of placing it beyond the reach of his creditors; or has pronortv
which he fraudulently conceals; or fraudulently contracted the debt.
3
Assignments and Insolvency. Assignments must be for the
benefit of all creditors and only discharge the debtor to the amount of
payments made.
Attacnment. At or alter the commencement of an action an attach
ment may be had by plaintiff. The affidavit of the plaintiff his agent
attorney must be filed, stating the nature of the claim, that it is just t
omnnnt flfflfiTithplipvpunnffht tnbo yooAvoen/1
__
-J
1
1326
BANKING AND COMMERCIAL LAWS—KANSAS.
demand arising upon contract, judgment, or decree, unless the cause
of action arose wholly within the limits of the State). 2. That
the defendant absconded with the intention to defraud his creditors.
3. That the defendant has left the county of his residence to avoid
a service of summons. 4. That .he so concealed himself that sum
mons can not be served upon him. 5. That he is about to remove
his property or a part thereof out of the jurisdiction of the court with
the intent to defraud his creditors. 6. That he is about to convert
his property or a part thereof into money for the purpose of placing it
beyond the reach of his creditors. 7. He has property or rights
in action which he conceals. 8. Has assigned, removed, or dis
posed of, or is about to dispose of his property, or a part thereof, with
the intent to defraud, hinder, or delay his C’-editors. 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.
Banks and Banking. 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
majority of whom shall be residents of the county or adjoining coun
ties to that in which the bank is located. The word “ State” shall
be included in the title. The full amount of the capital stock
must be subscribed before the charter is filed. The bank shall trans
act no business, except the election of officers, the taking and
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 $10,000. No
bank shall employ its money directly or indirectly in trade or commerce
by buying and selling goods, chattel's, wares, and merchandise, and shall
not invest in the stock of any bank or corporation, nor make any loans on
the security of the shares of its own capital, nor be the purchaser or
holder of any such shares, except to prevent loss upon a debt previously
contracted in good faith. All such property coming into the possession
of the bank in the collection of debts shall not be considered assets after
the expiration of six months. Banka must have on hand in available
funds the following sums: In cities having less than 5,000 population, 20
per cent of their deposits; in cities having over 5,000 population, 25 per
cent, one-half of which may consist of balances due from good solvent banks
located at commercial centers and at such other points as the Bank
Commissioner may approve. The other half shall consist of actual cash.
Officers are personally liable for paying overdrafts. Not more than 15 per
cent of the capital stock and surplus can be loaned to any one person,
company, or corporation. No bank shall accept deposits continuously
for six months in excess of ten times its paid-up capital and surplus.
Penalties are provided for false statements and for receiving deposits when
the bank is in a failing condition. Private banks are subject to the pro
visions of the law. The Bank Commissioner, or deputy, must make ex
amination of each hank at least once a year. Pour reports per annum
are required, and the commissioner may call for others. Banks may pur
chase, hold, and convey real estate under certain conditions to the extent
of 50 per cent of their paid-up capital. Shareholders are additionally lia
ble for a sum equal to the par value of stock owned and no more.
Deposit Guaranty Fund. Any bank having an _ unimpaired sur
plus equal to 10 per cent, ofJits capital, may participate in the guar
anty fund act. Such bank must deposit with the State Treasurer
money or bonds of the United States, State of Kansas, or of any
township, school district, board o^ education or city within the
State, to the amount of $500 for each $100,000 of its average de
posits eligible to guaranty (less its capital and surplus). It shall
also pay in cash an amount equal to one-twentieth of one per cent,
of its average deposits eligible to guaranty (les3 its capital and
surplus).
In January of each year the commissioner shall make assessments
of one-twentieth of one per cent, of the average guaranteed deposits
of each bank until the cash fund accumulated amounts to $500,000.
The commissioner may make additional assessments of the same size
not more than five in any one year. If a bank fails, the bank commis
sioner takes charge and winds up its affairs. He issues to each de
positor a certificate bearing 6 per cent, interest. Any balance due
after assets are exhausted is payable out of the guaranty fund.
Deposits which do not bear interest, time certificates, payable in not
less than 6 nor more than 12 months, bearing interest at not exceed
ing 3 per cent., savings accounts not exceeding $100 to any one
person and not subject to check, bearing not to exceed 3 per cent,
interest are entitled to participate. Re-discounts and all deposits
otherwise secured do not participate, nor a bank’s obligation as in
dorser upon bills re-discounted, nor to bills payable, nor to money
borrowed temporarily.
Banks are prohibited from advertising1 that deposits are" guaran
teed by the State but are permitted to advertise that deposits are
guaranteed by the Bank Depositors’ Guaranty Fund.
Bills of Exchange. (See Notes and Bills of Exchange.)
Bills of Lading. These are governed by the common law.
Collaterals. Governed by the common law on Bailments and
Pledge.
Conditional Sales. 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.
Contracts. All contracts which, by the common law, are joint only,
shall be construed to be joint and several. The use of private seals in
written contracts (except seals of corporations) is abolished.
Conveyances. (See Deeds.)
Corporations. 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 of 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 of 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
it? 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 he 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, on 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 be
increased to an amount not exceeding three timet 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 of its capital
stock.
(See Actions.)
Courts. Terms and Jurisdiction. District courts, holding two to
three terms a year in every county, have general original jurisdiction in
law and equity. Regular terms of the probate court are held in each
county on the first Monday in January, April, July, and October, and
special or adjourned terms may be held as business may require. Jus
tice’s jurisdiction in civil actions for the recovery of money, $300; to
recover specific personal property, $100. The supreme court is the court
of last resort. (See Appeals.)
Costs.
Creditors’ Bills. Creditors may bring an action in the nature of a
creditors’ bill to marshal assets or set aside fraudulent conveyances as in
other States.
Days of Grace.TAbolished.
Deeds. 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 of 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 of the peace, notary public, county clerk, register
of deeds, mayor or clerk of an incorporated city. Every notary public
shall add to his official signature the date of the expiration of his com
mission as notary public. In cases where the acknowledgment is made
out of the State it must be made before a court of record, a clerk, or other
officer having the seal thereof, a commissioner of deeds for Kansas, justice
of the peace or notary public, or before any consul of the United States
resident in any foreign country or port. Deeds and mortgages must be
recorded in the office of the register of deeds of the county in which the
land is situated, or they will be void as to subsequent grantees in good
faith without notice.
Deeds of Trust in the nature of mortgages are not used so far as
sale by the trustee is concerned. (See Trusts, etc.)
Depositions. Depositions are taken upon notice to the opposite
party. Courts are also authorized to appoint commissioners to take
depositions. The depositions may be 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 of a deposition taken on each successive day, Sundays and national
holidays not being regarded. If taken by interrogatories and cross-inter
rogatories, under agreement or otherwise, each interrogatory and cross
interrogatory must oe put to each witness aDd Answered so far as he can
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.
Descent and Distribution. The homestead is the absolute property
of the widow and children—one-hall in value to the widow, and the other
half to the children, when both survive. The homestead can not be
divided or sold by an action for partition until all the children attain
majority. One-half of all real estate owned by husband during coverture,
and not conveyed by husband and wife, nor sold at judicial sale, ana
not necessary to pay debts goes to the wife in fee simple; except of land
sold by husband whose wife never resided in the State. Remaining
estate goes to the surviving children, and living issue of prior deceased
children, children taking per stirpes, in equal shares, or, if none, to the
widow. For want of wife or child the whole estate goes to the parents.
The rules applicable to widow of deceased husband apply to husband
of deceased wife. Illegitimate children inherit from the mother, and also
from the father, if his recognition has been general and notorious, or in
writing. When a child would inherit from either parent, such parent will
inherit from the child. Personal property descends in the same way
as real estate. After March 16, 1909, property descending by law or will
is subject to an inheritance tax, varying in percentage according to re
lationship and amount. (See Exemptions.)
Divorce. Divorces are only granted by district court for the following
causes: Former marriage; one year's abandonment; adultery; impotency;
pregnancy of wife by otner than her husband: extreme cruelty; fraudulent
contract; habitual drunkenness; gross neglect of duty; conviction of
felony. The plaintiff 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.
Dower. Dower is abolished by law. (See Descent and Distribution.)
Evidence. (See Testimony.)
Executions may be ordered as soon as judgment is obtained. There
is no stay of execution in the district court. In justice's courts, by 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.
BANKING AND COMMERCIAL LAWS—KANSAS
1327
Exemptions. Homestead of 160 acres of farming land , or of one
Mortgages. A mortgage of real estate, to be valid as against subse
acre within an incorporated town or city, with buildings thereon,
quent bona fide purchasers, must be duly acknowledged and recorded in
the office of the register of deeds of the county where the land is situated.
unlimited in value. All household goods and wearing apparel;
Mortgages may be discharged on margin ot record by mortgagee or
two cows, ten hogs, one yoke of oxen and one horse or mule,
attorney or assignee in presence of register, or by satisfaction entered
or in lieu of one yoke of oxen and one horse or mule, a span of
on the instrument when copied on the margin by the register; or by an
horses or mules, and twenty sheep and their wool; necessary food
independent release duly acknowledged and recorded. Wife must join
for the support of such stock for one year; one wagon, two plows, drag,
in all mortgages except those for purchase money. Mortgages are fore
and other farming utensils, not exceeding $300; grain, meat, vegetables,
closed by suit only. By an act of the Legislature which took effect May
groceries, etc., for the family for one year; the tools and implements of
18, 1893, real estate sold under foreclosure oi mortgage is subject to
any mechanic, miner, or other person, kept for the purpose of carrying
eighteen months redemption. If the mortgage foreclosed is for the pur
on his business, and in addition thereto stock-in-trade not exceeding
chase
money six months only is allowed for redemption. This act does
$400 in value; library, implements, and office furniture of any pro
not apply to mortgages executed prior to the date the act took effect.
fessional man. Also personal earnings of the debtor earned during three
When a mortgage is assigned the assignment should be acknowledged
months preceding the garnishment or attachment, and three months'
and recorded. If the assignment was executed prior to March 15, 1899, it
pension money, where such earnings or pension money is necessary for
can be recorded whether acknowledged or not, and under the law must
the support of the debtor’s family.
!
be
recorded within four months from that date or payment to the recent
Foreign Corporations. A foreign corporation doing business in
of the mortgage will be a complete defense to an action thereon.
this State must file a certified copy of its charter with the secretary of State j! owner
(For
Forms,
Deeds; see Executions.)
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
(For
Mortgages
on Chattels, see Chattel Mortgages: see Executions.)
ject to substantially the same provisions, judicial control, restrictions, and
penalties as a domestic corporation. Annual statements must he filed in
Notaries.
Notaries
are appointed by the Governor and serve for four
February, giving condition on the 31st of December preceding If a
years. They give bond in the sum of $1,000 and are required to affix the
foreign corporation fails to file with the secretary of State the statement
date
of
the
expiration
of
their commission to all certificates.
required by law within ninety days afte: the time provided for, its
right to do business in the State is thereby forfeited.
Notes and Bills of Exchange. Negotiable Instrument Act took
effect June 8, 1905.
Fraud. (See Attachments, Arrest, and Assignments.)
Garnishment. At or after the time of beginning an action to
Partnerships. Limited or special partnerships may be formed for any
recover damages founded upon contract, judgment or decree, or after the j legal purpose except banking or insurance. Such partnerships may con
Issuance of an execution and before it is returned, if the plaintiff cause to
sist of one or more persons who are general partners, and one or more who
be filed with the clerk an affidavit stating the amount of his claim oyer
contribute a specific amount of capital and shall be called special partners.
and above all offsets, that he believes that some person, naming him,
The special partners are not liable for the debts of the partnership beyond
indebted to, or has property in his possession or under his control belonging
the amount contributed by them respectively but the names of the special
to the defendant, and that such defendant has no property liable to 1 partners must not be used in connection with the business. Such a partner
execution sufficient to satisfy his debt, and that the indebtedness or
ship is formed by executing a certificate stating the name, the nature of
property so held is not by law exempt from seizure or sale upon execu
the business, the names of the general and special partners, and their place
tion, the clerk shall issue a garnishment summons.
of residence, and the amount of capital contributed by each special part
ner, and the period when the partnership is to commence and when it will
Guaranty Companies. (See Trust Companies.)
terminate. The certificate must be acknowledged and filed and recorded
in the office of the county clerk.
Holidays. January 1st, February 22d May 30th, July 4th, first
Monday in September (Labor day), December 25th. and thanksgiving
Power of Attorney. (See Deeds.)
Day. If any of these fall on Sunday the Monday following is a holiday.
Probate Law.
Husband and Wife. (See Married Women.)
Injunctions. Injunctions may be granted by a district court or by
the judge thereof at the beginning of an action or afterwards, in his dis
cretion. A bond must be given to protect the defendent against any loss
in case the injunction is wrongfully obtained. In the absence of the judge
from the county the probate judge may grant temporary injunctions.
Insolvency. (See Assignments.)
Interest. Legal rate, 6 per cent, but 10 per cent may be agreed
upon. Excess of 10 per cent is forfeited, and in addition thereto there
shall be deducted from the amount due for principal, with lawful
interest, an amount equal to the interest contracted for in excess of 10
per cent. The legal interest originally contracted for continues until the
debt is paid, and no additional interest can be charged by way o p
ty
for default. A purchaser of a negotiable note for value before maturity,
without notice, takes the note free of the usurious taint.
Judgments. Judgments of courts of record are Hens on ^e real
estate of the debtor within the county from the first day of the term at
which the judgment was rendered; but
n “d
judgments rendered nt the same term during which the action was com
menced are Mens only from the day on which the judgnient was rendered.
Judgments lose their priority over subsequent
tunl?’ cerfifi7d
tinn
isun pH nnd levied within one year after judgment. A cerunea
copy of heVudament may be filed in the office of the clerk of the district
courtof any orter* county and the Judgment wfil then
a.henreM
estate in that county, but execution can only issue from the court in
which the judgment is rendered.
Jurisdiction. (See Courts.)
License Agents of insurance companies are required to take out
licenses from the superintendent of insurance. Cities
onzed to
enact license ordinances and certain classes of .business are required to
take out a license.
Liens Mechanics material-men, and laborers are entitled to obtain
liens upon real estate for labor performed or ^^nal furnished m the
erection or repair of any building, statement, a-med in the office of
claim, for what it was rendered and by whom must be ftl«l m the office or
the clerk of the court. Livery-stable keepers, forwarding merchants ana
common carriers have liens. (See Judgments.)
Limitations of Suits. An action
the recovery,property
■old on execution or by executors, administrate , g within five vears
by the execution debtor, or the heirs, ward, or g
’ f
nronertv
after the deed is recorded. Other actions for r
- } wriBng five
within fifteen years. Ont official bonds an
years. Contracts not in writing, tnree y
on the wound of
replevin, Injuries not arising on con glanjmalicious transaction, or
iraud, two years. Action f
,
Vr,rfPitnre one vear Action
false imprisonment upon a sin1 °rv^°d
flve years. Any case founded
ferany other relief net be
_P
-tten acknowledgment or promise,
renews^the’contract^ The’ statute runs from the date of such renewal.
(See Administration.)
Protest.'?(See Notes and Bills.)
Records.
(See Deeds.)
Redemption. ’ (See Mortgages.)
Replevin. The plaintiff in an action to recover the possession of
specific personal property may claim the immediate delivery of the same
by flliDg affidavit and giving bond. Property replevined must be held by
j the officer taking it twenty-four hours, during which time the party from
! whom the property is taken may give bond to the plaintiff for not less
than double the amount of the value thereof conditioned for the return
oi the same or its value in case it shall be adjudged the plaintiff is
entitled thereto, and thereupon may have the property returned to him.
Service. All service oi process is made by the sheriff or by constables,
or by some one specially authorized-in any particular case, and must be
issued in the name of the State with the seal of the officer issuing the same
i affixed.
Suita, (tfee Actions.)
!
j
i
!
Taxes. One-half the annual levy for taxes becomes due December
20, and if not paid the whole amount becomes due and there is a penalty
of five per cent added. If the whole amount is paid there is a rebate of
5 per cent on the last half. If not paid by June 20 of the succeeding
year, another 5 per cent penalty is added. When the tax upon real
estate is delinquent, it is sold for taxes on the first Tuesday in September
following. After sold it bears interest at the rate of 15 per cent per
annum and the same rate upon subsequent taxes paid and indorsed on
the tax certificate. The tax lien attaches to real estate on November l,
in the year in which the tax is levied. After land is sold for taxes, it may
be redeemed within three years from date of sale. The interest of a
minor may be redeemed at any time within one year after he attains his
majority, and idiots and insane persons may redeem within five years after
the sale.
Trust Companies. Trust companies may be organized with a capital
of not less than $100,000, and may receive moneys in trust and execute any
trust committed to them, either by any person or by order of any court,
and may execute or guarantee any bond required by law to be given in
any proceeding in court, and act as agent for the investment of money and
j for the purpose of issuing, registering' transferring or countersigning certifi
cates of stock, bonds or other evidences of debt, act as guardian and
guarantee the fidelity and performance of duty of persons holding public
offices or private trusts, and certify and guarantee title to real estate and
sell all kinds of municipal or corporation bonds, and all kinds of nego
tiable paper, and receive deposits from banks and other trust companies
or public officers. They are required to keep on hand 25 per cent of
deposits subject to check and 10 per cent of time deposits, in the same
manner as State banks. Each director must be a stockholder in the sum
of not less than $1,000. Trust companies are under the supervision of the
bank commissioner and subject to his examination.
Married Women. The real and personal ^rty o^ed by
Trusts and Powers. All trusts concerning lands must be created
woman at the time of her marriage, and any property which comes^to ! In writing except such as arise by implication of law.
her by descent, devise, or eques^ ®perty notwithstanding her marWills. Any person of full age and sound mind and memory, having
band, remains her sole ad P ^.^P^ of her husband or iiahie for
an interest in real or personal property, may give and devise the same to
5,.
ag
j
e
m
mav
sell
and
convey
their
real
and
personal
|
any
person by last will and testament lawfully executed, subject, never
hi. debts. M"»ed women,“vith regard to the same in the
theless, to the rights of creditors. Wills must be in writing, signed at
property and enter 1
• extent as a married man may in relation
the
end
the testator, or another in his presence and by his express
same manner and to t
8Ued _n the 8ame
aB if [ direction,byand
subscribed in his presence by two or more competent
to his property, bhe
ye
Qn any trade Qr business, perform ! witnesses who saw him subscribe or heard him acknowledge it.
Ul»rWo7Be?T°ceLorher separatawconnt,and herearaingsorproceed. 1 Compliance with these requirements should appear in the witnessing
: clause. A will executed, proved, and allowed in another State, according
KKSeiXK”
to the laws of that State, relative to property in this State, may be
admitted to record in the probate court of the county in which such
Mi,.., and M.J.Og.
property .is situated, by producing an authenticated copy. Every will
SSSffiSc llealth and ufety o?persons employed and compel proper j when admitted to probate, shall be filed in the office of the probate court’
and recorded.
’
ventilation, regulate excavations air courses, etc.
BANKING AND COMMERCIAL LAWS—KENTUCKY.
1328
SYNOPSIS OF THE LAWS OF KENTUCKY
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Ernest Macpherson, Esq., Attorney at Law,
Louisville. (See Card in Attorneys' List.)
Acknowledgments. Deeds executed within the State must he
acknowledged before the clerk of a county court or a notary public.
Deeds other than those of married women may also be acknowledged
before and proven by two witnesses. Deeds executed without the State
and within the United States must be acknowledged before the clerk of a
court or his deputy, notary public, mayor of a city, secretary of State,
commissioner of deeds, or judge of a court. Deed-' executed without the
United States must be acknowledged before a foreign minister, consul,
or secretary of legation of the United States, or the secretary of foreign
affairs, or judge of a superior court of the nation where the deed shall
be executed, attested in either case by the officer’s seal of office. When
the acknowledgment is taken by an officer of this State he shall simply
certify that the deed was acknowledged before him, and when it was
done. When the acknowledgment is taken by an officer residing out of
this State it must be certified in effect as follows:
count?.:::::'.:::'.::: Hct-
I (here give name and title)................. do certify that this instrument of
.... his wife, was this day produced to me by
the parties, and acknowledged and delivered by......... and ........... his
wife, parties thereto, to be their act and deed, and the contents and
effect of the instrument being explained to the said ..............by me,
separately and apart from her "husband, she thereupon declared that
she did freely and voluntarily execute and deliver the same to be her
act and deed, and consented that the same might be recorded.
Given under my hand and seal of office this .1.... day of..........19....
writing from............ and
Actions. Actions are commenced by filing in the clerk’s office of the
proper court a petition setting forth the cause of action and causing a
summons or a warning order to be issued thereon. Non-residents and
corporations, other than banks, created by laws of this State, are required
to give security for costs.
Administration of Estates. Personal estates of deceased persons
must be administered by the executors named in the will, or if these
refuse to qualify, or none are named, then by an administrator appointed
by the county court of the county in which the decedent resided at the
time of his death. Administrators and executors are required to give
bond for the faithful performance of their duties and with surety unless
otherwise directed by the will. They are required to file an inventory of
the estate within three months and to make settlement within two years
from the date of qualification.
Affidavits. An affidavit may be read to verify a pleading, to prove
the service of a summons, notice, or other process, in an action; to obtain
a provisional remedy, an examination of a witness, a stay of proceedings
or a warning order; or, upon a motion. An affidavit may be made: 1.
In this State, before a judge of a court, or a justice of the peace, notary pub
lic, clerk of a court, or master-commissioner. 2. Out of this State, before
a commissioner appointed by the governor of this State; or before any
other person empowered by a commission directed to him by consent
of the parties or by order of the court; or before a judge of a court, a
Justice of the peace, a mayor of a city, or notary public.
Appeals. Appeals may be taken from a justice’s court to the quar
terly court when the value in controversy, exclusive of interest and costs,
exceeds $10; from the quarterly court r# the circuit court when the value
in controversy, exclusive of interest and costs, exceeds $25; from the
county court to the circuit court when the value in controversy, exclusive
of interest and costs, exceeds $50; from the circuit court to the court of
appeals when the value in controversy, exclusive of interest and costs,
amounts to $200 or more. No appeal lies to the court of appeals from
any judgment of a quarterly, city, police, fiscal or justice’s court, nor
from any judgment of the county court except in actions for the division
of land and allotment of dower.
Arbitration. All controversies which might be the subject of a
suit may be submitted to the decision of one or more arbitrators, or two
and their umpire. The submission may be in writing or by entry of
record, and the agreement of submission shall be binding on the parties
thereto, if it states the matter to be submitted and who are to be the arbi
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 be
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.
Arrest. 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 lor 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.
Assignments 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 of 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 or 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
bylaw shall not pass unless embraced in the deed. If the assignor, before
making the deed, shall have 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 of debts against the estate shall so request in writing, the
court shall remove the assignee and appoint another in his stead.
Attachments. 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 no property in State
subject to execution, or enough to satisfy plaintiff and collection will
be endangered by delay in obtaining judgment and return of nuUa
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.
Banks. 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 bank*
and trust companies doing business in this State have full power and
authority to fix the hours of opening and closing of said banks and trust
companies, and may provide that on Saturday of each week such hour
of closing be as early as twelve (12) o'clockno<in.
Chattel Mortgages and Deeds of Trnst. 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.
Contracts. 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. 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.
After 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 be
subscribed, payable at such times as board of directors may require.
Courts. General civil and criminal jurisdiction is vested in circuit
courts which hold terms in each county as provided by statute.
Days of Grace. (See Notes and Bills of 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 court, 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 by 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 otthis State before
a commissioner appointed by 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 by a commission issued to him by
consent of the parties or by order of court. If deposition is taken
upon interrogatories neither party is allowed to be present, either
in person or by 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
by him in officer’s presence, or was written by officer in presence
of witness and read to and subscribed by witness in presence of officer.
Descent and Distribution of Property. The real estate of a
person dying intestate shall descend in parcenarv 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-
BANKING AND COMMERCIAL LAWS—LOUISIANA.
ing; if either he dead, the whole estate descends to the one living; if both
be dead, then (3) to his brothers and sisters and their descendants; if
none, then (4) one moiety of the estate shall pass to the paternal and the
other to the maternal kindred, in the following order: (5) to the grand
father and grandmother, or whichever may be living; if both are dead,
then (6) to uncles and aunts and their descendants; if J?0116, then (i) to
great grandfather and great grandmother, and so on m 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 intesute, or if he or she be
dead, then to his or her kindred as if he or she had survned 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 sav bv representation, the shares of their respectn e deceased
parents ColVateralsTf 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 nartv that anv ancestor, through whom he derives his descent from
the^intestate is o^hasbeen an alien. Bastard can inherit in the descend
ing l?“y framUe mother and her W^red and can transmit inheri
tance in the ascending line only to the mother and her kindred.
Dower. (See Husband and Wife.)
Executions may issue upon judgment any time until collection
of it is barred by limitation, but no execution shall issue on any
Judgment unless ordered by the court, until after ten days from
Jrendihon.'Execution constitutes lien on property^ofy debtor from
time it reaches hands of proper officer- Executira may be replemed
for thrpp months any time before sale under same, by aeienaant
rivin* to theofficer an obligation (replevin bond) payable to plaintiff
wiyth aood scurety for the amount thereof, interest and costs. A
fudUn toEnforce a lien cannot be replevwd. No replevy allowed
upon judgment for specific property, o^rto the property or^alue.
If land sold does not I bn g
r-irrEf tn rpdppm within a
1329
Notes and Bills of Exchange. 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. Davs
of grace are abolished. The signature of any party may be made by an
agent duly authorized in writing. Every negotiable instrument is pay
able at the time fixed therein; when the day of maturity falls upon
Sunday, or a holiday, the instrument is payable on the next succeeding
bnsiness day.
Power! of Attorney. Powers of attorney to convey real or personal
property may be acknowledged, proved, and recorded in the proper office
in 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
not convey real estate by attorney.
Protest. Where any negotiable instrument has been dishonored,
it may be protested for non-acceptance or non-payment as the case mav
be; but protest is not required, except in the case of foreign bills of
exchange. It is the safer practice to protest in all cases.
Taxation. Taxes due the State by banks and trust companies are
payab'e directly into the State treasury on or before the first day of
July succeeding reports by their chief officers required to be made to
Auditor of Public Accounts, and taxes to counties, cities, towns and
districts are paid at the time fixed by law for payment of like taxes.
Wills. 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 executed according to the law of the domicile;
hut to be valid as to lands, it must be executed as required by the law
of this State. The county court has exclusive original jurisdiction
over thejprobate of wills.
SYNOPSIS OF THE LAWS OF LOUISIANA
RELATING TO
BANKING AND COMMERCIAL USAGES.
and their appendages two bridles, six c
,
.
hand; ten
not exceed $10 in value; one ■cradle, all the poultry
head of sheep,
breadstuff and animal food, to sustain the
cient provisions, including breaasiuu a
Dersonal property, wages,
family for one year; if not on
n
the p
member
money or growing crop, not to exceed •
qtock if there be any
of the family; broven^rin^-llue Ind if such provender be not
such stock, not to exceed »<d) -hall not exceed such sum in value:
on hand, such otlie^ P^0EeLyexceed 550 in value; one sewing machine,
all
apparatus
not
to pictures
exceed one cooxmg^
cooking stove and appendandwashing
all family
portraits
and
tools
ages, and other cooking utensils
^ue Libraries of ministers
of a mechanic, not exceeduiK S
of lawyers; professional libraries
of the gospel;
surgeons, not exceeding $50 in
and instruments of physicians »
> there is homestead exemp
value. In addition to Pers™^^
and
tion of so much land, includmg
dKin value §1,000.
This
nances owned by debtor as shaB n t ,iabilities which existed prior
™,”r°pVeh«» otX Ud. « th. erection of the improvement.
The ...day of JannarMhe
uayi, me
u«. u*
■ states or by the governor or tms stare,
by the president of the UnitedI Stat , 0 d°ylare(fholiday8> and shall be
as days of fasting and thank/f?'1”5’davg named as holidays shall occnr
Husband and Wife. By ana , . h colnmon law of coverture
following important changes'were m
Marriage gives to the husband
which theretofore prevailed in Kent
y.
t£e wife's property. She
during the life ot the wife no mtere
]f d her property, except
has full power to contract and to bind^herseii ai u defa^lt Hmi-’doing of
that she can not bind herselfto ans
rf^r lhat pnrp06e by mortgage,
another, except as to ProP®\!y 8F, aL DroPerty as if unmarried, but may
She may sell and dispose ol P®J®°’
V nJband unites in the contract, or
not sell or convey real ^tate uniess her^isband unn^f
s f
conveyance, unless emmer1 ba ®d8®mcnt by thehusband. After the
insanity, conviction of felony, or a.Da
ghafj bave a lifeeetatein onedeath of either husband or wfe the
iv
seized in fee simple
third of all the realty of wh ch the deceuemw
forfeited or relinduring the coverture unless such g
personalty of the decedent
quished. Such survivor has also one-Pe”o
,
left after the payment of debts Abandonm^ rj
*
either nartv or divorce works a forfeitur
eitner party, or uivu
interest is 6 per centum per annum, and
Interest. The lawfuIrate o
tre°
JjCegB of interest,
contracts for a grea er ra c
not constitute a lien on property
Judgments. A Judgment Joes
for ma]icioas prosecution, libel,
in this State. A11. JU^nerson bear interest from their dates. (See
slander, or injury to the person,
Executions and Limitations.)
periods within which actions
Limitations. The following aretne*p
frQm
Qf the
must be brought, the time co . tion“torecover real property; actions
cause of action. Fifteen year8- Ac , except negotiable instruments,
upon judgments and JrltIe“. ®°nfttentees against junior patentees, who
Seven years: Actions by »enioi pa
pjvk yearg: Actions upon verbal
have held PO8f,e88i12’1w?itvrreatedby statute; actions for trespass to real
contracts; upon a Ability crew*
withholdint; game; for the specific
or personal property or for dam fe
negotiable instruments;
recovery of personal property, ^uons^p
actions upon accounts betw
Actions upon merchants’ accounts for
SJds s°oridmlBSons for injury to person or character and for breach of
promise of marriage.
Prepared and Revised by Messrs. Richardson & Soul£, Attorneys at
Law, New Orleans. (See Card in Attorneys' List.)
Accounts. (See Acknowledgments.)
Acknowledgments 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 over fourteen
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 in 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.]
Actions. 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.
Administration of Estates by executors, administrators, or tutors
who are ex-officio administrators — also by dative executors — where
there is no heir present or agent of heir, public administrator takes
charge. Anon-resident executor of a will must in all cases give bond;
a resident does not unless required by creditors. Administrators and
executors 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.)
Aliens. There is no law excluding them from buying or holding
lands. They are only excluded from voting.
Arbitration. Agreements to submltto 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 may be made on affidavit that the debt is really dne,
and that petitioner verily believes that debtor is about to remove from
the State permanently, without leaving in it sufficient property to satisfy
liis 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 nis 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.
Attachment. Writs of attachment issue on application of creditor
1
1330
BANKING AND COMMERCIAL LAWS—LOUISIANA.
under oath, when the debtor resides ont of the State; when he con
days during the whole year for granting interlocutory orders, issuing writs,
ceals himself to avoid being cited; when he has mortgaged, assigned or
trials of rules to quash same, trying proceedings instituted, or on appeal
disposed of, or is about to mortgage, assign, or dispose of his property,
therein by a landlord for the possession of leased property, partition
rights, or credits, or some part thereof, with intent to defraud his
proceedings, and for such special probate and insolvency business, as the
creditors or give an unfair preference to some of them; and when he has j court en bance may by rule determine. On all amounts up to $2,000,
converted, or is about to convert, his property into money or evidences } inclusive, an appeal may be taken to the court of appeals, from the
of debt with intent to place it beyond the reach of his creditors, or,
city and district courts respectively, and on all amounts over $2,000,
if debt not due, is about to remove his property out of the State.
to the State supreme court. An appeal lies on both law and facts.
Creditor must furnish bond equal to the amount claimed to be due,
Appeals from the city courts shall be tried de novo.
with at least one solvent surety, residing within the jurisdiction of
Days of Grace. Abolished.
the court, conditioned for payment to any party injured by issuance
Depositions. To take testimony of witness residing out of parish
of writ ot all damages sustained by him in case it is decided that the
or State it is necessary to file motion duly sworn to showing non-resi
attachment was wrongfully obtained. (Act No. 7,1888.) Garnishment
dence and materiality of evidence. Written interrogatories are prepared
may be had as an accessory either to a writ of attachment or fieri facia*.
and served on opposite party, or his counsel, who has three days in which
Banks. Banking corporations organized under banking laws adopted
to cross. Commission then issues, directed to some proper officer, with
in 1855, amended in 1888, in 1892, and in 1902. Savings, deposit, and trust
interrogatories and cross interrogatories annexed, who must cause witness
companies provided for by Act 150 of year 1888, amended by Act 95 of
to appear before him to answer under oath the direct and the cross
1892, which is now amended by Act 189 of 1902. The number of
interrogatories.
He should reduce answer to writing, read same to
persons organizing must exceed five. No special acts of incorporation
witness and cause witness to sign same. The officer then prepares a
can be passed. By Act 189 of 1902, the general banking act of 1855
process
verbal
of
the
whole, attaches it to the commission, interrogatories,
and the amendary acts of 1888 and of 1892 are amended as follows: 1.
etc., and should return same to the court issuing the commission within
Period of time must be fixed in act not to exceed ninety-nine years.
the
time
fixed
therein
for taking the deposition. The deposition of a
2. Banks can not hold real estate for longer time than five years, except
fugitive from justice is not admissible in evidence.
such as necessary for the transaction of their business, or except that
held as agent or trustee. 8. All managers and directors shall be citi
Descent. If one dies leaving no descendants, but a father and
mother and a brother and sister, or descendants of these last, the
zens of Louisiana. 4. Safe deposits and trust banks without power
to issue bank notes, may be organized under this law with a capital of
succession is divided into two equal parts, one goes to father and
mother, the other to brothers and sisters or their descendants. If
$50,000 or more, of which capital at least $10,000 shall be paid up before
either father or mother of deceased dies before him, the portion which
commencing bnsiness. In incorporated towns with less than 20,000 in
would have been inherited by such deceased parent goes to the
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,
brothers and sisters of the deceased, or their descendants. If deceased
trustee, assignee or syndic, and execute trusts of every description.
left neither descendants nor brothers nor sisters, nor descendants
from them, nor father nor mother, but only other ascendants, they
Money or other valuables deposited by married women or minors may
inherit to the exclusion of all collaterals. If ascendants in paternal
be drawn out without the authority of their husbands or tutors.
Under Act 45 of 1902, banks organized to do a savings, safe deposit
and maternal lines are all of the same degree, the estate is divided into
and trust banking business must be composed of more than five persons,
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
may be organized for not longer than ninety-nine years, may not hold real
ascendant in the two lines, such ascendant takes the entire succession.
estate for longer period than ten years, except such as is held as agent or
If one dies leaving no descendants, and his father and mother survive, his
trustee, or necessary for transaction of their business; mav accept and exe
brothers and sisters, or their descendants, take half of his estate. If the
cute trusts or agencies of all descriptions, mav be appointed by any per
son or by court executor, administrator, syndic, receiver, curator, tutor,
father or mother only survive, brothers and sisters, or their descend
trustee or assignee. Capital stock considered as security for faithful per
ants, take three-fourths. If one dies leaving no descendants nor father
formance of duty, though court may require other security, and may re
nor mother, his brothers and sisters, or their descendants, take all the
quire the State Examiner of Banks to investigate the affairs and manage
estate. The partition of the half, the three-fourths, or the whole of a
ment of the bank. Such banks can not issue notes and must have a
succession falling to brothers and sisters as above set forth, is made
equal if they are of the same marriage, if of different marriages the suc
capital not less than $100,000, which must be paid up in cash. (See also
cession is equally divided between the paternal and maternal lines of the
Act 179 of 1902, and amendment thereof, Act 140 of 1906.)
deceased. If deceased died without descendants, leaving neither brothers
Chattel Mortgages not legal in this State. (See Mortgages.)
nor sisters, nor descendants from them, nor mother nor father, nor ascend
Collaterals must be delivered to be effectual. Bills of Lading
ants in the paternal or maternal lines, his succession passes to his other
negotiable to some extent. (See 42 An. 705.)
collateral relations, the one nearest in degree excluding the others. When
Conveyances. All agreements affecting real property must be in writ
the deceased has left neither lawful descendants nor lawful ascendants,
ing, and transfers and mortgages, etc., must be recorded in the place where
nor collateral relations, the law calls to his inheritance either the surviv
the property is situated to affect the rights of third persons. Deeds are made
ing husband or wife, or his or her natural children, or the State. If
under private signature or by act passed before a notary public in the
natural mother left no lawful children or descendants, her natural children,
acknowledged by her, inherit to the exclusion of her father and mother
presence of two witnesses. Both vendor and vendee sign, though signature
and other ascendants or collaterals of lawful kindred. Natural children
of vendee is not essential, as any act of acceptance will answer. The
inherit from their natural father, who has acknowledged them, when he
notary preserves the originals of deeds passed before him and certified
copies given by him are received as evidence in the courts. Every notarial
has left no descendants nor ascendants, nor collateral relations, nor sur
deed should contain (1) date of act and place where it was passed, (2)
viving wife, and to the exclusion only of the State. Donations inter vivos
names and surnames and qualities of contracting parties, (3) description of
or mortis causa cannot exceed two-thirds of the property of the disposer,
the property, etc., (4) price of transfer and terms and conditions. (5) The
if he leave at his decease a legitimate child, one-half if he leaves two chil
marital status of all parties must be given. When a married woman ex
dren, and one-third if he leaves three or more. An inheritance tax is
ecutes a deed she must be authorized by her husband.
levied upon all inheritances, legacies and donations, provided no direct
inheritance or donation to an ascendant or descendant below $10,COO
Corporations. Any number of persons, exceeding six, may form
shall be taxed. Tax is 2 per cent on direct inheritances and donations
themselves into corporations for literary, scientific, religious, and charit
to ascendants or descendants and 5 per cent for collateral inheritances
able purposes; for works of public immovement, and generally all works
and
donations to collaterals or strangers. Bequests to educational, reli
of public utility and advantage; and-any number ol persons, not less than
gious or charitable institutions are exempt.
Inheritance tax not due
three, may form themselves into a corporation for the purpose of carrying
when
property inherited, bequeathed or donated shall have borne its
on mechanical, mining, or manufacturing business, except distilling
just proportion of taxes prior to time of such donation, bequest, or
or manufacturing intoxicating liquors, with a capital not less than
inheritance.
$5,000 or more than $1,000,000; Any number of persons, not lees
Divorce. (See Married Women.) Can not get absolute divorce
than three, may form themselves into a corporation on complying
except for adultery, or in cases where the husband or wife may have been
with the general corporation laws, for the purpose of carrying on any
sentenced to an infamous punishment. Divorce may be obtained after
lawful business or enterprise not otherwise specially provided for,
one year by party who obtains a judgment ol separation from bed and
except stock-jobbing. The legislature can not pass a special act confer
board, and after two years by party against whom such judgment is
ring corporate powers. Corporation committing a trespass or damage
rendered, provided there has been no reconciliation between the parties.
may be sued at place where it occurred. [Act 22 of 1894.1 All corpora
(See Separation from Fed and Board.) Statistics relative to divorces
tions hereafter organized must have their charters, etc., recorded in the
must be flled]annually with Secretary of StatejBoard of Health.
office of the secretary of state. [Act 59 of 1898.1 (See Act 154 of 1902 for
formation of corporations for works of public improvement.) Act 120 of
Dower. (See Married Women.)
1902 provides for organization, etc., of local and foreign building and
Execution. Property taken under a writ of fieri facias must be
loan or homestead associations. Three or more persons may form a cor
advertised and appraised, and can not be sold for less than two-thirds of
poration to carry on any business specified in charter that would be
the
appraised value, until it has been re-advertised. Advertisements of
lawful for any individual to carry on. May carry on any named busi
movables three times in ten days—ol real estate once a week for thirty
ness or different branches of business, whether related or not. Must have
days.
If two-thirds of appraised value is not bid, property must be re
capital of not less than $3,000. [Act 78 of 1904.] No corporation can
advertised for fifteen days, and sold on a credit for twelve months for
declare dividends out of its capital stock, under penalty of forfeiture of
whatever it will bring. There is no redemption of property sold under
its charter.
execution or mortgage. No stay of execution is given except on appeal,
Foreign Corporations may be licensed and taxed by a mode differ
and execution may issue at any time after the delay for appealing susent from that provided for home corporations. No domestic or for
pensively has expired. Act 113 of 1906 authorizes'sheriffs and constables
eign corporations shall do any business in this State without having one
to put purchaser of seized property In possession.
or more known places of business and an authorized agent or agents in the
State upon whom process may be served. All corporations (except
Exemptions. To head of family, real estate if owned and occupied
mercantile corporations) domiciled out of the State and doing business
as a residence, together with certain furniture, stock, implements, pro
in the State in default of filing with the secretary of state a declaration
visions, etc.; the property not to exceed $2,000, and provided the per
of the place of its locality or domicile together with the name of its agent
son claiming the benefit of the homestead execute a written declaration
in the State'upon whom service of process may be made, may be sued upon
of homestead (Acts 1880, No. 114), and no exemption if wife has
any cause of action in any parish where the right of action arises.
separate property worth over $2,000. No registry required in parishes
Foreign corporations must file in office of secretary of state a written
other than Orleans. (Operative Jan. 1,1899.) Widow or minor children
declaration setting forth and containing the place or locality of its
surviving is entitled to $1,000 out of deceased husband’s estate, if in
domicile, the places in the State where it is doing business, and the
necessitous circumstances, by preference over even a first-mortgage
name of its agent or other officer in this State upon whom process may
creditor. Sheriff or constable can not seize linen and clothes of deotor
be served. [Act 54 of 1904.]
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
Courts. Terms and Jurisdiction. In parishes other than Orleans:
necessary for the exercise of his or her calling, trade, or profession, by
Justices’ courts — exclusive jurisdiction up to $50, and, concurrent
which he makes a living, the right of personal servitude, of use and habi
with the district courts, between $50 and $100. 2. District courts —
tation, of usufruct to the estate of a minor child, the income of total
concurrent with justices’ courts, between $50 and $100; exclusive for
property,
money due for salary of an officer, wages or recompense for
all civil matters over $100. and in all probate matters and appellate juris
personal service (laborers’ wages) cooking stove, plates, etc., family
diction in all civil matters in justices’ courts. In Orleans Parish: 1. City
portraits,
musical instruments played on by family. (Acts 1876, No. 79.)
courts — exclusive jurisdiction up to $100. 2. Civil district courts —
exclusive over $100. Justices and city courts open at all times. In
Fraud vitiates all contracts. Action barred by one year limitation
parishes other than Orleans, district courts shall hold continuous sessions
to annul sale on account of fraud.
during ten months of the year. In parish of Orleans, civil district court
sits from October 15th to end of June, but shall remain open on all legal
Garnishment. Wages earned out of this State and payable out of
BANKING AND COMMERCIAL LAWS—LOUISIANA.
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 in 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 face
to be a foreign bill, protest thereof in case of 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 succeeding
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.
If the day or days next succeeding the protest for non-acceptance or
non-payment shall be days of public rest or legal holidays or legal
half 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.] 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.)
this State, shall he exempt from attachment of garnishment in all cases
where cause of action arose out of this State, and it shall be the duty of
garnishees in such cases to plead such exemption unless the defendant
is actually served with process. [A.ct 165 of 1904.] {Sec Attachment.)
Husband and Wife. (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. If paid, it may be sued for and recovered within two
years.
Judgments recorded in the office of the parish recorder become
mortgages from date of record upon all real estate of the debtor, and
may be thus recorded in any parish where debtor owns leal estate.
They are valid for ten years, when they must be renewed.
Liens or Privileges. The following have special privileges, viz :
1. Lessor’s privilege. 2. Privilege of the creditor on the thing 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 upon immovables are as follows, viz .
1. The vendor on the estate by him sold, for the payment of the pucei or
so much of it as is unpaid, whether it was told on or'without a c
,
2. Architects, undertakers, bricklayers, painters, master builders, cotractors. sub-contractors, journeymen, laborers, cartmen, and ot“”
men employed in constructing, rebuilding, or rcPa,J11lS !10’^£®■b
• £ ’
or making other works. 3. Those who have supplied the owner or other
person employed by the owner, his agent or sub-contractor, with materi
of any kind for the construction or repair of an cdifice or other wor^
when such materials have been used in the erection or repair of «“cli houses
or other works. [Art. 3252.] Privilege on crops to beni^0I?teadte(^8°!
1890). The vendor of an agricultural product of the United States has a
five days privilege for unpaid purchase price in preference
Limitations to Suits. Prescription—Accounts stated and acknowl
edged in writing are prescribed only by ten years. [Act
1
actions one year: Action for torts of all kinds, for injuryto or non
delivery of merchandise shipped on vessels; for fees of
or constable; for innkeepers’ accounts: for accounts of retailers of liq
,
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 ol ■overseers clerks^or tuition
bv auarter or year; for fees of physicians, apothecaries, attorneys, sheriffs,
clerls and recorders- on open accounts of merchants, whether wholesale
orretail^and^others8’ PourPyears : Actions by minors against
counting four years from majority. Five years . Action on bills or
exchange or promissory notes, counting from maturity,, a
...
?
of contracts or wills; for reci sion of PartltionB , to set aside public a d
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 .^^r-vh-al Prescrintkm
years, and are then good for ten years from date of revival. Preacnj^ion
does not run against minors or persons under interdiction. Hus
band and wife can not prescribe against each other.
Limited Partnership.
(See Partnership.)
Married Women. Separate property ol wife may be controlled by
and all property acquired by either busbandorwifeafter marriageco
stitute part of community, unless bongwith the ’ep^ate^means of
either and as a separate acquisition. A married woman can not sue
without the concurrence of her husband
authorization of the
court, and she can not bind herse f or her P^.^have m claim
has no dower in her husband s real estate. T
nf third oa-ties unless
upon the property of the husband to the Pr«Judl<*?parties unless
recorded. Where one of the spouses is
f®^the °/hh“’e
be witness for the other in a matter connected with tnai transaction.
Alter dissolution of marriage by death or. ^^^^“^J^acquired
to one-half of all property remaining after
«of debu, acquired
ttsOT
dtoeased^spouse^ Wife cannot
be a witness to husband’s will.
Morteaees can be foreclosed at any time after maturity of the debt,
S 'import^a confession o*f
mortga“esSare unknowE to the Sws of Louisiana. There is no redemp-
lease, together with the improvements, etc. (Act ,1 ol l JUS.)
abolished. IMtouments
P».
ergon when8uch fact
known to
order of a fictitious or n
s name of pavee does not purport to
the one making it so paya
,
°
or
indorsement is in blank.
win?nmthp^aV« a (Hscrenancy between" the words and the figures of an
When there is a dis«ep
y
the words jg the sum payable,
instrument, the sum
. ,
instrument containing words, “I
I wo or more person
8:
;md severally liable thereon.
Pre
promise to pay.
a . J ne^,e88ary to bind party primarily liable,
“enecfessa?yyto charge drawer or7 indorser.
Notice of dishonor
but is necessary io vuii
indorser when instrument has been
must be given to <1 a
or non-payment, otherwise they are
dishonored by non-i fPp_c|,ange does not operate an assignment
discharged. A Bill of ?^b»nf;ailable for payment thereof, and
of funds in hands
h accepts same. Holder may require acceptance
drawee is not liable 111 he accepm
&g d, , £ d
to be written on bill, and
, bill and an uncondi.
An a.ccePkince written °tn0‘St a bill before it is drawn, binds the
tional written P
f Dnrcbager for value on faith thereof. Drawee
ha?twenty-four hours to decide whether he will accept or not. A drawee
who Soys a bill presented to him for acceptance, or who fails to return
1331
Partnership, Limited and Special. Stipulations that one shall
participate in the profits and shall not contribute to losses is void, both
as regards partners and third persons. Partnerships are divided as
to their object into commercial and ordinary partnerships. Commercial
partnerships are such as are formed: 1. For the purchase of any per
sonal property, and the sale thereof either in the same state or changed
by manufacture. 2. For buying or selling any personal property what
ever, as factors or brokers. 3. For carrying personal property for hire,
in 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
mendam.
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 of receiving a share in the profits, in the pro
portion determined by the contract, and of being liable to losses and expenses to the amount furnished and no more. Partner in commendam
cannot bind other partners by his act. Partnership in commendam must
be made in writing; must express amount furnished or agreed to be fur
nished; the proportion 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
are established the contract must be recorded in parish were branches are
located. If 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 of
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.
i
.
i
i
I
,
'
i
1
Powers of Attorney. May be written or oral. May be either
: general for all affairs or special for one affair only. One conceived in
! general terms confers only power of administration; to sell mortgage
1 or do any other act of ownership, the'power must be express and special.
j
i
i
|
:
i
j
i
;
J
!
;
Probate Law. There is ho 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
in the state; or in the parish in which it appears from the inventory that
his principal property was situated, if he left property in several parishes;
in 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 2J4
per cent on the inventory as commissions. Attorneys at law are appointed
to represent absent heirs. Properties acquired during marriage are presumed to be community property, and surviving spouse is owner of onehalf. When either husband dr 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 asufruct during his or
her natural life. (See Successions.)
Protest. (See Negotiable Instruments.)
Separation from Bed and Board. May be claimed reciprocally
for: 1. Adultery. 2. When spouse condemned to infamous punishment.
3. Habitual intemperance, excesses, cruel treatment, or outrages, when
such renders living together insupportable. 4. Public defamation of
one spouse by the other. 5. Abandonment. 6. Attempt of one spouse
against life of 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.
Wills. There are four different kinds of wills, viz.: The olographic,
nuncupative by public act, nuncupative by private act, and mystic (or
sealed) 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 of
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.
1332
BANKING AND COMMERCIAL LAWS—MAINE
SYNOPSIS OF THE LAWS OF MAINE
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and revised by Messrs. Verrill, Hale and Booth, Attorneys
at Law, Portland. (See Card in Attorneys’ List.}
Acknowledgments. (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 clerk of court and subpoena issued by him, or may be
inserted in writ of attachment and served bj copy of bill and writ. On
motion non-resident plaintiffs required to give security for costs.
Administration of Estate. (See Estates Of 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.
Allens. Aliens may hold and convey reai estate and personal property.
Wills of aliens may be 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 of 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 per
sonal action may be submitted, by the parties, to referees for arbitration.
Majority of referees may make report to Supreme or Superior Courts.
Arrest. (See Executions.) In actions ex delicto, on mesne process
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 of 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 tor 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 of wages must be recorded in town clerk’s
office.
Attachment. All property not exempt attachable on mesne process
as of 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. 3. 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 wages, for persona] labor
of the debtor, wife or minorchild within one month, and $10 exempt in all
cases. 7. In certain cases money due on life and accident policies, and
from fraternal beneficiary associations. (See Creditors' Bills.)
Banks. 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
of state bank examiner. General statutes relating to discount banking
repealed by Laws 1903, c. 166. Foreign banking associations having a
branch here pay a tax of three-fourlhs 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 of depositors, under statute regu
lations restricting investments, requiring reports under oath and exami
nations by bank examiner. Must not pay over 2% per cent dividend semi
annually. Franchise tax is five-eighths per cent, regulated to favor home
investments. Use of the words ‘‘bank.” “trust company,” and similar
words in designating a business, forbidden, except by corporations
organized as above or under laws of United States.
Collaterals. (See Mortgages.)
Conditional Sales, Consignments. No agreement that personal
property bargained and delivered to another shall remain the property
of 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 in the
office of the clerk of the town in which the purchaser resides at the time
of the purchase. This does not apply to goods consigned for sale.
Conveyances. (See Deeds.)
Corporations. 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 state 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 bikers 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 must 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
ana 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 of $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 stockholders must be held within the
State. Clerk must be resident and keep stockholders’ records in 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 and 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 of certificate, transfers title against all parties.
Foreign corporations have practically same rights as domestic, but
are required to file copy of charter with Secretary of State, on whom
service of legal processes may be made, and are also required under
severe penalties to file certificate showing among other things the
names of officers, amount of capital stock authorized, amount
issued and amount paid in; also must file certificate showing any
change in above particulars. Corporations may dispose of their
franchises on majority vote of the stockholders; may sue and be
sued, and have generally the powers of individuals.
Courts. Terms ana 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.
Creditors’ Bills. 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.
Days of Grace. (See Negotiable Instruments.)
Deeds. 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 having a seal, or woman qualified to take acknowledgments; out
side 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 in a foreign country before a notary public, or a consul or minister of
the United States, but if magistrate acting outside of State has no official
seal, his authority and the genuineness of his signature must be authen
ticated by the clerk of a court of record in county where he resides.
Unacknowledged deeds cannot be recorded. No special form of acknowl
edgment 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.
Depositions. 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, ref
erees and county commissioners, and in cases of contested senatorial or
representative elections. Depositions or affidavits may also be taken in
applications for pensions, bounty, or arrears of pay under any law of the
United States. Courts may issue commissions to take depositions out of
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 of De
ceased Persons.)
Divorce. 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
year 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 one-third of her real estate, except wild
lands, and to such part of her personal property as the court may order.
Dower. 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 refusing to join in
other’s conveyance may be barred of inheritance upon application to
supreme judicial court and decree after hearing. (See Estates of Deceased.
Persons.)
Estates of Deceased Persons. Eighteen months after notice of
appointment allowed creditors to present claims an<L*uit 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 shall 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-
BANKING AND COMMERCIAL LAWS—MAINE.
ower free from the payment of debts. 2. The remainder of which he
dies seized, and if no widower, or widow, the whole, together with all wild
lands, shall descend in equal shares to his children, ana 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 representation. 3. If no such issue, it descends to his father and mother in
equal shares. 4. If no such issue, or father, it descends one-half to 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. If 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 descends to his next of kin in equal degree; when they claim through different 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 equal shares if all are of the same degree of kindred; otherwise, accord
ing to the right of representation. 8. If the intestate leaves no widower
widow or kindred, It escheats to the State. An illegitimate child Is an
heir of its parents who intermarry; also of its mother, also of its father,
w ho adopts it or acknowledges it before a magistrate; and in any case
where the child is treated as an heir it inherits from the lineal and
collateral kindred of the parent, and they from it. {See Wills.)
Executions issue after twenty-four hours from rendition of judg
ment, returnable in three months, renewable within ten years after. No
stay except by order of court for cause and one year against absent
defendants unless bond filed; levied on real estate by appraisal and
extent, also on real estate and interests in the same ana franchises and
personal property by sale; money and, by consent, circulating notes
applied directly. Real estate sold on execution may be redeemed in one
year. Attaching creditor may within forty-eight nours after notice re
deem personal property of debtor which is subject to mortgage pledge, or
lien; may also redeem real estate subject to mortgage or other lien,
Special provisions for redemption of certain other special classes of prop
erty, such as buildings on leased lands, franchises, etc.
Exemptions from Attachment and Execution.
Home
steads, not exceeding in value $500, when duly registered; debt
or’s apparel, necessary furniture for family, not exceeding in value
$100; bed and bedding for each two persons; family portraits,
bibles, school books in 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 of lumber,
wood, or bark; produce of (arms till harvested; barrel of flour, thirty
bushels of corn and grain, potatoes for family, one-half acre of flax ana
manufactures therefrom for family; tools of trade, and materials and
stock, $50; sew ing machine, $100; pair working cattle, or pair mules, or
one or two horses, $300; hay to keep them; harness for each horse and mules
$20; horse sled or ox sled, $20; domestic fowl, $50; two swine, one cow
and one heifer, 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 ifhe
has more than is exempt. Life and accident policies are exempt from cred
itors, except any excess of $150 per year premium paid within two years,
except suits for necessaries. {See Attachment.)
Foreign Judgment. Action of debt lies on a foreign judgment and
record of it is prima facie evidence of indebtedness. Is conclusive except
for fraud when given by court having jurisdiction of parties and subject
matter.
Fraud. Usual common law rules as to what constitutes fraud, fraudu
lent representations, etc.; also statutory penalties for fr^^J*eats, etc.
Court of Equity has power to afford relief. Statutory provnsions to prevent sale in bulk of part or whole of stock of merchanili&e
creditors.
Frauds and Perjuries. No action shall be maintained upon any
contract to charge an executor or administrator upon any spec al
promise to answer damages out of his own estate, nor_
dpfaBuit o'r
person upon any special promise to answer for the
.
’
misdoings of another: nor to charge any person upon ar
made in consideration of marriage nor to charge
pe
1 (
any contract for the sale of lands, tenements, o
anv a<4eeof any interest therein ; nor to charge any person p
makintr
ment that is not to be performed within one year from the making
thereof; nor to charge any person upon any contrac
p
after discharge therefrom under bankrupt laws of th
.
rontr„ct
assignment or insolvent laws of this State; un ess t
P.
- • .
or agreement, or some memorandum thereof is in
?
.
by tire party to lie charged, or bis agent. No a
tained on a minor’s contract unless ratified by b’m
necessaries or real
ing twenty-one years of age, except the contract e
contract for
estate where he has received title and obtained b
• ,
purchaser
sale of goods, etc., of $30 or more
value is valid unless purchaser
accepts or receives a portion of the goods or give
,.im”is made and
bargain, or in part payment thereof, or some memorandum is maae ana
signed by party charged or his agent.
Garnishment. (See Attachment.)
.
Husband and Wife. Each may hold and deal with
riage, nor afterward in — --------Interest Six ner cent or any other rate agreed upon in writing; judg
ments same rate-account® aud debts not on time bear interest from
ments, same rate, accounts
not continue after maturity.
Sso provided^ nor after judgment in^anjr case;
laws^ On
months, and 15 per cent per annum therea
■
_
’
.
h,p-eneral order at end of term on all cases
Judgments. At lav , y g- tayej by proceedings for new trial,
where verdict or defau , . .,iaintiff- in equity, only by decree signed
byCjusticeNo lien%xcept by virtue’of attachment on mesne process
(q. v.) and where specially provided by law.
/wxf..statute Provisions, for Mechanics. Material,
Men^Hotfl and Boarding-House Keepers. Stable A etpert. Agister, etc.)
_ r ini,,... Six vears: debt on unsealed contract or
liab “t teicept judgments)’; actions upon judgments out of State of
court not offl; fo‘r arrears of rent; of account, assumpsit, or case on
J
'
j
:
1
j
J
;
j
i
,
1333
contract 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 aud 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.
Married Women have same rights and liabilities as to property con
tracts and all suits as men. Wife’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 of Deceased Persons.)
Mortgages. Of real estate: executed and acknowledged as deeds
and must be 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 authorize a mortgage by a person in possession
of an estate subject to a contingent remainder, executory devise,
or power of appointment, and such mortgage is binding on all
parties. Chattel mortgages to be good against third parties must
be recorded in 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, ana cost of procuring loan. Agree
ments, whether in form of note, lease, conditional sale, etc., orotherwise,
that 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
of record, or, if out of State, 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
first 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 suc
cessive weeks in 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. Days or grace abolished except, as to
eight drafts. Falling due on Sunday or bank holiday payable and
presentable for payment on secular or business day next succeeding.
If holiday falls 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 in writing and signed. Recovery from indorser without suing
maker. Rate of damages on protested bills of $100 or more payable in
this 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
had. Legal holidays are January 1; February 22; April 19; May 30; July 4;
first Monday in September; Thanksgiving; Chrisimas, and 'Arbor Day.
If note reads“I promise to pay” ail signers are jointly and severally
liable.
Partnership. 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 of Deceased Persons.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken 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.
Taxes 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. Landon 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 exceed $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. Inheritance tax ranging from 1 to 7 per cent, according
to degree of relationship and amount of bequest. $500 exempt in all
cases, and $10,000 exempt In case of certain near relatives. Special ex
ceptions and exemptions from assessment, and special provisions for
taxing personal property situated here but owned out of the State. (See
Banks.)
Wages. (See Assignments, Attachment.)
Warehouse Receipts. Holder deemed true owner so far as to givevalidity to contract for sale of merchandise covered, or to protect one act
ing on faith of such ownership; but one taking from agent as security fo
antecedent debt gets no greater right than agent. Title to property passe
1334
BANKING AND COMMERCIAL LAWS —MARYLAND.
by endorsement, but not in blank, to purchaser or pledgee in good faith. : or some one in his behalf shall give bond in double the amount of the
Property in warehouse may be attached as that of person named in
debt, with sureties to be approved by the clerk, and make affidavit be-'
receipt, or of last endorsee shown by books of warehouseman. Common
fore the clerk of the court where the suit is brought that the defendant
law rules prevail generally.
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
Willi. Wills must be in writing signed by the testator, or at his re
sconded or is about to abscond from the State, or that the defendant has
quest by some person in his presence, and subscribed in his presence by
assigned, disposed of, or concealed, or is about to assign, dispose of, or
three witnesses in presence of each other, may be made by any person of
conceal, his property, or some portion thereof, with intent to defraud his
age and of sound mind, and may dispose of all property. Wills execu
creditors, or that the defendant fraudulently contracted the debt or
ted in another State or country according to laws thereof, may he proved
incurred the obligation; or that the defendant has removed or is about to
and allowed in this State in the county where the testator had his residence
remove his property, or some portion thereof, out of this State, with
at time of decease; if proved without this State (at his domicile), may be
intent to defraud creditors; and the attachment may be maintained,
allowed in any county here where he has property. Widow or widower
although the debt or obligation upon which the action is brought may
may within six months waive provision in will of deceased husband or
not have matured, but the date of the maturity of the debt or obligation
wife and claim same share in personal property as would have had in case
must be set forth in the affidavit [Act 1894, Ch. 648]. A claimant may
deceased died intestate.
have the attached property released by filing a bond in double the amount
Nuncupative will must be reduced to writing within six days, or
of
the appraisement. Any kind of property or credits belonging to the
proved by testimony within six months, from time words spoken. No
defendant, in the plaintiff’s own hands or in the hands of any one else,
letters in such till fourteen days after decease jf testator. Not effectual
and
shares of stock in a corporation, may be attached. Credits not due
to dispose of more than $100.00 worth of property unless proved by three
may be attached, but wages, hire, or salary not due can not be attached,
witnesses who acted at testator’s request.
• 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
debtors in cases arising from contracts when the damages are
SYNOPSIS OF THE LAWS OF MARYLAND such
unliquidated, and in actions for wrongs independent of contract, but in
RELATING TO
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
BANKING AND COMMERCIAL USAGES.
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
Prepared and Revised by Slingluff & Slingluff, Attorneys at Law,
the bond required in attachments for fraud. [Code 1904, Art. 9.] All
papers in attachment proceedings can now be amended, as in any other
Baltimore. (See Card in Attorneys' List.)
actions at law. [Act 1898, Ch. 44.1
Acknowledgments of conveyances of any interest in real or lease
Banks. The Act of 1898, Chap. 277, made important changes in the
hold property for above seven years, may be made within the State, and
banking laws of this State. The law now provides that all banks incor
in the county or city in which the land, or any part of it, lies, before a
porated under the laws of Maryland, if located in Baltimore city, shall
notary public, justice of the peace, a judge of the orphans’ court, a judge
have a capital stock of not less than $300,000, and, if anywhere else in the
of the circuit court of any county, or a judge of the supreme bench of
State, of not less than $50,000. It further provides: 1. Stockholders must
Baltimore city. If within the State, but out of the county in which the
own stock four months before they can vote it for any purpose ; 2. Direc
estate conveyed lies, they may be made before a judge of any circuit
tors
must be stockholders and citizens of the State; 3. No one can be
court for the circuit where the grantor may be, or before any judge of the
director in two banks at the same time; 4. Statements must be made
orphans’ court for the city or county in which the grantor may be, notary
annually
by the directors to the stockholders : 5. Every banking nssoeiapublic, or a justice of the peace: the official character of the justice
must be certified by the clerk of the circuit court of the county, or • tion, authorized by its charter to do a banking business in this State,
shall
make
to the treasurer oi the State of Maryland no less than five
superior court of Baltimore city, under his official seal, or any judge of
reports during each year, to be verified by the oath or affirmation of the
the supreme bench of Baltimore city, if grantor be in Baltimore city. If
president,
cashier,
or treasurer of such association or trust company, and
without the State, they may be made before a notary public, a judge of
attested with the signatures of at least three of the directors thereof,
any court of the United States, or of any State or Territory court having
showing
in
detail,
and under appropriate heads, the resources and liabili
a seal, or a commissioner of deeds for this State. The seal oi the officer or
ties of such association at the close of business on any past day specified
court to be affixed to the certificate of acknowledgment in all cases. If
by
the
treasurer
of
the State; and a summary of such report shall be pub
acknowledged without the United States, the acknowledgment may
lished in a newspaper published in the city or county where such associa
be made before any minister, consul general, vice or consular agent or
tion
in
this
State
may
be located. The treasurer shall also have the power
deputy, or a notary public, or a commissioner to take acknowledg
to call for special reports whenever he deems the same necessary; 6. The
ments for State of Maryland. Every deed conveying any interest in
issue
of
notes
is
not
to
exceed the capital stock paid in, and no note of
real estate, must be signed and sealed by the grantor and attested by
less than $5 to be issued, nor of any amount intermediate between $5 and
at least one witness. A scroll seal is sufficient. No words of inherit
$10; 7. The debts are at no time to exceed the capital stock, and the direc
ance are necessary to create an estate in fee simple, and no separate
tors are liable for such excess; 8. If dividends are declared which impair
examination of a married woman is required. Defective acknowledg
the capital stock, the directors are liable ; 9. No director can be paid for
ments made valid by Acts 1908, Ch. 105 and 259.
his services: 10. A bank can hold land for its immediate accommodation
Actions. The forms of actions, which still savor of the common law
in its business, and such as may come in payment of debts due, but must
are now very simple, any plain statement of facts constituting a good
get rid of such land as it acquires for debts in three years; 11. No loans
cause of action being sufficient. Amendment is allowed at any time
must be made to the State or the United States to exceed $50,000;
before verdict. Equitable defenses are now allowed to be made in a
12. Banks must not pay out any funds or money other than the legal cur
court of law, although there are still law courts and equity courts having
rency of the United States, notes issued by the authority of their charter,
different and distinct jurisdiction. (See Suits.)
and notes issued by other banking incorporations received at their par
value by the banks so paying them out; 13. All State banks, whether
Administration of Estates. »The orphans’ court of the counties
incorporated under the provisions of this act or not, must pay annually
and the orphans’ court of Baltimore city are the courts of probate. In
to the State twenty cents on every $100 of the issue of notes then in actual
cases where decedent left a will, letters are granted to executor and execu
circulation,
which such bank may have lawfully issued, to be applied to
trix named in the will. In granting letters of administration, where de
the augmentation of the free school fund of the State. lp8S, Chap. 501,
cedent died without leaving will, letters are granted: 1. To widow or child
continues
this
act in force till January 1, 1905. There are no laws restrict
or children; 2. Grandchild; 3. Father; 4. Brothers and sisters: 5.
ing savings banks as to the class of bonds they may Invest in.
Mother; 6. Next of kin; 7. Largest Creditor applying for letters. In each
In addition to the statements to be made to the State treasurer, an
class, males are preferred to females. Bond is required with two sureties,
examiner, appointed by the treasurer of the State, shall visit each and
or one of certain local surety companies where authorized by their charter
every association doing a banking business in the State (excepting State
to act as sole surety. When testator requests in will that executor be
banks which maybe members of the Baltimore Clearing Association, and
excused from giving bond, court only requires nominal bond for amount
as such required regularly to submit to an examination by a national bank
sufficient to pay estimated debts. Six months notice to creditors must be
examiner) at least once in each year or ottener, if in his judgment it may
given by publication before estate is distributed. Personal property must
be necessary. The treasurer of the State, or such examiner, for the pur
be appraistd, accounted for and distributed through the orphans’ court of
pose of investigation, is authorized to administer oaths, and examine
the county or city in which decedent resided. All sales must be author
under oath or affirmation the owners and directors, and all officers and
ized and ratified by the orphans’ court. By Act of 1898, Ch. 846, above
employes and agents of such bank, and the examiner making such exam
provisions were made applicable to “estates of persons abseDt and unheard
ination shall reduce the result thereof ta writing; no person shall be
of for above seven years.’’ This act has been held unconstitutional. See
appointed examiner to investigate the condition of any bank who shall be
case of Savings Bank of Baltimore vs. Weeks, Court of Appeals of Mary
an officer, agent, or employe thereof. Whenever the treasurer of this State
land June 16, 1906, 103 Md. 601. Re-enacted with amendments. [Acts
shall become satisfied that any of the banking associations named have
1908, Ch. 125.]
failed to comply with the provisions of the law, he shall have the right by
Affidavits. (See Acknowledgments.) No particular form necessary
his certificate, with the approval of the Governor, to declare the charter
but whoever can take an acknowledgment can take an affidavit. Affi
of
such association, company, or corporation forfeited, and said certificate
davits always required in a mortgage as to the bona fldes of mortgage, con
shall be conclusive evidence of such forfeiture, and thereafter he shall
sideration. and the payment of tax on annual interest in certain counties.
appoint,
with the assent of the Governor, a receiver of all the assets of
(See Mortgages.)
such association. The provisions of the law as to visits by the State bank
Aliens. Aliens, not enemies, may take and hold lands, tenements,
examiner do not apply to savings banks having no capital stock, building
and hereditaments acquired by purchase, or to which they would, if citi
or homestead associations, or National banks, or to corporations author
zens, be entitled by descent, and may sell, devise, or dispose of the same
ized by their charters to transact a trust, fidelity, surety, or deposit busi
or transmit the same to their heirs as fully and effectually and in the
ness in this State; trust, fidelity, surety, or deposit companies being
same manner as if by birth they were citizens of this State.
required by the act of 1896, Chap. 160, to make certain deposits in bonds
Arbitration. Disputes between parties may be conducted by any
with the State treasurer before they can conduct business in this State.
Judge or justice of the peace mutually agreed upon. Special agreements
Collaterals. The conversion by any banker, broker, merchant,
for arbitration of such disputes to be valid. Parties may be represented
attorney, or agent of collaterals is made a misdemeanor. [See Code,
by an attorney, and award of arbitrator or arbitrators to be a judgment,
Art. 27, Sec. 93.]
and court may give judgment and issue execution on the award. Act
Contracts. The normal condition of all persons is one in which they
1904, Ch. 671. provides a means for the settlement of disputes between
are capable of making any contract. The fourth and seventeenth
employers and employees by mediation or voluntary arbitration.
Arrest- No arrest for debts in this State. In criminal cases a sen « 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
tence may be passed, Imposing a sum of money as a fine, and then in lieu
a promise to answer for the debt of another is in writing. A citizen
of payment by party, of fine imposed, he is liable to imprisonment.
can not make a contract with an alien enemy during the continuance of
Assignments. (See Insolvent Law and Deeds of Trust.)
hostilities; but aliens, not enemies, may contract and hold real prop
erty as fully as citizens. The later cases decide contracts of infants to be
Attachments for debt [See Act 1890, Chap. 549], or for unliquidated
voidable and not void; and they are capable of ratification by infants on
damages, either in contract or tort, can be obtained in all cases
arrival at age of twenty-one. The contracts of infants for necessaries
when the defendant is a non-resident or has absconded, affidavit being
are binding upon them. The contract of a lunatic is voidable and not
first made by the plaintiff to the correctness of his claim and the fact
void. The statute provides that a married woman may engage in busi
that the defendant is a non-resident or has absconded. They may be
ness, contract, sue, and be sued upon contracts and torts, as if unmarried.
also obtained in connection with an original process when the creditor
BANKING AND COMMERCIAL LAWS—MARYLAND.
[Acts 1898, Ch. 457.] All gambling contracts and contracts made on
Sunday are void.
Conveyances. 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 1904, 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 parties, is irfvalid 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. 1 endors’ 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.
Corporations are organized under the authority of the General In
corporation Law, completely revised. Act 1908, Chap. 240. Liberal pro
visions are made for general incorporation; only exception (for munici
pal purposes) is in the constitution. All corporations (under the general
lawj must pay a bonus tax of one-eighth of 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, lhe
corporation certificate must be filed 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 in this State, of 50 cents per $1,000 but no less than $25 If
capital is over $500,000 then
of one per cent on the excess to $o,TOO,000,
etc. Domestic corporations may issue all kinds of preferred and com
mon 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 in all cases involving more than $20. They hold from two
to four regular terms in each county at which they have a jury; there
are, however, intermediate terms fixed by the rules, to which process
maybe made returnable. The circuit court and circuit court ?<o. 2 of Bal
timore City have exclusive equityjurisdiction in the city. The superior
court, the court of common pleas, and Baltimore city court bayeconcurrent common law jurisdiction in cases involving more than $100. lhe
court ol 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 of $100. The common law courts nave
three terms in the year, and rule days every month in the year to which
V LU1UW
LVlAiU m_tne
a**
process may be returnable. The equity
courts liaviy
have CIA
six terms
January, March, May, July, Sepyear, beginning the first Mondays of Ja
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
of such witnesses. The commissioners are selected by the court,
must qualify before some person authorized to administer an oath in
the State where they reside. The depositions, duly certified by the c 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
taken under
the commission, and must receive reasonable notice of the time and p c .
Examination is restricted to the parties and interrogatories and crossinterrogatories annexed to the commission. Testimony of non-res dent
witnesses can also be taken upon proper notice, as provided by sec. <
Art. 35 of the Code of 1904.
Descent and Distribution of Property. As to descent, see Code
1888. Art. 46, and as to distribution, Code, Art. 93.
Divorce. Divorce comes within the jurisdiction of court of equity.
Divorces are decreed a vinculo matrimonii for the canonica
rt thorn
impediment existing previous to marriage. Divor=e®,^.^d
are decreed for vicious conduct, cruelty of treatment, a a . „ .
a’nf)in
desertion. The court has power to decree the cn«t^ of child™to
some cases decrees as to how property shall be divided, a
I
allow alimony.
Dower. The common-law right of dower exists in >’ar-v'Ian‘J- “"^ted"
tends to equitable estates. By act 1898, the husband 8. , .
‘ exactly
an estate of the husband in his wife s estates o1
devise or
equivalent to the wife’s dower in
All be con-
bequest of real or personal property to the wife or h i
.
strued to be in lieu of dower in lands or.share f perso a
for her or linn will within six 111011 ui»
.
,
. .
,
and
on the estate of the deceased husband or w fe..
Harried
the share of personal property remain undistuibed. (See Hamea
Women.} [Act 1904, Ch. 661.]
Executions may issue and Judgments ™ayf!’®
j^jt^ent
by scire facias »t any time witlnnwdve jea f thereafter levi& on
or from the expiration of any stay,^“acircuft COurts for the counties
any property ot the dtfcndant. „
f the term succeeding the
there is a stay until the first inursuay y* ■,
nhtaineri at tbp
rendition of the judgment, provided the ju g
is no stav unon
second term after the defendant is
' citv or j,y justwes’of
ludgments rendered in the courts of Baltimorecityby justices of
the peace in the city or counties but «x®c"t]®”di““y^eB^ttje* f£
Thp dpfpndant mav stav the execution by superseuing
sure ties ior
ine defendant may stay in
of judgment when recorded
in
six months. Copy of docket entries y* j s rActl890 Ch 314 1
another county makes the judgment a Hen there. 1 Act l»90, Ch. 314. I
Exemptions. No homestead law. Wearing ^PP^^s and tools
(not. kept for sale) and
p™0PnCey payable as insurance, benefit,
consists
land,
goods or bwwj w of promS'te
death are erernnt
?r relief of
In money,
the Jen.
ofKcb
me'raSS
rom execution, exc®P^®“J “
but actual bona fide residents of this
5tateCtl<Eau?Ubiae>?nterests^fti personaHiroperty can not be sold under
snforced in equity.
Choses in action may
Foreign Corporations. (See Corporations.)
1335
Foreign Judgments. Judgments of the courts of other States cer
tified under the act of congress, are proper causes of action -against any
erson subject to the process of the courts of this State.
Fraud. 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 McAleer vs. Horsey, 35 Md. 439. Every person buying merchandise
in bulk shall demand and receive from the vendor a written statement
under oath containing the names and addresses of 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 of 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.]
Garnishments. {See Attachments.)
Husband and Wife. {See Dower, Divorce, and Married Women.) In
this State the husband is not liable for wife’s antenuptial debts or con
tracts. Husband is liable for necessaries of wife. Acts 1898, Ch. 457,
gives husband same interest in wife’s 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 ot 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 ot 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.
Judgments 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.)
Liens. (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
circuit court for the county. The liens are enforced by scire facias or by
bill in equity.
Limitations of Salts. 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 Women. Act of 1898, Chap. 457, repeals and re-enacts the
entire law in 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 contracts and for torts, as if
unmarried. Married woman is alone liable for antenuptial debts and
contracts. Husband is still liable for necessaries. Widow is entitled to
dower in 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.
Mortgages are executed, acknowledged, and recorded same as deeds,
and are not valid against creditors unless recorded within six months.
There must be an affidavit made by the mortgagee or his agent at any
time beiore recording, that the consideration is true and bona fide,
and that the mortgagee will not require the mortgagor, or any
other person for him, to pay the tax levied upon tlie mortgage
interest, and upon the assignment of any mortgage except for the
purpose of foreclosure, a like affidavit must be made by the assignee.
If 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 Dills of sale, both of which must be recorded within twenty
days. The lien of a mortgage may, by ceasing to pay interest or any
installment of the principal for twenty years, be barred. They may be
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 Bills 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 requirements:
1. 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 maturity, 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 not necessary 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 by
statute as follows: “ Section 145. Time of Maturity. Every negotiable
instrument is payable at the time fixed therein without grace. Wnen 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
<
1336
BANKING AND COMMERCIAL LAWS—MASSACHUSETTS.
bolder, 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’sDay, February 22, Good Friday, July 4, Decoration Day, May
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 12 o’clock noon are a legal 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 presenting 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.
I
Power of Attorney. Every power of attorney authorizing an agent
or attorney to sell and convey any real estate, shall be attested and I
acknowledged in the same manner as a deed, and recorded prior to or j
with the deed executed in pursuance of such power of attorney. A cor
poration shall have power to appoint an attorney for the same purpose,
by its corporate seal. Such power of attorney shall be deemed to be re
voked when the instrument containing the revocation is recorded in the
office in which the deed should properly be recorded.
ness of his signature. In deeds where there is more than one grantor,
the acknowledgment of one of them is sufficient.
No separate examination or acknowledgment of wife joining in a re
lease of dower necessary. Conveyances of land are made by deed under
seal executed by the grantor or attorney having authority therefor. A
conveyance in fee, for life or for a term exceeding seven years, shall not
be valid except as against the grantor and persons having actual notice
of it, unless recorded in the county in which the real estate is situated.
Deeds must be under seal, a scroll being insufficient. No subscribing
witness is necessary. Release of dower must be explicitly stated in
deed, wife’s joining in deed merely, being insufficient.
Actions. There are three classes of actions: contract, tort, and replevin.
Actions at law are begun by writs issued in blank form by the clerks of
the several courts. No declaration need be inserted in the writ, except in
cases of arrest on mesne process or of an attachment of a vessel. Suits in
equity are begun by filing a bill upon which a subpoena is issued by the
clerk of the court. Actions begun by trustee process must be brought in
the county in which the trustee or one of them resides or has his usual
place of business.
Probate Law. (See Administration of Estates and Wills.)
Protest is usually made by notary public. Notary must keep register
of protests. A protest of notary public is prima facie 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
facie evidence that such notice has been sent or delivered in the manner
therein stated. (See Notes and Bills of Exchange.)
Replevin 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 any party having an interest in the property, may,
upon breach of 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 1100 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 of legislature, which
convenes every two years. The property of religious, charitable, benevo
lent, and educational institutions, and cemetery companies is exemptfrom
taxation. In Baltimore city the mayor and city council have authority
to exempt the plant of manufacturing industries from taxation, tor 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 amonnt received by collector from
sale, with interest to date of 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.”
Wills of land or personal property, and any codicil thereto, must be in
writing, signed by the testator, or some one else for him, in his presence,
at his request, and witnessed by two or more credible witnesses, as and
for last will and testament of the testator in the presence of all the wit
nesses thereto. Nuncupative wills invalid except in case of disposition of
personal property by soldiers and marines in actual service. [Code, Art.
93.] Every will or other testamentary instrument made out of the State
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
law of the place where the testator was domiciled when the same was made,
or according to the forms required by the law of this State; and if the tes
tator was originally domiciled in Maryland, although at the lime of making
the “will,” or at the time of his death, he may be domiciled elsewhere,
the said will or testamentary instrument then so executed shall be admitted
to probate in any orphans’ court of this State; and when so admitted
shall be governed by and construed and interpreted according to the law
of Maryland, without regard to the ex domicilii, unless the testator shall
expressly declare a contrary intention in said will or testamentary instru
ment. [Acts 1894, Ch. 151.] No will, testament, codicil, or other testa
mentary paper ehall be subject to caveat or other objection to its validity
after the expiration of three years from its probate. [Acts 1894, Ch. 405.]
When a person is nheard of lor above seven years, and supposed to be
dead, the orphans’ court, under the provisions of Act of 1908, Ch. 125,
may grant letters testamentary or of administration as the case may be.
SYNOPSIS OF THE LAWS OF MASSA
CHUSETTS
RELATINO TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by H. M. Burton, Attorney at Law, Boston.
(See Card in Attorneys' List.)
Acknowledgments and Deeds. Acknowledgments may be made
before any justice of the peace or notary public in the State; when the
acknowledgment is made by any person without this State and within any
other State, Territory or district of the United States, it may be made
before any officer of such State, Territory or district authorized by the laws
thereof to take the proof and acknowledgment of deeds, and when so
taken there shall be attached to the certificate of acknowledgment a cer
tificate of the secretary of the State or Territory in which such officer
resides, under the seal of the State or Territory, or a certificate of the clerk
of a court of record of such State, Territory or district, in the coanty in
which such officer resides, under seal of said court, certifying as to the
authority of such officer to take acknowledgments and as to the genuine
[
i
S
i
j
Administration of Estates. 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 be exempt from giving sureties if testator so directs. An administra
tor will be exempt if all persons interested in this State except creditors
consent and all creditors are notified by publication. In case a non-resi
dent 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 within three months, 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. No
suit can be brought against an executor or administrator who has pub
lished notice of his appointment, after two years from time ot his giving
bond, unless he has received new assets after the expiration of the two
years. 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
oi 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.
Aliens. Resident or non-resident aliens may sue and be sued and
i may hold and convey real estate.
Arrest. In an action of contract, the defendant unless she is a
j 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 of 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
j relief of poor debtors; on taking such oath he is released from arrest. No
! arrest can be made if the property of defendant is attached upon the same
writ. On an execution, except for costs, or for alimony, or one issued
in au action of tort, or where debtor is about to leave the State, he can
not be arrested until he has first been cited before a magistrate for
examination, and it appearing that he has property and refuses to
assign it, the magistrate may order his arrest. When arrested under ex; ecution the debtor may apply to take the oath for relief of poor debtors.
Assignments for benefit of creditors. A voluntary assignment to
I trustees for benefit of creditors can not be avoided if assented to
by creditors whose claims exceed the amount of property assigned,
except by proceedings in bankruptcy begun within four months or by
proof of fraud. If there is property in’ excess of the claims of creditors
who have assented, the excess in hands of the trustee can be reached by
trustee process. Acts done in good faith by the trustee under an assign
ment are valid, though the assignment be afterward set aside, if the
assignment is assented to in writing by a majority in number and value of
the creditors not secured. The trustee shall on acceptance of the trust
give notice in writing to all known credits of the assignment and
' acceptance thereof and shall deposit with the clerk of the city or town
wherein the debtor has his principal place of business a copy of the
assignment. The above would probably not apply under the provisions
I of the National Bankruptcy Act.
Insolvency.
There is an insolvent law, but it is superseded by the
National Bankruptcy Act of 1898.
Attachment. 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 suits
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,
may be attached by service on certain officers of the corporation.
Attachment of shares of stock is not valid aealnst a bona fide transfer,
although not recorded in book of corporation. Shares in foreign
i corporation cannot be attached except by Bill in Equity. Debtor
I may dissolve attachment by furnishing bond with sureties to pay
i judgment obtained or value of property attachea determined by ap
praisement.
Upon affidavit by the creditor or some one in hts
j behalf, that he has reason to believe that the debtor intends to leave
the State and has property not exempt from attachment which he does
not intend to apply to the payment of plaintiff’s claim, the debtor may
be arrested and held to bail. Debtor against whom judgment is rendered
for over $20 may be subjected to sworn examination touching his
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
apply and be examined to take the poor debtor’s oath. Proceedings in
insolvency dissolve attachments made within four months of first publi
cation. An attachment is dissolved by death of the detendant if admin
istration is granted upon his estate upon application made within one
year after his death.
BANKING AND COMMERCIAL LAWS—MASSACHUSETTS.
Banks. In this State, safe deposit, loan, and trust companies are incor
porated under special act of the legislature, and are governed by the pro
visions contained in chapter 116, Revised Laws, and amendments thereto.
Under the general law ten or more persons and their successors may form a
corporation for the purpose of carrying on the business of banking. The
general court may, by special act, annul or dissolve any such corporation;
but its dissolution shall not impair any remedy against the same for
liability previously incurred. The capital stock of each bark shall not be
less than $200,000.00 nor more than $1,000,000.00, except in cities or
townswhose population is not more than 100,000, the capital may be not
less than $100,000.00. No bnsiness shall be transacted until the whole
amount of its capital stock is actually paid in. Before commencing
business the president and directors shall make a certificate specifying the
corporate name, which shall be different from any previously organized
in the Commonwealth; the location of said bank; the amount and number
of shares of its capital stock; name and residence and number of shares
of each stockholder, and the time when it is to go into operation; a copy
of which certificate shall be filed with the secretary of the common
wealth. No part of the capital stock can be sold or transierred until
the whole amount thereof is paid up. No person can hold more than
half the capital stock, exclusive of that held as security. In addition
to the capital stock to which a bank is entitled, the Commonwealth may
subscribe thereto an amount not exceeding 50 per cent of its authorized
capital, when provision is made therefor by law. Said Commonwealth
shall be entitled to its proportionate share of profits and dividends. Upon
the vote of three-fourths of its stockholders, a bank may increase its
capital stock to an amount not exceeding $1,000,000. >o bank shall
have less than seven nor more than twelve directors. The cashier is
required to give bond in not less than $20,000, with two or more sureties,
before entering upon his duties. The debts of a bank shall at no time
exceed twice the amount of capital stock paid in exclusive of 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
in lawful money of the United States, equal to 15 per cent of its liability
for circulation and deposits. Stockholders of a bank are liable in their
individual capacity for the payment of all the circulating notes remaining
unpaid in proportion to the stock they respectively hold when it stops
payment.
Any committee appointed by the 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, an das
much oftener as they may deem expedient, all such banks, an“ ex
amine all their affairs, aud make such inquines as ™“7 be necessary
to ascertain their condition, and make a report of such investigation to
the general court.
Chattel Mortgages. Chattel mortgages must be recorded ini the records of the city or town where the mortgagor resides w hen the mort
gage is made and in the city in which he tiien transacts business; every
mortgage must be recorded within fifteen days of the date: until recorded
the mortgage is not valid except between the parties un ess PO^ssion
is delivered to and retained by the mortgagee On loans less than
000 secured bv mortgage, the rate of interest can not exceed IS per
ce^ K is a c» ofense to remove, sell, or conceal mortgaged
property.
Corporations. By Special Act of 1903, Chapter 437, the law of bnsiiness cor porations was revised and applies
^^ne""8 wdrtTin the
co-operative banks, trust companies, surely
Street rai“wav
safe deposit companies, insurance companies, ™>’road or strlet rall ay
comnanies t“leEraDh or telephone companies, gas or electric light, heat
SpSwerc'omiSf.“ «»«1..deduct of
panics, or any corporations which now have or
-.
.
wavs
right to take or condemn land, or to exercise franchises m nu b c ways,
and corporations to buy and sell real estate, or to
icating liquors.
Under this act three or more person- may associate together and form
lions as may be fixed by the
’Sn.Sl^i.fioa
zation of the associates and filing a copy oi l
nf a fee of onewith the commissioner of corporations and onjMjinent of a ree o one
twentieth of 1 per cent of the ?P^X^f^
of incorporation is issued by the secretarv
inronuible services or
may be issued for cash property ’a»^Le h°pr .'“Sa fromi time to
expenses. The amount of capital stock “ X directors president,
tune. The corporation must nave not less than three directors, presme ,
clerk and treasurer The direciors XX bv and from the
of
the stockholders The president is chosen J c monWPajtb. Meetdlrectors. The clerk must be are^ent of the Commonw^aun.^
mgsof stockholders must be he d within
voting by proxy
tors may meet witnin or without the Com ^^wea^ montbg before the
is permitted, but no proxy dated
.
hold purchase, convey,
meeting named is valid. Any corporat
A. as
purposes of the
mortgage or lease such real or personal p P J
business may require.
Every such corporation is r?quireda^f!ifQn"oafl|ea1 wntten°stateDient
dition. and if its capital stock is oyer $100,000 to fide a wntu
under oath by an auditor. It is‘ alob"X ^Torgamzed under the general
to the tax commissioner. Everv corpor no
howned by it in
law is taxable locally upon a 1 real estoteand m^chise Jax as^egale
the Commonwealth, and is“
froin the value of real
market value of its shares after deducting
and
valae of
SftSffS SSSSf-Wrt*
S“,e “
and subject to taxation there.
>«,
“Sf?»i,ffXf“S,
Cor,,«r.M^
or is engaged here permanently , .jdin
bridge, railroad, railway, or
tion, alterai ion
W,’Ll before doing bosiness here appoint the cornstructure of any kind, shall b F®oro
fnr the service of process, such
missioner of corporations it
liability remains outstanding against
authority to continue as Ion
fl]g wjth the commi8lqouer of Corit in this Common wealt*>- aI
s' a
wg_ and a (ertiflcate getting forth
porations a copy of its charer MJ* of it8 oflicers, date of its annual
its name, location, names^a
allthorized and issued, the number and
meeting, amount of its capi
l)ajd thereon, and details of any paypar value of its shares, the a
They are required to file annual
stotemenXwitl^the^ommiiSoner of corporations showing their con
85
13S7
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. Failure to file the
above statements tenders every officer and agent liable to a fine of not
more than $500. A foreign corporation is subject to taxation locally on
its real estate, machinery and merchandise in this Commonwealth, and
to an excise tax of one-fiftieth (1-50) of one oer cent of the par value of
its authorized capital, but the excise tax shall not exceed $2000 a year.
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, of all actions of
contract, tort, or replevin, where the debt or damages demanded or
value of the property alleged to be detained does not exceed $100,
and concurrent jurisdiction with the Superior Court oi 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 he subject to the same liabilities as
trial justices. The Supreme Judicial Court has original jurisdiction
in all equity matters and may on appeal hear all matters determined
by the Probate Court, and determine questions arising under wills.
Superior Court has jurisdiction where the amount claimed exceeds $20.
Municipal Court of the city oi 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 of business in the county of Suffolk.
Land Court has exclusive original jurisdiction for registering titles to
real estate under the Torrens System, and of writs of entry and petitions
to clear titles to real estate.
Depositions. The deposition of a witness without the State may
be 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 by
a commissioner appointed by the governor for that purpose. Every
deposition taken under a commission must be upon written interrogato
ries, 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 of
the deposition or be represented by attorney. Oral examination if
allowed if the Court so orders.
Divorce. A divorce may he granted for adultery, impotence, cruelty,
desertion for three consecutive years, intoxication, drunkenness by use os
opium and other drugs, cruel and abusive treatment, neglect to support
wife, sentence of five years or more imprisonment. The parties must
have lived together as husband and wife in this State; and cause must have
occurred in 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
filing of libel or for three years if parties lived here at time of marriage.
A divorce may he granted for any lawful cause wherever it occurred. All
decrees of divorce are granted nisi tp 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.
Dower and Curtesy. A wife is entitled to dower in this State as at
common law. A husband-shall on the death of the wife hold one-third
of her land for his life, this interest is known as enrtesy. If the deceased
leaves no i-sue, the surviving husband or widow shall take $5,000 and
one-half 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 property.
Executions can not issue until twenty-four hours after judgment
rendered, and an original execution must be issued within one year after
plaintiff is entitled to sue out the same. Executions in all courts are
returnable within sixty days. There is no stay ol 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 exemnt from levy.
Exemptions. Homestead, if recorded, to the value of $800. Neces
sary wearing apparel of family, certain specified articles of household
furniture, and $300 worth in addition thereto; library, $50; tools and
implements, $100; stock, $100; boats and fishing tackle, etc., $100; one
cow, six sheep, one swine, and two tons of hay, sewing machine, neces
sary wearing apparel, pew in church, etc. Materials and stock designed
and necessary for carrying on 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
assessment insurance benefits, uniforms, arms, and equipments of militia
officers.
Frauds, Statute of. No contract for sale of goods for $50 or
more shall 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 in insolvency. 2. To charge a person for the
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.
Holidays. The following are legal hblidays in this State: February
22d, April 19th, May 30th, July 4th, first Monday in September, Thanks
giving Day, Christmas 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.)
Interest. 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 of said rate shall be applied to discharge of the principal. No
bond can he issued by a corporation at more than seven per cent.
Judgments may be entered within four days of default, hut do not
constitute a lien upon realty or personalty of debtor not attached on
the original writ. Are not outlawed for twenty years. Foreign judg
ments are proved by a copy of the record.
Limitation of 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,
1338
BANKING AND COMMERCIAL LAWS—MICHIGAN.
and personal actions on contracts not limited, twenty years. Revivor:
Part payment by the party sought to be charged or new promise to pay
in 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.
Married Women. The real and personal estate of a married
woman, acquired at any time, remains her sole and separate property,
not subject to the control of her husband, nor liable for his debts.
Married women may carry on trade or business, make contracts, sue
and be sued, in all matters relating to their separate property, and such
contracts are not binding upon the husband. Wife carrying on busi
ness on own account must record certificate with city or town clerk; j
neglect 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 j
through a third person. (See Dower and Curtesy, as to rights of hus
band in estate of deceased wife).
brother, sister, nephew or niece to a tax of 3 per cent if not over $25,000,
of 4 per cent if over $25,000 and not over $100,000, and of 5 per cent if
over $100,000. Property passing to or for benefit of any other person not
exempt, a tax of 5 per cent. Property going to use oi a charitable, edu
cational or religious society or institution or for use of a city or town is
exempt; no bequest or share passing to a husband, wife, father, mother,
child, adopted child or adoptive parent is taxable unless its value exceeds
$10,000. No oiher bequest, devise or distributive share is taxable unless
it exceeds §1000. Shares of stock of non-iesident decedents in Massa
chusetts corporations and national banks are subject to a tax on the
transfer thereof.
Transfer of Corporation Stock. The delivery of a stock certifi
cate of a Massachusetts corporation to a bona fide purchaser or pledgee,
for value, with a written transfer of the same, or a written power of attor
ney to sell, assign or transfer the sa ne, signed by owner of certificate,
shallbe a sufficient delivery to transfer the title as against all parties.
Trustee Process. All personal actions except replevin, and actions
of tort for malicious prosecution, slander, libel, or assault and battery
may be begun by trustee process, and goods, effects, or credits of defend
Mortgages. Mortgages now in common use contain a provision
ant in hand of a third person may be attached and held to satisfy final
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- ] judgment.
ance with the provisions of the power contained in the mortgage, and
Wills. Any person ot full age may make a will disposing of his
an aflidavit that the mortgagee has complied with the provisions of the
estate. The will must be signed by the testator and attested by three
mortgage shall be recorded m the registry of deeds within thirty days
witnesses in presence of the testator. A married woman may make a
after the sale. Notice of the sale must be published once a week for
will, but such will shall not deprive her husband of his tenancy by the
three weeks (sale to be not less than twenty-one days after first publica
curtesy in her real estate, or of a life estate in one-half thereof if they
tion), the publication to be in the city or town where property is situated
have had no issue born alive.
or, 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.
Notes and Bills of Exchange. The law of negotiable instru
ments is codified in Revised Laws, 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. An instrument
payable upon a contingency is not negotiable. The validity 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, except drafts and bills of exchange payable within this
State at sight, on which three davs grace are allowed; when the day of
maturity falls on Sunday or a holiday the instrument is payable on the
next succeeding business day. Instruments Mlling due on Saturday are
to be presented for payment on the next succeeding business day, ex
cept that those payable on demand may at option of the holder be pre
sented for payment before 12 o’clock noon on Saturday, when that
entire day is not a holiday.
The acceptance of a bill of exchange must be in writing and signed by
the drawee. The drawee is allowed twenty four hours after presentment
to accept the bill.
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 tne 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
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 promissory notes
ayable on time by a signature in blank on the back thereof, shall
e 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.
SYNOPSIS OF THE LAWS OF MICHIGAN
j
i
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised 'by Messrs. Julian* G. & Julian Dickinson,
Attorneys at Law, Detroit, Michigan.
Acknowledgments of real'estate instruments may be before one
of the following officers: 1.—Within this State: Any 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
their) free act and deed.’’ Notary’s certificate must show date of
expiration commission. Such instruments must have two subscribing
witnesss. 2.—In any other State, territory, or district of the United
j 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 by the Governor of this State for that purpose.
Any 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’affairs, or commissioner or counsul of the
United States, appointed to reside therein.
Actions. Common law forms of pleadings are used, but in some
respects modified by statute. Non-resident plaintiff’s must give
security for costs.
Administration 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 by 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
allowanc or disallowance of any claim. All claims barred, not pre
sented before administration is closed:—
Administration 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 in
Suits. Civil actions in general, except those concerning land (if one
other states, territories, or foreign countries cannot sue as such in this
of the parties lives in the State), must be brought in the county where
State without procuring administration in this State.
one of them lives or has his usual place of business. Where all parties
Affidavits: may be taken by any judge, master in chancery, clerk
are non-resident, action may be brought in any county. Attachment
of court, justice of the peace, police magistrate, notary public, or
of property owned by defendants residing out of State sufficient to give
circuit court commissioner. Any oath authorized or required to be
jurisdiction in suit after notice published by order of court. Such
made, without the State for use in judicial proceedings here, must be
notice to be given within one year from the entry of the suit. Persons
authenticated by judge of a court having a seal, and the genuineness
commorant in State may also be arrested on mesne process and held to
of such judge’s signature, existance of the court, and that such judge
bail.
is a member thereof, certified by the clerk of the court under the seal
Taxes are assessed as of the first day of April in each year, and on 1 thereof. If in any other state or territory, may be taken before a com
real estate are a lien for two years after they are committed to the
missioner appointed by the Governor of this State, or any notary public
collector; but the collector may sell real estate for taxes after two
or justice of the peace authorized by the laws of any such state or
years have elapsed, unless the estate has been alienated prior to the
territory to administer oaths therein.
giving of the notice of such sale. If not paid on demand, collector
In actions at law affidavits of amount due on open and stated
may sell after advertisement. Owner, his heirs or assigns, may redeem
accounts, attached to and served with process as commencement of
within two years by paying or tendering to the collector when he
suit make a prima facie case, unless denied by the defendant’s affidavit
exercises the power of taking, or to the purchaser of the sum paid
filed and served with plea.
by him, with 10 per cent interest and all necessary intervening charges,
Aliens. May inherit or purchase and hold and convey personal
and person having title may redeem in two years after notice if prop
and real estate.
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
Arbitration. Competent parties to any controversy which is or
sale, if resident in the city or town where the estate is, must record
might be the subject of an action at law or suit in equity, may agree
his residence or place of business. If he resides elsewhere he must
to
arbitrate, and Judgment of any circuit court rendered upon the
appoint an agent or attorney and record such appointment.
award. No arbitration of claim of any person to any estate in fee
or
for
life in real estate.
Inheritance, Tax.
An inheritance tax is payable on the estates of all
persons! dying after September 1, 1907, as follows; All property passing
Arrest. By writ of capias in personal actions in tort and in actions
by will, upon intestacy, grant or gift to take effect after death to the
for money collected by any public officer: or upon promise to marry;
husband, wife, lineal ancestor, lineal descendant, adopted child, lineal
also by warrant allowed by any justice of tne peace or judge of a court
descendant of adopted child, adoptive parent, wife or widow of a son or
of record, under the fraudulent debtor’s act, when the creditor has
husband of a daughter is subject to a tax of one per cent if not over
commenced suit or.obtained judgment and the debtor has disposed
$50,000, 114 per cent, if over $50,000, and not over $100,000, and 2 per
of or concealed, or is about to dispose of or conceal property liable
cent if over $100,000. All such property passing to or benefit of a
to execution, or the debt was frauduently contracted.
j
'
BANKING AND COMMERCIAL LAWS—MICHIGAN.
Assignments for the benefit of creditors are void unless made
without preferences; must comprise all of assignor’s property not
exempt from execution. The circuit court in chancery has super
visory jurisdiction of such assignments.
Attachments. 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 in
certain cases.
Banks. Incorporation of:—Any number of persons not less than
five may associate to establish for a period not to exceed thirty years;
commercial banks; savings banks, and banks having for both classes.
Capital required is graded—$15,000 to $100,000, according to popula
tion of cities or villages where conducted. Upon filing articles of
association, commissioner of banking department and Secretary of
State issue certificates of organization; board of directors chosen by
the stockholders. IS o more than the legal rate of interest in advance
shall 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; commercial 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.
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 by 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 after
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 by stockholders, bank s
1 rust deposit and 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
to $5,000,000 according to population of cities where conducteo;
deposit with the State Treasurer fifty per cent of the capital stock
in bonds or real estate mortgages; worth double the amount secured,
powers such as are customary for trust companies. They cannot
do any banking business.
Collaterals. 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 by 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
be between
nine o’clock forenoon and sunset, at a public place in the township,
city, or village where held.
Conditional 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 °w
Frauds )
authority of consignor or legal owner. (See Liens.) (bee Frauds.}
Conveyances. Anv person of full age or otherwise capable may
convey by deed any interest in lands, whether in actual possession
m noU All grants and devises of lands to two or• more Per^create
estates in common; no joint tenancy, unlessi expire
a're
cept such as are made in trust or to executors,
- V. ,, y,
made to husband and wife, who take as
by entuet > ‘ remLes
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 repre^ntatives is setsed of
the premises, has good right to convey same, g
Q acainst
session thereof, and that he will warrant
all lawful claims The words “conveys and quit claims auiy
signed, sealed and acknowledged by grantor are sufficient .^ convey
grantor’s interest, lhe words “ mortgages and warrants and du^y
described premises, specifying “to secure the
evidences
and homesteTdhghls not waived unless wife jo^m the^or^ge
No homestead right.will avafi against th^mortgageeff thereto
wife,
norwith
if wife
J°ms,!nin
-j
ed mortgage,
power of attorney or
joining
husbands
any aeea,
iuuimsab . h
other writing, shall be bound in respect to their own title.
Banks, mining, manufacturing, insurance fire
estate associations, real
associations, and religious
“‘e»"reSSiv.ly Sromi.eH “±[e? of’i'S'io.’'’‘ ””
to file with the Secretary of State, articles ot association.
half of capital must be aciuauy =
in; if in property same
either in money °r P^P o{ytiie business, and described and its value
must, be ,for ^ie’ P¥I
holders vote in person or by proxy
specified in the artic .
g for directors as directory numbers.
Each share has as m y
b0 distributed for one or more of
and the a?^cga
Dreferred and common stock of the par value
^flr«$10
Cif?rnr
to dividend
8 per
of
or $100. Preferred
Preterreu entitled
en
annually
and not to
notexceed
paid be
ac.
cent quarterly,
before any dividend paid on the common.
association to be recorded in the County Clerk’s office
of county where operations carried on, and office of the Secretary
1339
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 Secretary of
State; stockholders are liable for labor debts; they make all by-laws
for corporation. Foreign corporations organized under the laws of
any 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 by state laws.
Courts. Terms and Jurisdiction. 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
oeace 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.
Bays of Grace. Abolished.
Depositions. 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 by 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
examination in the first instance.
Descent. Real estate and personal property of intestate (after
payment of debts and administration expenses and allowances, as
follows:
Real Property.—One-third to widow, remaining two-thirds to his
issue; if no widow the whole to his issue to share equally if of same
degree of kindred to intestate, otherwise by representation; if no
issue, husband or widow to the father and mother in equal shares,
if only one living to the survivor alone. If surviving husband or
widow and no issue, one-half to such survivor, remainder to father and
mother or their survivor. If no issue or parents, husband or widow,
equally to brothers and sisters and their issue by representation; if
none such relatives, to next of kin in equal degree through nearest
ancest >r; if any unmarried child dies under age, his or her inheritance
from any parent, to other surviving children of same parent and their
issue by representation. If husband or wife survive and no issue,
parents, brothers or sisters, or their children to husband or wife, and
if no foregoing relatives whomsoever estate escheats to State. Illegi
timates heir to mother; dying intestate estate descends to mother,
or her relatives if she be dead; become legitimate byparents, inter
marriage or father’s written acknowledgment. The foregoing pro
visions for the widow are in lieu of dower and homestead right unless
one year after administration granted she applies for assignment of
dower and homestead in which case her interest in deceased husband’s
lands is limited to the dower and homestead right and the residue
shall descend as above provided for that portion not taken by her.
Personal Estate.— Residue—one-third to widow, two-thirds to
children or issue by representation; one child; one-half to child
and one-half to widow; no widow or child.; to all lineal descendants
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, one-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 none, all to hus
band. In any other case same as for real property. Estates by
courtesy abolished.
Divorces. 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, drunkenness,
absolute divorce in other States, extreme cruelty and non-support.
Complainant must reside in this State one year immediately pre
ceding complaint; if cause occurred out of State, residence two
years required unless cohabitation is shown while within the State.
Suit in county where complainant resides; process may be served in
any county in the State. Duty of the Court to include in the decree
a provision in lieu of dower in the husband’s property. Real estate
held jointly or as tenants by intireties shall upon divorce become
tenants in common unless otherwise decreed.
Dower. Wife entitled to use of one-third part of all lands owned
by her husband as estate of inheritance 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 by deed alone to one who has husband’s title, intent to bar
being expressed; or by jointure secured as bar.
Execution. 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 highestl 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
1340
BANKING AND COMMERCIAL LAWS—MICHIGAN.
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.
i
Exemptions. Homestead—selected by 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. Exemption of homestead continues during its occupa
tion by the widow or minor children of deceased person who when
living occupied the same.
Fraud. 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 this State; 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 by 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 by such purchaser or of property held under any lease
by 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.
Frauds—Statute of. No executor or administrator is liable on any
special promise to answer damages out of his own estates.
Fraud, Civil. Sales, transfers and assignments of stocks of
goods, wares merchandise and fixtures in bulk pertaining to conduct
of any business, otherwise 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.
Garnishment. 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 labor,
and of any other person for labor not more than $15 and not less
than $4; and benefits payable by fraternal beneficiary societies,
shares in building and loan association of any debtor, except as to
one having a homestead exemption, are exempt from garnishment.
Husband and Wife. If sued together she may defend and if either
neglect to defend the other may be<>rdered to defend for both. If
he deserts her she may be authorized by 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.
Interest. Legal rate 5 per cent, but by 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 rate. 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 year of twelve months.
Judgments of courts of record are not liens on real estate or
personal property until by 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
by 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.
Liens. 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 or 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. Any person, artisen, or tradesman for labor and
skill applied upon any.property delivr ed 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.
Limitation of 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: uart 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 by auditor general of
this State for taxes; and by minors and others under legal disabilities
three years after removal of such disabilities; in all other cases
fifteen years.
Limited Partnerships. 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.
Married Women. 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 by consent
of their husbands; cannot enter into partnership with husband or
any other person and become liable for the firm contracts. Married
women’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 by deed, mortgage or contract.
Mortgages on real estate, executed and acknowledged the same
as deeds; may be foreclosed under power of sale by 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 by 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 by 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.
Negotiable Instruments. A promissory note is an unconditional
promise in writing to pay 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 place
where drawn or payable. If issued, accepted, or indorsed when over
due is payable on demand.
May be payable to two or more payees
jointly 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 of
such day not a holiday may if payable on demand be presented before
noon.
Fraud in procuring signatures and delivery defense against 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 acceptanceif 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 of
two or more creditable witnesses; drawee is not liable unless he accepts
Check or a bill of exchange on a bank payable on Remand, must be
presented 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 theretomaterially changes the law in this State and should receive special
examination in every doubtful case.
Power of Attorney. 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 years’ term
by attorney in fact, the power of attorney must be in writing signed,
BANKING AND COMMERCIAL LAWS—MINNESOTA.
sealed and acknowledged same as a deed of lands, to be admitted for
record or to proof thereof.
Probate Law. (See Administration of Estates.)
Protest. (See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken or detained may
be replevined by 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 sureties
to 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 the
same 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 rnay
warrant. In justice courts bond with sufficient sureties must be
given and filed in double value of the property before writ issues.
Taxes. 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 by foreclosure m chancery in
every county, and the taxable property sold under decree of the
court by County Treasurer, each parcel for the amount ot taxes ana
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 lor 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 by purchaser and five dollars
for each parcel redeemed. City taxes are governed by charter o by
the general act under which cities and villages are organized.
Wills. Codicils. Every person of full age (21 years) and of sound
mind may make; must be in writing, signed by testator or by some
person 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 w nesses
competent as such at the time. If one of the subscribing witnesses
shall testify to the execution of the will in all partioulars and testa
tor was of sound mind at the time will was made, the c
admit the will, in case no person appears to contest
allnone
of the witnesses reside in tne State at the tune of P
®
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 wi conclus ve of its due
execution and cannot be assailed collaterally, ^ore g
»
V
admitted to probate without the State, may be ^d
rpni nr npr.
corded in any County of the State in which testator eft real or per
sonal estate by duly filing, an exemplified copy of
of the record admitting same to probate. A
"
which the value of the estate bequeathed does. not ^c«ed ^?’ed bv
proved by two witnesses, may be a lowed. Wills may be ^evoked^y
burning, tearing, cancelling, or oblitermg with intention of coking
same by testator, or by some other writing signed,
,
.
scribed in the manner provided for execution of wills b
P
revocation implied by law.
SYNOPSIS OF THE LAWS OF MINNESOTA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Edward P. Sanborn,
•
Attorney at Law, St. Paul.
(See Card in Attorneys' List).
Acknowledgments may be certified by the
k°®caay
I. Within the State by a resident judge, clerk or deputy clerk ot^any
jourt of record therein, a notary public, ju.
.
f deeds or
’itv or village clerk court commissioner, register ot aeea. or
jountv auditor, or their deputies, county
|rta™by a
rf the legislature. 2. Out of the>State but in the
iudge of the Supreme,
cmt, °r J^tncteCr?tory Qfr district, the clerk
ir of any court of record ot any state, termo >•.
.
{ tbe Deace
w a deputy clerk of any
(J^raor of this State for that
3r any commissioner appointed by tne t’Overiio. nnbi;c or by any
purpose. 3.
In foreign countries by a notary public w ny any
minister, charge d’affaires.—M
to
5ther consular or diplomatic officer of the L
fbe form of
reside in such country, and deputies of such officers, me iot
the certificate may be, On this................ a y described in, and who
oefore me personally appeared...... • • - • • • • •:• , . that he executed
jxecuted the foregoing instrument and ac m°^edfltside the State the
topSoDfe s£l of the certifying officer must be affixed
the signature of the certifying officer is genuine.
.
Actions. The distinction betweer.actions, at law and smtsm equity
is abolished. There is oldy 91?® /he'name of the real party in interest
action and must be
: trators ‘trustee of an express trust and
except that executors, adn
statute may sue without joining the
persons expressly authorized by stat>
person for whose benefit the suit is
S ■
. . ...
Estates of deceased persons are
Administration
of
Es
which there is one in each county
administered m Probate Courts or wiuvu v
presided oyer by the P^ba(^^-|tration preference is given: 1. To
In granting letters o
such suitable person as they or
the surviving spouse or next ,pf^k ftppHcation is made for thirty days
either of them select.
.
:ncjpai creditor or creditors, or some
after death of *ntesta..’deceased was native of foreign country to the
person interestedI andiM^ea. e
country residing in this State.
consul or ot^
stfiteble person as he may select.
or to such competent anti smtao ^
an
,imiti
1he time
Upon granting letters 1he cour^
time
be leTsThan six or more than twelve months; but may be extended
1341
for good cause to a date not more than eighteen months after notice
given of the order. On proof by 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.
Allens. (See right to hold property.)
Arbitration. 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.
Arrest. There is no arrest for debt.
Assignments. 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 by that act.
Attachment. Before allowing a writ of attachment, the court
must require of the plaintiff a bond in the sum of at least 8250, 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.
Banks. 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, 820,000; in towns of 1,500 to 2,000, and
S25.000 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 by 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.
Bills of Lading. Warehouse receipts and bills of lading for prop
erty in transit, unless the words “not negotiable” appear plainly on
the face thereof, are transferred by endorsement which shall carry the
title to the property and all rights of the endorser therein.
Chattel Mortgages. Every mortgage of personal property which
is not accompanied by immediate delivery and followed by 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
at the time of its execution, if a resident of the State, or™f that in
which the property was then situated if a non-resident. Duplicates
or copies certified by 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 by 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.
Conveyances. 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 by 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.
Corporations. 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 810,000,
divided into shares of not less than 81.00 or more than 8100.
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 by 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 vegetables, nor to those whose sole business is transpor
tation of freight or passengers by water.
Courts. District Courts hold one or more terms a year in each
organized county, have original jurisdiction in all civil actions at law
1342
BANKING AND COMMERCIAL LAWS—MISSISSIPPI.
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 by 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.
Days of Grace are abolished except on sight drafts.
Depositions 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.
Descent and Distribution of Property. 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.
Divorce. 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.
Dower is abolished.
Executions 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.
Exemptions. Homestead outsideFof incorporated municipality
may include eighty acres. If in incorporated place containing less
than 5,00(mnhabitants, its area shall not exceed one-half acre, and in
larger incorporated places one-third of an acre without regard to value.
Family pictures, library, musical instruments for use of family, wear
ing apparel, beds, stoves, cooking utensils used by family, other house
hold furniture not exceeding S500 in value, three cows, ten swine, one
yoke of oxen and a horse, or in lieu thereof, a span of horses or mules,
twenty sheep, the wool therefrom raw or manufactured, food for
such stock for one year’s supply, one wagon, cart or dray, one sleigh,
two plows, one drag, and other farming utensils not exceeding $300 in
value, provisions for debtor’s family for one year’s support, tools kept
for purpose of carrying on trade, and stock manufactured in whole or in
part by debtor not exceeding in value $400; library of professional
man; presses, type, and tools of publisher of newspaper not exceeding
$2,000, and his stock in trade not exceeding $400; watch, sewing
machine, typewriter, bicycle, seed for use of debtor for one season not
exceeding certain amounts; library and apparatus of college or school;
money payable to wife or child from insurance on life of deceased hus
band or father not exceeding $10,000; money or relief from benefit
association; money from insurance on exempt property wages
earned within thirty days not exceeding $25.
Holidays. January 1st; February 12th and 22d; Good Friday;
May 30th; July 4th; first Monday in September; Tuesday after first
Monday in November, each even numbered year (election day), and
December 25th are legal holidays. Thanksgiving day is so far that
negotiable instruments or contracts due that day are payable next
succeeding business day.
Interest. Six per cent is legal rate, but by special contract any
rate not exceeding 10 per cent may be exacted. Usurious contracts
are void.
• •
Judgments'may be entered by default in district courts at expira
tion of twenty days after service of summons. When docketed in those
courts they become liens upon all real estate of the debtor in the county
where docketed then owned by him or afterwards acquired, and the
lien continues for ten years after the entry of the judgment. Trans
cripts of judgments in justice and Municipal Courts may be filed in
district court and there docketed, and then become lien on real estate.
Liens. To preserve a mechanic’s lien a verified statement must
be filed by the lien claimant within ninety days after furnishing the
last item of labor or material in the office of the register of deeds of
the county in which the improved premises are situated, or if claimed
upon a line of railway or its appurtenances with the Secretary of State.
Limitation of Actions. On contracts express or Implied six
years; judgments ten years; to foreclose mortgages fifteen years; to
recover real estate, fifteen years.
Married Women. Property acquired by wife before or after mar
riage remains her separate estate. It is liable for her debts and torts
to the same extent as if she were unmarried, and she may make any
contract which she could make if unmarried, except that no convey
ance or contract for sale of her homestead or any interest therein is
valid unless her husband joins in the same.
Both husband and wife are liable for necessaries furnished to and
used by the family.
Mortgages on real estate executed in the presence of two subscrib
ing witnesses, acknowledged and recorded in the office of the register of
deeds of the county in which the mortgaged premises are situated may
be foreclosed by publication or by action. The mortgagor or his
assigns may redeem within one year from the date of the foreclosure
sale.
Notes and Bills of Exchange. Commercial paper is payable at
the time fixed therein without grace, except sight drafts. When due
on Sunday, or any legal or bank holiday, the same is payable upon the
business day next succeeding, and may be protested on such succeed
ing day.
t Right to Hold Property. No person unless he be a citizen of the
United States, or has declared his intention to become a citizen, and
no corporation unless created under the laws of the United States, or
of some state thereof, shall acquire lands exceeding 90,000 square feet,
except by devise, inheritance, or through security for indebtedness.
This does not apply to actual settlers on farms not exceeding 160 acres,
or to subjects of a foreign country, whose rights to hold lands are
secured by treaty.
No corporation, more than 20 per cent of whose stock is owned by
persons not citizens of the United States, or by corporations not
created under its laws, or those of some state thereof, can acquire
lands, and no corporation unless organized for the construction or
operation of a railway canal or turnpike can acquire more than 5,000
acres, but this does not apply to lands acquired in the collection of
debts, nor to a person or corporation engaged in selling lands to actual
settlers sold within ten years after acquiring title.
Taxes on real estate may be paid one-half before the first day of
June and one-half before the first day of November of the year following
the levy thereof, and if not so paid a penalty of 10 per cent attaches.
If taxes on personal property are not paid before March 1st of the year
following the levy thereof, a penalty of 10 per cent attaches.
Wills. Every person of full age and sound mind may dispose of
property by will in writing, signed by the testator, or by some person
in his presence and by his direction, attested and subscribed in his
presence by two or more competent witnesses. Every person includes
married women. If, after making a will the testator marries, the will
is thereby revoked.
SYNOPSIS OF THE LAWS OF MISSISSIPPI
RELATING TO
BANKING AND COMMERCIAL USAGES.
Accounts. Sworn to entitles plaintiff to judgment, unless defend
ant flies aflidavit denying. The aflidavit must be by the creditor or his
agent.
Acknowledgments before any judge clerk of a court of record under
his seal, justice of the peace, notary public, or member of the board of
supervisors. Acknowledgments in another State may be before any of
the judges oi the supreme court, or any district judge of the United
States, or a judge of the supreme or superior court in any State or
Territory, any justice of the peace, whose official character shall be
certified to under the seal of some court of record in his county, or
by any commissioner residing in such State or Territory, appointed
by the governor of Mississippi, or a notary public or a clerk of a
court of record having a seal of office. Acknowledgments or proof of
deeds to property in this State by persons in a foreign country may be
made before any'court of record, or the mayor or chief magistrate of any
city, borough, or corporation where the grantor or witnesses reside, or
maybe; or before any commissioner appointed by the governor of this
State, or before any ambassador, foreign minister, secretary of legation, or
consul of the United States. The certificate shall show that tne party
or party and witness were identified before the officer, and that the party
acknowledged the execution of the instrument, or that the execution was
duly proved by the witness or witnesses.
Actions. All distinction as to forms abolished. Service five days
before return day. All actions triable in the circuit court at first term
in which the defendant has been personally served with process thirty
days before the return day. Mandamus, quo warranto, mechanics’
liens, attachments, and replevin triable at return term on five days’
notice.
Administration of Estates. Had in chancery court, according
to will, if any. Claims against deceased must be registered within one
year after the first publication of notice to creditors registration stops
the general statute of limitations. All debts are to be paid before heirs,
distributeres, or legatees. Claims against insolvent estates are paid pro
rata.
Affidavits or Oaths before a Judge of any court of record, clerk of
such court, master in chancery, member of the board of supervisors,
justice of the peace, notary public, mayor, or police justice of a city,
town or village; in another State by any officer thereof, or of the
United States, authorized to administer oaths.
Aliens. No restrictions on the rights of resident aliens to acquire
property or dispose of it Non-resident aliens can not hold land, but may
take liens thereon to secure debts and purchase at foreclosure thereof,
and thereafter hold it for not longer than twenty years, with power to
sell to a citizen iu fee; or he may retain it by becoming a citizen.
Appeals from justice court to circuit court withia five days. From
circuit and chancery courts to supreme court within two years.
Appeals also in certain cases from board of supervisors and municipal
courts.
Arbitration. Parties may submit to arbitration of one or more
disinterested arbitrators, with agreement that proper court shall enter
judgment.
Arrests made by certain officers, or private persons may arrest for
offense committed in his presence. No or imprisonment for debt.
Assignments and Insolvency. No insolvent law. Debtor, though
insolvent, may preier creditors, if in good faith and no benefit, direct
or indirect, is reserved. No provision for the discharge oi a debtor on
his making an assignment. In general assignments, where the value
exceeds $1,000, the assignee must give bond and administer the tru8t
BANKING AND COMMERCIAL LAWS—MISSISSIPPI.
Practically superseded by
in chancery. Preferences not prohibited,
bankrupt law.
Attachment. Against a debtor who is a non-resident or who
removes or is about to remove himseli or property out of the State; who
absconds or conceals himself; or who incurred the debt in conduct
ing the business oi a ship, steamboat or other watercraft in some Oi
the navigable waters oi this State; or who assigns or disposes of his
property, or some part thereof, or is about to assign or dispose of his
property with intent to defraud his creditors; or who has property or
rights in action which he conceals and unjustly refuses to apply to the
payment of his debts; or who has converted or is about to convert his
property into money or evidences of debt, with the intent to place it
beyond the reach of creditors; or who has fraudulently contracted the
debt or incurred the obligation for which suit has been or is about to be
brought, may be attached. In addition to those named above, the fol
lowing grounds exist: “9. That the defendant is buying, selling, or
dealing in, or has within six months next before the suing out of the
attachment, directly or indirectly, bought, sold, or dealt in future con
tracts, commonly called ‘futures.’ 10. That he is in default for public
money, due from him as a principal, to the State, or some county, city,
town, or village thereof. 11. That defendant is a banker, banking com
pany, or corporation, and received deposits of money, knowing at the
time that he or it was insolvent; or has made or published a false or
fraudulent statement as to his or its financial condition.
Attachments
for debts not due allowed for last six grounds—or when the creditor
has just cause to believe that the debtor will remove himself or his
effects out oi State before debt will be due, with intent to defraud. Non
resident creditors have the same rights of attachment as resident cred tors, whether the debtor be resident or non-resident. Plaintifl must
furnish bond double the debt and make affidavit as to one or more
grounds.
Suit does not abate on verdict f°r defendant on a plea
denying grounds; but judgment on the debt, to be offset by damages
in favor of defendant for wrongfully suing out attachment. Any
creditors may intervene and contest ground of attachment.
Attachment in Chancery on bill against the property, or debts
of an absent, non-resident, or absconding debtor. _ A lien is acquir
y
the suit. If a writ for the seizure of goods is obtained, bond is
required.
Banks. Before beginning business each bank or branch bank must
have a paid up cash capital at least as follows: in towns of jW inhab
itants or less, $10,000: in municipalities of 500 mhab tants or more,
815.000. Addiiional capital to be paid in five «Qual month.) insiallments.
Organizers to make oath that this is complied with No system of official
examination, butall, except National banks, are reQ°’r®d.t°’n®^fitaflr_ePhIfi
not less than four times each year, to the auditor. And the
dates
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 b® known only to
himself. Such reports shall be verified and shall be publishedtin full i a
newspaper of the town or city where the bank is located.
drafts with
liabilities shall be stated in such reports. Banks .conectmg dr^ts with
bill of lading attached must hold funds at least n,n®^’81^0"”
must give notice to administrator or executor of de P f everv
deposits of money and papers held for the deceased. Directors of eiery
bank to hold at least three regular meetings each
keep a com
plete record of all proceedings. Every bank with P®*d p
p
,.
much as 8100,000 may do business “ trust company ^ayactas guard i n
receiver, etc; may execute bonds in legal proceed!^ and
perform the duties of a trust company: may establish a special mutual
loan department; in such department mterest on 1
name by
percent per annum. Bank not permitted to allow the
others in making loans.
Chattel Mortgages and Deeds of Trust may be executed and
recorded as other mortgages. Foreclosuie is ttsttahy
there recorded
property be removed to another county, mortgage m .
Mortgages on
within twelve months to affect purchasers
o7 eoods u
property to be acquired are valid, but not on a chang
Re«frVfttion
the mortgagor remain in possession and cont’>^® mnnev is valid without
of title by the seller of a chattel to secure purchase m
record, even against purchasers without notice.
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 by 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.
Costs. Non-resident or insolvent plaintiff required, to give security.
Courts. Terms and Jurisdiction. Justices’ courts meet twice each
month; circuit and chancery courts in each county twice a year;
supreme court twice a year, in October and March. Justices’ courts
have jurisdiction up io 8200. 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 of 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 850 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.
Creditors’ Bill* 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 of 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.
Curtesy and Dower. Both abolished since 1880.
Days of Grace. 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.)
Deeds. (See Conveyances.)
Depositions in civil cases, on written or verbal interrogatories; ten
days’ notice to opposite party.
11 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 wnere the
same are to be used. Officer’s certificate prima facie evidence of his
character.
Descent and Distribution. Estates of inheritance, real 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. 3. To the father and mother, Or the survivor of them. 4. To the
next of kin 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 whole
blood and those of the half blood, except that children of the whole
blood are prelerred 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 of husband or wife
descends to survivor and children as tenants in common.
General law prevails.
Contracts for sale of land, or for lease
nuire
be in writing. Same in regard to sale of chattels of the value omore
in 850, unless delivery In whole or in part is made
Deau^g^ i
iures is forbidden and a ground for attachment.
®
3 ordinary contracts made on Sunday void.
Conveyances. May vest title presently
purchasers
id greater than for one year must
prohibited, except that
thout notice must be recorded. Estates tan p
donees not exleed or devise may be made to a succession of living donees not ex
ding two and to the heirs of the body o£ tbe."®“^n corporattons
‘ault thereof, to the right heirs of the don
qi,olished
Convevivey under seal. In all other cases private s H b
tenancy
ces or devises to two or more, 0™°,*?'!®°? R-Infl:nder pood without
common. Rule in Shelly’s case abolished.■ Re®®1™,®r.’g™°atoAs a
rticular estate. The words
bar-^^’
inheritance. Words
renantthat grantor is BcIe®d
®®“eeral cot enant of warranty. The
onvey and warrant operate as a genera
warranty only against
rds “convey and warrant specially ’ opetote as a
i grantor or those claiming under ni .
..,7^ together, must
ictically the same effect. Husband and wife iff 1llungw*®™®£™ b8‘
n in conveyance or incumbrance of homestead or eitner, or
j
id as to all over 82,000.
j I
Corporations. C^hr*^^eTtrot Slroads^and the carry- I
Collaterals.
®ron°of an insurance business, other than mutual insurance, may
created under », K®?®?®1
each of the incorporators and
Application £oLcbarl th „ be published three consecutive weeks
knowledged.
It muJ tne
domicile of the proposed corporaa newspaper publishedth
of publication, must be forwarded
,n. The application,
together with the fee for recording. The
the secretary of state
g
opinjon as to the constitutionne to the attornev-ge
posej corporation, after which it is
ty and legality of t e P
approval or disapproval. The
erred to the g°Y®ri\ . ,jje secretary of state with his action
vernor then returns
pprove it, the secretary of state shall
dorsed thereon.
££ J ® rt?fv to the same records, and transmits
lord it in his office andcertify tothe sa^ office q.
to the applicants.
,n which the corporation shall do busiance*3^ court of t e
after the organization, the corporation must
T ^‘^/nOhem^anizatton to the secretary of state. If such
lort S not°mad. tKKir granted shall be void, and all persons
1343
Divorces mav 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 treat
ment. 8. Insanity or idiocy at the time of the marriage if party complain
ing 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 if the 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 andbills 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 ol five days from judgment rendered,
unless recovering party makes affidavit that he is in danger, by delay, ol
losing his debtor demand, in which case execution issues forthwith. No
redemption of property sold under execution or mortgage.
Exemptions.
i
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The following personal property is exempt from
seizure under execution or attachment, to-wit:
The tools of a mechanic necessary for carrying on his trade.
The agricultural implements of a farmer necessary for two male
laborers.
The implements of a laborer necessary in his usual employment.
The books of a student required for the completion of his education.
The wearing apparel of every person.
The libraries of all persons, including pictures, drawings, and paintings, not exceeding five hundred dollar? in value; also the instruments
of surgeons and dentists, used in their profession, not exceeding two
hundred and fifty dollars in value.
The arms and accoutrements of each person of the militia of the
state.
All globes and maps used by the teachers of schools, academies and
colleges.
The following property of each head of a family, to be selected by
the debtor, is exempt:
1344
BANKING AND COMMERCIAL LAWS —MISSOURI.
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.
Five hundred bundles of fodder and one thousand pounds of hay.
Forty gallons of sorghum or molasses or cane syrup.
One thousand stalks of sugar cane.
One molasses mill and equipments, not exceeding one hundred and
fifty dollars in 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
other 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
from 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
inure 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 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
having 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 S3,000 in value by
by filing for record in 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.
:
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Foreign Corporations may do business and sue and be sued as in
case of domestic corporations. (See Corporations.)
Fraud and Fraudulent Conveyances. (See Attachment, Bills Of j
Lading, Limitations, Creditor's Bill.)
Garnishment on judgments or in attachment. Binds debts or
property of debtor in garnishee’s hands.
Grace. (See Days of Grace, and ifotes and Bills.)
Holidays are Jan. 1, Feb. 22, April 26, June 3, July 4, first Monday
in September, fourth Thursday in November, and December 25.
'
Homestead 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.)
Husband and Wife. The disabilities of coverture are abolished, as
are dower and cnrtesy. Husband and wife may contract with and sne
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 of 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 Homestead.)
Insolvency. No general insolvent laws, but insolvent estates of
decedents are divided among creditors pro rata.
In case of insolvency partnership property is applied first to partner
ship debts, and e converso.
Interest. 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 tha property. Lien of
judgment continues seven years.
Jurisdiction. (See Courts.)
Liens. 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 eame, 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 pnce, and
this is good even as against a subsequent bona fide purchaser, without
any writing or record.
Limitations. Open accounts, accounts stated and verbal contracts,
express or implied, three years; all other contracts, six years;
awards of arbitrators, six years; judgment* 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 of 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,
'
!
i
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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 of 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 Women 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 mnst join in conveying or encumbering homestead.
(See also Husband and Wife and Descent.)
Mortgages and Trust Deeds do not take effect as to creditors or
purchasers in good faith and without notice until thev 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 Chattel Mortgages.}
Notaries. Have power to administer oaths, take acknowledgments
and to protest notes and bills. (See Conveyances, and Notes and Bills.)
Notes and Hills 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 of 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 statutory provisions. Governed by general law
In case of insolvency, partnership property must go to pay firm debts’
and e converso. Provision made for limited or special partnerships.
Powers of 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.
Redemption. 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 of disability.
Replevin 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.
Taxes. 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.
Trust Companies. Provision for such companies with general
powers—to administer all trusts, make bonds and the like. (See Banks.)
Warehouse Receipts. (&« Bills of Lading.)
Wills executed by anyone twenty-one years old, of sound mind.
As to land, if not wholly written anil 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
RELATING TO
BANKING AND COMMERCIAL USAGES.
, Prepared and Revised by Messrs. Gage, Ladd & Small, Attorneys at
Law, Kansas City. (Sec Card in Attorneys' List.)
Acknowledgments. 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 peace of the
coifnty in which the real estate is situated. 2. Outside of this State
and within the United States, any notary public, any court having 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................
and..................his wife, to me known to be the persons described in,
and who executed the foregoing instrument and acknowledged that
j they executed the same as their free act and deed.”
Actions. There is in this State but one form of civil action the
practice being under a code. A non-resident plaintiff must file the
I written undertaking of some resident for costs.
BANKING AND COMMERCIAL LAWS—MISSOURI.
Administration of Estates. 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, nor
may non-resident executors or administrators maintain an action in
this State.
Aliens. 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 by an alien creditor at foreclosure sale must be disposed of
within five years.
Arbitration. Parties to a controversy may submit the same to
arbitrators, and their award be confirmed by a court and judgment
rendered thereon.
Arrest. No person can be arrested under civil process.
Assignments. Voluntary assignments must be for t he 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.
Attachments. 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
delav 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. 1 he
plaintiff, his agent, or attorney must make affidavit to one or mo e
these grounds, and the plaintiff, except where the defendant is a non
resident, must give bond for double the amount of the debt.
Banks 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 capita must be sub
scribed, one-half thereof paid up on organization, and the other half
within one year. Directors must be residents of this Istate, l he
receipt of deposits with knowledge of the fact that the bank is ni fa g
circumstances, is punishable by fine or imprisonment, and officers and
agents consenting to the creation of debts with such kno
5 •. .
individually responsible therefor. Not more than -o P' .
.
capital stock must be loaned to any individual corporation Large
powers of supervision and control are vested in the Secre
••
Private bankers must have a paid-up capital of not le.
A revised act approved March 18, 1907, making ma y
g
take effect January 15, 1909.
Conditional Sales of personal property, unless recorded, are void
as to subsequent purchasers in good faith and creditor .
Conveyances. A person may convey title to lands although not
in possession, and although the same be in adverse’
“
interest in real estate granted or devised to two or more Pe™™9 othe
than executors and trustees and husband and wife is a tenancy m
common unless expressly declared to be a Joint te
. mon
ance to husband and wife creates an estate by entir y.
grantor
law. The words “grant, bargain, and se11” coveimnt tlmt thegrantor
was seized of a fee simple indefeasible estate, that it wilom he
incumbrances done or suffered by him or .any person under whomhe
claims; and for further assurances of the title to be made by him and
his heirs. Females of eighteen are considered of
g
Corporations are formed under general law In,th® nPal^ms^be
facturing and most other business corporati »
whole 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.
, jjvjjguja
m„ b« preferred. w-iJwwSJJ “b“«!oEmSt ™
le.s.tan
Cumulative voting is permitted.
Pn= and rcsithree nor more than thirteen; three of thern
stock in full is
dents of the State. A stockholder having paid
st^k
*
subject to no
candiminished by a vote of the stocknoiaers. yuiiu
increased
not exceed the authorized capital stock ani
holders
without the consent of a majority of the st
e Circuit Court for a
of two-thirds in value of the stock may apply to the Circuit court
decree for the winding up of £he business.
cftcretarv of State
A Foreign Corporation must fie m the office
a copy of its charter with a statement ot t P I
receives a
stock invested in Missouri «»cI PM- eerte.n
!li“th?
b h“nll proX in this Su« n»y not bemcum-
bered to the injury of any
except a railroad or telegraph
no mortgage by a foreign corporation e- ®P{jer State is effective as
company, to secure »
-mtU its debts due to resident citizens
against.any citizen of IStot^mtd tte been paid. A corporation
at the time of ^cording the mort^a.ge,g is subject to a fine and cannot
failing to comply with the P . gtate. A corporation of any country
maintain a suit in a court of thwbtauthori7e,, to transact busioutside of the Lnited States
office in the State, where books
“^n1? t5?ls ^tati? mpst
derafi its assets and liabilities, the names
shall be kept, showing l'
officers, directors, and managers,
and residences of its shareholders, .
companies
None of these requirements apply to insurance companies.
Courts Circuit Courts have original jurisdiction in all cases of law
courts, circuityotuv
terms m each year in each county,
and equity and hold* 1
t of estates of deceased persons is vested
Jurisdiction of the sett
t
Justices of the peace have jurisin a Probate Court in each county g
of
diction Ss’sOO Appeal lie from judgments of justices and the Probate
Court to the Circuit Court.
,• «.» r .
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Days of Grace are abolished. (See NegotuMe Instruments.)
taken on notice of at least three days and one
day ad3"ttonal for e“ery fiftymiles of the first 300 and beyond that one
1345
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.
They 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.
Descent and Distribution of Property. 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, and
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.
Divorce. 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 preceding 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
forfeits all rights and claims by virtue of the marriage.
Dower. Dower in real estate 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 by the husband or sale under
judgment or decree will bar dower. The estate by the curtesy exists
as at common law.
Executions. Unless motion for new trial is filed within four days
after judgment, execution issues immediately. Real estate must be
sold during a session of the court which rendered the judgment. Sales
of 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 the purchaser are made at once by the sheriff, no confirmation of
sale being required.
Exemptions. The homestead of the head of a family is exempt,
in the country to the extent of 160 acres not exceeding in value $1,500;
in cities of 40,000, eighteen square rods, not exceeding in value $3,000;
in 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.
The 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 hogs, 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 furniture;
mechanic’s tools; provisions on hand for family use; Bibles and other
books used in the family. Lawyers, physicians, ministers, and teachers
have 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.
Frauds and Perjuries. 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 in 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.
Garnishment. 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.
Holidays. January 1, February 22, May 30, July 1, the
first Monday of September, any general primary election day, any
1346
BANKING AND COMMERCIAL LAWS —MONTANA.
general state election day, any thanksgiving day appointed by the
President or Governor, and December 25 are public holidays; and
when any of them fall on Sunday, the next day is such holidav.
October 12 is also a holiday, known as “Columbus,” but is not such
as respects commercial paper.
Husband and Wife. {See Married Women.)
Interest. Legal rate 6 per cent, but by 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 and
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 compo' nded, but not oftener
than once in a year.
. Judgments and decrees rendered by 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.
Liens. 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.
Limitations. 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. Upon 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 State in which it originated is barred in this State.
Limited Partnership. 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
ot the partnership and have no power to transact its business.
A verified statement of the terms o( the partnership must be filed
with the recorder of the county. There can be no limited part
nership for the business of insurance or banking.
Married Women. A married woman is deemed a femme sole so far
as to enable her to carry on or transant business on her own account, to
contract and be contracted with, to s*e and be sued, to enforce or have
enforced against her property such judgments as may be rendered for
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.
Mortgages. 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 by 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 by the mortgagee
or the mortgage be acknowledged and recorded in the county of the
mortgagor in the same manner a sconveyances 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.
Negotiable Instruments. The General Assembly of this
State nas codified the law of negotiable instruments by 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
by many other states in accordance with the recommendation of the
American Bar Association. It became effective in Missouri June 16,
1905.
Power of Attorney. 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.
Probate Law. {See Administration of Estates.)
Protest. {See Negotiable Instruments.)
Replevin. Goods or chattels wrongfully taken or retained may be
replevied by 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 by 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.
Taxes. 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 by which they may be governed. In some
cases the payment of delinquent city taxes may be enforced by 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.
Wages. (See Garnishments; Exemptions.)
Wills. Every male person twenty-one years of age may, by 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,
may devise their real estate and bequeath their personal property. A
wUl must be in writing, signed by the testator or some person by his
direction in his presence, and must be attested by 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 by 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
may 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 OF THE LAWS OF MONTANA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and JRevised by Wight & Pew, Attorneys at Law,
Helena.
Acknowledgments 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 by the governor for that purpose, a notary
public, or any other officer authorized to take acknowledgments.
3. Outside United States before minister, commissioner or charge
d’affaires, consul, vice-consul or consular agent of the United States
a judge of court of record, commissioner appointed by governor or
notary public. In all cases acknowledgment must be taken withiD
jurisdiction of officer taking.
Must be in substantially following form: “State of-------------- ,
county of----------- 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.
Administration of Estates 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 who
inherits. 8. Public administrator. 9. Creditor. 10. Any person
legally competent. When several claim right and equally entitled,
court appoints, preferring males to females and whole blood to half
blood.
Affidavits 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 by 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.
Aliens and Denizens have same right as citizens to acquire, use
and dispose of mining property and real estate in connection there
with.
Arbitration. 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.
Arrest. Defendant in a civil action may be arrested when about
BANKING AND COMMERCIAL LAWS—MONTANA.
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
by a public officer or a fiduciary, or for fine or penalty.
Assignments. 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.
Attachments. Writ 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 by third person,
may be attached.
Banks. 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-
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 by State auditor, certificate of auditor to be published lour
times in town or county where located. Each director must own at
least ten shares of the bank’s stock. Bank may deal m 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 them. Their liability co tinues six months after a transfer of the stock. Failure to comp y
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
,
per cent of paid in capital and permanent surplus; this does no pp,y
to discount of bills of exchange drawn upon existing values or o
mercial paper owned by person negotiating same.
___
Each such bank must keep on hand funds equal to -0 per c
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. ■
f
for State examiner, who visits and. examines financialJ^dition of
banks yearly. Banks charged certain fees for State exa
hank
Any employee, officer, or agent of any bank or person doing a bank
business, who receives deposits knowing or having reasoin
,
that suck banking institution is unsafe or insolvent, is guil y
y.
and is liable to imprisonment for one to twenty years.
.nnlwo
Banks may be dissolved by district court upon, voluntary apphcaion, or when declared insolvent by State e’tamwCT. Samg bank
corporation may be organized with not less t^***^? ’ cinooOO to
than $500,000 capital divided into shares of S100 each, $100/)00
be subscribed in cash before beginning business. .1. y
patent as
deposit and loan business. Stockholders liability to sa
m Fmeign3 banking corporations may establish branch banks in this
State upon compliance with certain special laws.
h
r. unless
Bank is not liable for payment of forged or raised check unless
claim is made within one year after check is retur
P
positor. [Session 1909.]
Conveyances. Title to property of any kind ^?"btep f re-e™try
aossibility not coupled with an interest), mcludi g
ig
adverse
£
for breach of condition subsequent, and Prope y
, Dersong
possession of another, may be transferred. Dee
„nmrnon unless'
except to executors and trustees, creates tenancy
simple title
expressly declared a joint tenancy in the deed. The fee simple tine
passes by a grant, unless expressly limited te a ess title m the S
Covenants that the grantor has made no
brance by the
person, and that the premises are> free from. incumbrance jy^tne
grantor or any one claiming under him are imp
gA married woman joining with her husband in &any^jnsteug™^
affecting real property is bound thereby the .
.
, Droperty
if duly acknowledged by her. Instruments affecting
may, if acknowledged, be recorded and such record imparts nor
to the world. {See Acknowledgments.)
Corporations are formed under the general storporaHonsPnotaifor
ing, insurance and railroad corporations, a q, JLoiders have one
profit, which are governed by. special laws Stockholder^^ on_
vote for each share, may vote in P^wior
Corporations filed in
late
votes
in principal
director e^^ted
with Secretary
of
county
where
office located, and
an copv
I filedthree
<Q tb;rteen
State; may hold only necessary rra!make by-laws; control business;
directors, who may be empowered to ma
y
limited to unpaid
stock issued for money or prooer V- :
f debts beyond subscribed
portion, directors assenting to creation
qtock are jointly and
capital ’stock or making dividends out of eapita^stock are
severally
stockholder
y •
certificateh£d
passes
transferorliable
powertherefor;
of attorney
to .sell, and deinerym
title, between parties and agams’ cred’tors^may having a capital
books of corporation. Every dome, t
rP ithin twenty days after
stock must file report m county clerk » office witn
stock, amount
December 31st of each year, showing^mount oicap
debts>
paid in cash, and amount P®*<*
p president, vice-pre-ident, genand names and addresses ot directo . pre.
jointly
eral manager and secretary ^tors neglecting
dj
and severally liable for debts exi. t ng
a after default affidavlt
may exonerate himself by filing w ^h t, ^^y president Qr sufficient
showing that during the twenty aay
to his neglect.
directors to file, and
®
insurance companies and corporations
Foreign corporations, c^ept “suranoe* after filing with Secretary
otherwise provided for, may <™tend to do business, copy of charter
of State and in county w
A,ident and secretary, showing name,
and verified statement
P
or property, assets and of what
capital stock, amount paid1 in money dP p t of liabilities; also a
consist, and their actual cash vaffie^ ana
q{
consent to be suedI and 11
-taj increased or diminished must file
and acceptance of sam .
j State and county clerk, and refusal
State. Must within two months
1347
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.
Foreign corporations doing business in this State are made subject
to the jurisdiction of the courts of this State the same as domestic
corporations<and their stock is made attachable in this State. [Ses
sion 1909.J
Courts. 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.
Days of Grace. {None.)
Depositions 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 such person as may be agreed upon Examination of non
residents unless otherwise agreed, must be by written interrogatories.
Descent. 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 their 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.
Divorce 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 by force. 6. Or incurably impotent at
time of marriage. Free co-habitation after knowledge (except in 2d
and 6th cases) works condonation.
Dower. Curtesy abolished. Wife endowed of third of lands owned
by husband during 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,
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
of freehold in lands of life, at least, beginning at death of husband.
Dower is not affected except by wife’s deed.
Execution unless stayed by order of court, may issue at once upon
rendition of judgment; becomes lien on personality upon seizure by
officer holding writ. All property sold to highest bidder. Defendant
or creditor may redeem from sale of real estate within year, or sixty
days after previous redemption.
Exemptions. To head of family, homestead to value of $2,500,
and descends as such to surviving wife or husband and children.
Head of family 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 where
necessary for support of family, except one-half such earnings may be
taken for debts for necessaries. Generally, tools and implements of
trade, libraries, etc., of professional men who are heads of families, are
exempt.
Fraud. It is criminal fraud to attempt to obtain insurance money
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 any 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 necessary; to get
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 sell 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 property
covered by chattel mortgage. Any negotiable instrument procured
by fraud or circumvention to be executed is void even in hands of
innocent holder.
1348
BANKING AND COMMERCIAL LAWS—NEBRASKA.
Frauds, Statute of. Agreement of executor or administrator to
answer for obligation of decedent out of his own estate; agreement
not to be performed in one year; promise to answer for obligation of
another, unless it is made an original obligation of promisory; an
agreement upon consideration of marriage, except mutual promise to
marry; for sale of personalty at a price of over $200, unless part of
price paid or part of goods accepted, except at auction sale when
auctioneer enter sale in sale book; lease for over one year; for sale of
realty, or authorizing broker or agent to sell land for compensation;
is void unless in writing signed by party to be charged or his agent
duly authorized (in writing in case of agreements affecting real estate).
Every transfer of property, or charge thereon made, every obligation
incurred, every judicial proceediag 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 in trust for the benefit of others than
debtor. All declarations of trust in lands ..hall be in writing, except
resulting trusts or trusts created by implication or operation of law.
Husband and Wife. Husband must support wife if able; if not,
she must assis’t, neither has any interest in others property, subject
to foregoing, but neither can be exluded from others dwelling; may
contract with each other, or any other persons, the same as though
unmarried; cannot alter legal relation by contract, except may agree
to immediate separation, mutual consent being sufficient consideration;
may hold property jointly or in common; 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 property
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; Wife 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 in absence of agreement. No usury law.
Judgment of courts of record (including federal courts of county)
if transcript of such judgment if filed in district court are lien on realty
in 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 on realty in any county where
filed in district court.
Liens. Laborers and materialmen have lien, for labor or material,
on property. Must file in county clerk’s office within ninety days
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, including feed and care of animals, has a lien upon such
personality or animals.
Limitations of Actions. 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 in writing, other than a contract, account
or promise, three years; upon statutory liability for waste or tresspass,
detainer of or injury to chattels, ♦or 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
civil 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 claim by
county commissioners, six months.
All cases not specifically mentioned, five years. Statute does not
run during absence of defendant from this State.
Married Women. ’ (See Husband and Wife.)
Mortgages of real estate are executed same as deeds. Husband
and wife must join to bar dower or homestead, except purchase money
mortgages. Non-judicial sale under power valid.
Chattel mortgage must be duly acknowledged, and be accompanied
by 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 by filing affidavit
within sixty days after maturity, stating amount still due, and alleging
good faith, etc.
Negotiable Instruments. 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 order or
to bearer; may be in 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 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 pro 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 in
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 1
after its issue, except a bill of exchange must be presented within
reasonable time after its last negotation.
Alterations, fraudulent 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 foreign bills may be made by 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
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 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 by 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.
This law is nearly if not quite identical with that now in force in
New York, Illinois, and other States.
/
Replevin. 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
the actual value of the property. A demand for the delivery of the
property should be indorsed upon the affidavit and an undertaking in
double the value of the property must be given. The defendant has two
days in which to except to plaintiff's sureties, or he may require the return
of the 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.
Taxes. 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 thar 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 pur
chaser 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 ol
record on the fiist Monday in March of each year. An inheritance tax of
15 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 by payment of taxes, 10 per
cent penalty, 50 cents for publication, and interest at 1 per cent per
month.
Action to annul tax deed must be brought in.two years after date of is
suance. [Session 1909 ]
Wills. 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
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 contemp'ation, 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 Montgomery & Hall, Attorneys at Law, Omaha.
(See Card in Attorneys' List.)
,
Acknowledgments (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, and must be before some court of record or clerk or officer
holding seal thereof, or a commissioner of deeds appointed by the Gov
ernor of this State for that purpose, or notary public, or justice of peace.
If the officer have no seal, then the acknowledgment must have
attached thereto a certificate of the clerk of a conn 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 tbe laws of
such State, district, or Territory. If acknowledgment taken in a foreign
BANKING AND COMMERCIAL LAWS—NEBRASKA.
country, it may be acknowledged before any notary public, minister
plenipotentiary, extraordinary or resident, charge de* affaires, commissioner, commercial agent or consul of the United States. In executing
acknowledgment, notaries public must write in the date when their
commission expires or else said date must be imprinted on their seals.
Actions. Must be brought by real party in interest, except as to
administrator, trustee, etc. Non-resident plaintiff must give security
for costs.
Administration of Estates. (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 unsui able,
or if they fail for thirty days after death of a party to apply ^r •etters,
eame 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
easels ur ent a
special administrator maybe appointed, who shall name r®P°r*
weeks. Personalty is disposed of under direction of the county c u ,
■but to sell real estate, license must be obtained from the district court.
Debts of decedent are a lien upon all real estate.
Affidavit s. (See Depositions.) Affidavits may be made before anyone
authorized to take depositions, and must be ®ub8®£lbedhin
in ,be
the officer aud sworn to before him, and this fact must be «ated i ’• ®
affidavit. If made out of State and the office’- has no seal, affidavit must
have attached thereto a certificate of clerk of a court of record reciting
authority of such officer.
Allens. Non-resident aliens and foreign corporations may not own or
hold real estate in Nebraska, but the widows and heirs ?f s“ch aliens
who held lands prior to March 16 1889, have ten years to■ dwpose of their
interests, and those who acquired their ownership prior to that date may
dispose I>f same during their life. If not so disposed .of, the lands
escheat to the Stole. However, non-resident aliens may acquires ben
upon real estate, and, pursuant or subsequent to s
.
y P
.
such real estate, but shall dispose ol same within ten J
.
acquiring title. These provisions do not apply t r
manlIf.ctUr.
estate upon which buildings are erected
anJ towns
ing purposes, nor to that within the corporate limitrinited States
Aliens who declare their intention to become citize
United
thirty days before an election, conformably to the laws of the United
States oni subject of naturalization, are electors, same as citizens.
Arbitration. Instead of submitting a controversy to a con t,
parties may agree in writing to arbitrators, whose decision, after confir
mation by the court, shall stand as a judgment.
Arrests. Arrest, and imprisonment in civil actions for debt are
abolished.
, ,
_ .
Assisrnments
(See Exemptions, Acknowledgments.)
Every
assignment lor benefit of creditors shaii be made to the sheriff of th^
county, and shall include all property of
assignor excejrt endh as
maybe exempt. Assignments shall be ,executed and Mkno^ed|«i tne
same as a deed to real estate, and within
fflce and if real
execution shall be filed lor record in the county clerk s office, and
ai
estate is mentioned therein, it shall alsoi be
recorded in any other
deeds office, aud within thirty days it shall be recorded n, any oine
county where property conveyed be situated. A creditor may ffie^ana
prove a claim and concurieut therewith, may p
-onvevances
against the assignors for the collection of such claim . ^nveyances
preferences, payments, pledges or transfers o^^^^“Lys
insolvent debtor in contemplation of such 1
7' .. aS8ignor may
prior to making an assignment
except the^gnorylnay
created wiFhin nine months
pay or secure clerks or servants
K^n^lmt^mie Vnd° mTy ^secure^any'debt contracted simultaneously
1349
reports at any time. Failure to make reports entails a penalty of
$50 for each day’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 of the part
nership, 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 ownership of stock, for an amount equal
to the paid-up value of the shares held, and all shares of 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.
Bills of Exchange. (See Notes and Dills of Exchange.)
Bonds. (See Surety Bonds.)
Chattel Mortgages. Every chattel mortgage, il 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 l'aith, 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 mortgagee are good between the parties. It is a felony
to transfer or dispose ol 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 of Estates.)
Commercial Travelers. (See Licenses.)
Code. (See Devision.)
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 writingsigned 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 of 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 attachiug 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 ass’'gn 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.
Contracts. Every contract for the purchase or sale of real estate or
any interest therein, except a lease for a period not exceeding one year
from the making thereof, must be in writing and subscribed by the
party to be charged. Every agreement by its terms not to be per
formed within one year from the making thereof, every special promise
to answer for the debt, default or misdoings of another. Every
agreement, promise, undertaking made upon consideration of mar
riage, except mutual promise to marry, and every special promise of
W1AtXhZn?L8UTbe^^^
an executor or administrator to answer damages out of his own
estate, and every contract for the sale of goods and things in action,
have an attachment against the defendant s p I
erounds: 1. That
for the price of $50, or more, shall be void unless note or memorandum
due, by filing an affidavit showingany’ of’theToUowing gro
be made in writing by the party to be charged thereby. If, however,
the defendant is a foreign corporation or non
e t
countrv or his
when contract for sale of goods and chattels of the value of $50 or
absconded with intent to defraud creditors. 3. Has >eii ui^ himgef’ thflt g
more is made, and a part of the purchase price thereof is paid, or a
residence to avoid the service of sumrno . •. t t0 remove hig property,
part of the goods and chattels are delivered, to the buyer, no memorandum
summons can not be served upon him .. 5.
COurt with the intent to
is necessary. (See Statute ofFraud.)
or a part thereof, out of the Junsdictiorio the co,a part
Conveyances. (See Deeds, Mortgages, Conditional Sales.)
defraud his creditors. 6. Is about to
.
. beyond the reach ot h is
thereof, into money for the purpose of P’a.fong'S^conceals. 8. Has
Corporations. (See Foreign Corporations.) Any number of per
sons may associate and incorporate for the transaction of any lawful
creditors. 7. Has property or rlAh^ ln
”to dis; ose or his property,
business, including the construction of canals, railways, bridges, and
assigned, removed, or disposed of, or is
creditors 9. Fraudulently
other works of internal improvements. Every corporation, as such,
or a part thereof, with intent to’ de^n ,a, ion for winch suit is brought.
has power: 1. To have succession by its corporate name. 2. To
contracted the debt, or incurred the ° >1 g niainHW’B claim, that it is just
sue and be sued, to complain and defend in courts of equity and
The affidavit must f l£ther
1 Veli^ves plaintiff ought to recover. No
law. 3. To make and use a common seal and alter the same at
and the amount which a^ant btlnLndJJit is a foreign corporation, or
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 all 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
Banking.
Any.corporation, partnership!,
bv-laws not inconsistent with any existing law, for the management of its
transact a banking business
* e£vision and control of all banking
affairs. Every corporation previous to the commencement of any busi
State banking board which has supervision a examinergi whose duty
ness, except its own organization, when the same is not formed by legisinstitutions in the State,and• sha
IP
jeast once a I lative enactment, must adopt articles of incorporation and have them filed
it is to carefully investigate the a.
■
$12 000 capital and other
in the office of the secretary of State; and domestic corporations must
year. Savings banks shall have at least
having tohabialso file with the county clerk in the county where their headquarters are
banks shall have a capital as follows- ju c(
$15,000;
located, except mutual insurance companies, building and loan compa
tants up to 1,500, 310,000; over ^^‘“3 000 and 5,000. 825,000;
nies, loan and investment companies, and banking institutions, which
between 2,000 and 3,000 *20.000,
thal] jo.000, S50.000. Such
shall be filed with the State auditor and State hanking board. The
between 5,000 and 10,000, *3d'P0P’ it"re and the bank building and
articles of incorporation must fix the highest amount of indebtedness of
liability to which the corporation shall, at any one time, be subject,
capital shall be in money, hank
, ’ h jj be unincumbered, but
ground on which situated, wh ch ^""XV/to^ther with furniture i which must in no case exceed two-thirds of the capital stock. (Excep
tions made for insurance companies, deposits in banks, loan and trust
in no case shall the bank huihlmg
the paid-up capital, and the
companies.) Must incorporate within one year after organization, or
and fixtures, exceed in value oneexceed in value 10 per cent of
power ceases. Notice must be published iu some newspaper near the
furniture and fixtures alone, sha,
neing business the bank shall
principal place of business, for four weeks. Such notice shall contain.
the paid-up capital. Before
nroposed business to the banking
make a detailed statement of the propose^ charter Every bank
1. The name of the corporation. 2. The principal place of transacting
its business. 3. General nature of the business to be transacted. 4.
board, which, after aPPr°'’jd’ JPtailed reports under oath, showing
The amount of capital stock authorized, and the time and conditions on
must make at least quarterly
mortgages, amount loaned upon
which it is to be paid in. 5. The time of commencement and termina
the amount loaned upon bX„lrafts and other securities, with the
tion of said corporation. 6. Highest amount of indebtedness or liability
notes, bills of exchange, o\ er aam’ount of rediscounts and of cornactual market value thereof, the arnou^^
&t cQSt>
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
mercial paper past due, the a
deposit in banks or trust commust be published within four months from the time of filing such artithe amount of cash on hand an I
(leposited in each, and the
panies, with their nam^and
ther wjth such other information as i cles. Two-thirds of its members may dissolve corporation unless other
wise adopted in articles of incorporation. Copy of by-laws of the corpor
amount of all other assets,
g
summary of such report must be
ation, with the names of all the officers appended thereto, must be posted
the banking board may require. ' j proo{ of such publication trans
in some conspicuous place at the place of doing business, subject to pub-
1350
BANKING AND COMMERCIAL LAWS—NEBRASKA.
lie 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 he jointly and severalty liable for all tne debts 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.
All corporations, whether incorporated under laws of Ne
braska or any other State, must procure a state occupation
ermit from Secretary of State, annually, before they may do
usiness here. Schedule of fees for such permit graduated accord
ing to capital stock as follows: S10,000 cr less, $5.00; $10,000 to
$25,000, $10,00; $25,000 to $50,000, $20.00; $50,000 to 8100,000,
$30.00; $100,000 to $250,000, $50.00; $250,000 to $500,000, $75.00;
$500,000 to $1,000,000, $100.00; $1,000,000 to $2,000,000, $150,00;
over $2,000,000, $200.00. Fee payable July 1 of each year; delin
quent September 1, and $10.00 penalty added. If not paid by
November 30, charter and right to do business in the State are for
feited. If, after such forfeiture, corporation continues to transact
business in the State, liable to fine of $100 to $1,000, imprisonment
of officers or agents from 50 to 500 days, or both fine and imprison
ment. The following are exempt: Educational, religious, scientific,
charitable, banking, insurance and savings and loan association
corporations, and all corporations not organized for pecuniary profit.
Costs. (See Security for Costs.)
Courts. (See Actions, Appeals.) Juvenile courts are established
for treatment and control of dependent, neglected and delinquent
children. Justice and county courts are, lor 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.
Curtesy. Abolished 1907. (See Decedents.)
Days of Grace. (See Notes.)
Decedents. (See Administration of 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-half to husband or wife, if one or no child liv
ing. Residue to blood relatives. 4. If no husband 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. If no
issue nor parents, in equal shares to brothers and sisters and' children of
such deceased, by representation. 7. If no parents nor brothers nor sis
ters, to next of kmiu equal degree, but where there are two or more collateral 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 against estates must be presented within time fixed
by Probate Court, of which no ice is given by advertisement, and is not
less than six months nor more than two years after letters of administra
tion issue. Dower and courtesy are abolished.
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 eviilence 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, butWre usually taken before a notary pub
lic. The oflicer 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 of
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.
Descent and Distribution. (See Decedents.)
Distress for Rent. No authority for it.
. mortgages executed by both husband and wife. If patty has no home
stead as above stated, he shall have exempt the sum of $500 in personal
property in addition to the articles enumerated by statute. Mechanics,
miners, or other persons, whether heads of 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 exceedin'' $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.
Foreign Corporations (see Corporations, Aliens) may become
domestic by filing with the secretary or State a true copy of charter or
articles of 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 June 30,
1906, file with the attorney-general of 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 iu 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 of 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
agent and file name with secretary of State and with register of deeds
in county of principal place of business. Service may be had on such
agent or on state auditor. Secretary of State charges fee of $50.00
for keeping record of agent. Penalty $25.00 fine. Does not apply
to insurance companies and railroads.
Fraud. (See Statute of Frauds, Limitations, Consignments.) Con
veyances made for the purpose of defrauding creditors are void and
intent is deemed a question of fact, not of law.
Garnishment. (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.
Holidays 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.
Homestead. (See Exemptions.)
Husband and Wife. (See Decedents, Divorce, Evidence, Exemp
tions, Married Women, Marriage.)
Infancy. Males under twenty-one and females under eighteen
are infants. County Court appoints guardians, but if infant over
j fourteen years, may nominate his own. Infants’ real estate may be
| sold or mortgaged to obtain funds for maintenance by permission of
District Court.
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■
Divorce. If cause arose within the State, one year’s residence
of applicant required, unless married in State and lived here until
the time of application. If cause arose outside the State, two
years’ residence required. Service by publication only after three
months’ search for defendant after petition filed. Decree final after
six months without action by court, where no further proceedings
had. Causes: Adultery, physical incompetence at time of marriage,
imprisonment for three years or more, abandonment for two years,
habitual drunkenness, extreme cruelty. Wife may obtain divorce on j
ground of husband’s gross or wanton and cruel refusal or neglect to
provide suitable maintenance, he being of sufficient ability so to
provide. Parties may be witnesses as in other civil cases. Alimony
and suit money allowed.
Dower. Abolished 1907. (See Decedents.)
Estates. (See Decedents.)
Executions (see -Judgments, Proceedings in Aid of 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
firmation of such sale. A stay of 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 follows: $10 or under, stay of sixty days; $10 to $50,
ninety days; $50 to $100,six months; over $100, nine months. Land sold j
under execution must be appraised and must bring two-thirds of such
appraisement.
Exemptions. A head of 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 of 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
Insolvents. (See Assignments.)
Interest. 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.
Judgments. (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. Transcriptsof judgments in county and
justice courts become liens from date of 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 of the clerk of thedistrict court
in such counties. A judgment becomes doimant in five years and lien
upon real estute is lost it execution not issued within that time. After
dormancy may be revived by certain proceedings. Dormant judgments
cannot be revived unless action to revive be commenced within ten years.
In judgments by confession cause of action must be stated in the judg
ment or in a writing filed as a pleading. Deficiency judgments have been
abolished.
Jurisdiction. (See Actions, Judgments.)
Justices of the Peace. (See Courts. Judgments, Actions.)
License. (See Insurance Agents.) Commercial travelers are not re
quired to take out a license. There is a provision in the code requiring all
peddlers and commission merchants to take out a license.
Liens. (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 amonht 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 of the account, copies
must be attached. An original contractor must file such statement within
four months from the time of furnishing such material or performing the
labor; a sub-contractor within sixty 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.
Limitations. 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, slander, assault and battery, malicious prosecution, falsa 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 cdfttracts 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,
administrators, guardians, sheriffs, or other officers, and upon statutory
bonds, must be commenced within ten years. If parties under disability,
cause of action does not commence to run until such disability removed.
Actions for damages for causing death must be brought within two
years.
Limited Partnership. (See Partnerships.) Articles thereof must
be in writing, acknowledged by the parties and recorded in the office of
BANKING AND COMMERCIAL LAWS—NEVADA.
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 management or conduct, of the business; otherwise is liable as general partner.
Special partner’s name shall not appear in the firm.
Married Women (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 and con
trol of their own property notwithstanding the marriage. M ay sue and
he sued, carry on trade or business as if unmarried, and earnings of any
married woman are her sole and separate property.
Mortgages. (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 of
property. In case of assignment of mortgage it 16 safer to record the as
signment. If note secured by mortgage is negotiable assignment need 1
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 of §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 p
’ td
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 obtainee, defendant may Btay ^rther
proceedings for nine months by filing »
f’rdecree entered
the clerk of the court within twenty days after such decree; ent. red.
Such stay is equivalent to redemption period allowed in _other .tales
and owner may redeem at any time before confirmation of sale. Deeds
are held to be mortgages when, intended only as secur y,
foreclosed same as mortgages.
Negotiable Instruments. (See Notes.)
Notes and Bills. All notes, bonds, or bills of exchange, except
bank checks and instruments payable on demand are payable at times
fixed therein, without grace; are not negotiable untess drawn payable
to a person, bearer, order, or assigns. If date of m
,
,
partv
or Sunday, or a holiday, are payable on the
business day
y
purchasing negotiable paper before mat uuty. w ith
0,:'ble jn8trUfree from equities between original parties. Uniform x „
ment Law is in force.
„
.
...
Partnership (see Limited Partnerships)
adopt and w|n arnffies
of partnership agreement showing firm name.nat
I>
of
name and residence of each member, and file sa e in
refUgai to
county clerk of the county where business is io cat . 1 o
_
jeeaij ty
comply with this requirement entails penalty, b
of business transacted. Partnership may.
a"d be sued in tne nrm
name, aud it is not necessary to set forth in the Pleading, or prove at the
trial, the names of the persons composing the firm, but in such event
plaintiff must give security for costs.
Pleadings. (See Actions.)
,
Power of Attorney to convey real estate must be executed and
acknowledged same as deeds and may be recorae .
Practice. Regulated by code which is patterned after Ohio.
Probate. (See Courts, Decedents.) County court has exclusive origi
nal jurisdiction of all probate matters.
Promissory Notes. (See Notes.)
.
.
,
Proof of Claims. (See Decedents, Accounts.) Same rules o
dence govern as in civil actions.
Protest. (See Notes.)
,
.
Replevin. Party may recover
a^Iaffldavit of
four years after cause of action accrued by
gP
property, stating
himself, agent or attorney, giving a de®cnp
P ^itjyd t0 tbe
the facts/connected with t&e ownership, and that,Iw w ent
immediate possession, etc., or the proper y
thereafter
officer and duly appraised, and wthin■ twenty^tour £onditioned that
Dlaintiff must give bond in double the apprai
__ thnt mav
'judgment
Revenue. (See Taxes.)
. . ,
Sales. (See Conditional Sales.) Merchant cannot sell in bulk with
out notice to creditors.
Statute of Limitations. (See Limitations.)
Stay. (See Executions, Judgments, Mortgages.)
Suits. (See Actions.)
\
Summons. (See Actions, Attachments, Divorce,
Taxes. Taxes on real property:are a hen tbe^h/rwm from Novemyearof levy. Taxes on personal P^P^y
t o
r fromdateof sale
ber 1, of yearof levy. Tax deed may issue aftertwoyears
;ertlflcate. Inheritance tax runs from11 P
nty may sell the propsstate taxes delinquent one year or more, the county my
jrty by action in court.
Trust Deeds are seldom used and are<rea egound mind
Wills. (See Decedents.) Every Person o
Mt
by tbe tegtator,
may dispose of his property by 'vill, Tome one in his presence and subyr under his express dir®citlon,’by esence of each other, at his request,
scribed in his presence and inthe pre
lincunative wills are valid when
by two or more competent w1^888®8’ uregent at the making thereof, and
iroved by the oath oi three "ltn®88 . 1 ,)erHOns to hear witness that such
7 hen the testator at the; time asked the persons to oe
ff
a] w
1 his will, or words o^bke effect. No wUl.sn
prove(/ d
fNOPSIS OF THE LAWS OF NEVADA
relating to
BANKING AND COMMERCIAL USAGES.
• j k
L Van Derwerker. Attorney and
eCoauDsel£ at Law, Reno. (See Card in Attorneys' List.)
inowledgments may be taken within the State by a judge or clerk
1351
of a court having a seal, or by a justice of the peace or notary public. If
taken by a justice of the peace in any county in the State other than the
county in which the land is situate, a certificate of the county clerk is
necessary, showing he was an acting justice when the acknowledg
ment was taken. If without the State, but within the United States, by
a judge or clerk of a court having a seal, or some notary public or jus
tice of the peace, or by any commissioner appointed by the governor of
this State for that purpose. Provided, that when the acknowledgment is
taken by a justice of the peace, the same shall be accompanied by the
certificate of the clerk of a court of record of the county, having a seal,
as to the official character of the justice and the authenticity of his signa
ture. If without the United States, by some judge or clerk of any court
of any state, kingdom or empire having a seal, or by any notary
public therein, or by any minister, commissioner, or consul of the United
States, appointed to reside therein. An acknowledgement sufficient
under the laws where taken is sufficient in the State cf Nevada.
Actions. (See Limitations.)
Affidavits. Affidavits taken out of this State to be used before any
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
court having a seal attested by the clerk. If in a foreign country such
affidavits shall he taken before an embassador, minister, or consul of the
United States, or judge of a court in such foreign country having a seal.
Aliens. Persons and corporations, except subjects of the Chinese
Empire, have the same rights as resident citizens and domestic corpora
tions, except that foreign^corporations must comply^with corporation
laws of this State.
Appeals. Actions tried in justice court may be appealed to district
courts, where trial 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.
Arbitration. Provision is made by law for the settlement of dis
putes by arbitration; the award of the arbitrators to be filed with the
clerk of the district court and docketed the same as a judgment in civil
action.
Arrest. (See Attachment.)
Assignments and Insolvency. 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
ing with provisions of insolvent laws. An assignment of insolvent debtor,
not in compliance with insolvent laws, is void as to creditors.
Attachment. Writ of attachment may be issued with summons,
or at any time afterward on affidavit and bond. In an action upon a con
tract for the direct payment of money, made, or by the terms thereof
payable, in 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 resid
ing in this State. In an action bya 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 absednd, 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 of 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
in aid of attachment. 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 of 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 of the grounds for an attachment above
enumerated.
Arrest. 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.
Banks. State—are'regulated and controlled by a comprehensive gen
eral banking law.
Conveyances. The husband has the entire management and control
of the community property, with tbe like absolute power of 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.
Corporations. The laws of this State are substantially the same as
those of New Jersey. Foreign corporations to transact business and
institute actions in this State must file certified copy of articles of in
corporation with the Secretary of State and County Clerk.
Courtesy is not recognized in this State.
Courts. Jurisdiction. District courts have original, statutory, and
common law jurisdiction in all cases at law and 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, and in probate in all cases relat
ing to estates of deceased persons, and persons and estates of minors,
insane persons. Justice's jurisdiction, $300, exclusive of interest, and
attorney’s fees.
Depositions. Depositions may he taken within this State before
any judge, clerk, justice of the peace or a notary public, upon notice to
the opposite parly of the time and place of taking. Depositions may
be taken out of the State upon commission under the seal of the court
upon proper application, or by stipulation of the attorneys.
Divorce. Jurisdiction. Plaintiff is required to be a honafide resident
of the county for six months immediately prior to the commencement
of the action, unless the defendant resides or is found and served with
summons and copy of the complaint in the county where the action is
instituted. Grounds—Either impotency, or adultery, or desertion for one
year, or conviction of felony, or habituai gross drunkenness, or extreme
cruelty, or neglect to provide the necessaries of life for one year.
Dower is not recognized in this State.
1352
BANKING AND COMMERCIAL LAWS—NEW HAMPSHIRE.
Executions. Stay of Execution; Judgments. The laws of Nevada
on these points are similar to those ot California [see ante), except
that when redemption is made of real estate, 18 per cent must be paid
in addition to purchase money.
Exemptions. Homestead, $5,000; $50 of the earnings of the debtor,
if earned thirty days preceding, if it is made to appear necessary for
the support of the debtor, or his family; personal and mining property,
tools, implements, etc., exempt same as in California [which see J.
Garnishment. (See Attachment.)
Holidays. Sunday, New Year’s Day, Washington’s Birthday, Memo
rial Day, Fourth of July, October 31st (Nevada admission day), Thanks
giving, and all days on which a general election is held, are nonjudicial days and are termed legal holidays and generally observed as such.
Also Arbor day fixed by proclamation of governor one month before
fixing such date, and is only a holiday for public schools. Bills of
exchange, checks, promissory notes, and other negotiable instruments
falling due upon any holiday aie payable the day previous.
Husband and Wife. (See Married Women.)
Interest. The legal rate is 7 per cent per annum, but parties may
contract in writing for the payment of any other rate. After a judgment
on such a contract, only the original claim shall draw interest, and the
rate of interest must be mentioned in the judgment.
Limitations of Suits. Open or store account and contract not in
writing, four years; upon contract or instrument of writing, six years;
recovery of mining claims, two years; real actions—the person prose
cuting or defending the same must show that he was seized or possessed
of the premises within five years before the commencement or defense of
the action, judgment, or decree of the district court—six years; of the
justices court—five years. Revivor: Acknowledgment or new prbmise
in writing. Judgments become a lien upon real property for two years.
Foreign judgments, contracts, obligations or liabilities for the payment
of money or damages executed or incurred out of this State two years
Married Women. All 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 statute of 1873, the wife
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
by husband. Upon a dissolution of the community by the death of the
husband, the homestead set apart by the husband and wife, or either of
them, goes to the wife and minor children, and if there are 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 of
the community property goes to the wife, subject to administration
and debts of the husband.
Mortgages must be recorded. No mortgage of personal property is
valid unless Dossession is delivered to and retained by the mortgagee,
or unless the mortgage is verified by the oath of the mortgagor and
mortgagee and is recorded in the county where the mortgagor and
mortgagee reside. Recording is equivalent to possession, except that
growing crops and other 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.
Notes and Bills of Exchange. T’he uniform negotiable instrument
law has been adopted in this State.
Probate. All claims against estates of deceased persons must be
filed within three months after the first publication of the notice of
appointment of the executor or administrator. Estates not exceeding
$2,000 in 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 appoint
ment of the executor or administrator. Creditors of such an estate must
file their claims within forty days.
Saits. Practice is under a code, an# 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 mav be had by publication. Personal service of a copy of summons
and complaint is equivolent to the publication of the summons.
Taxes are a lien upon the property assessed and the real estate of the
owner thereof from the first Monday oi 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 Henry A. Cutter, Attorney at Law, Nashua.
(See Card in Attorneys' List.)
Acknowledgments of deeds or other conveyances of real estate must
be made before a justice, notary public or commissioner, or in foreign
countries before a minister or consul of the United States. The sig
nature of the grantor must be attested by two witnesses.
Actions. The common law prevails as to procedure. Non-residents
can institute suit, a resident becoming responsible for costs by indorsing
the writ. Transitory action may be brought in the county where one of
the parties reside. If both are non-residents the action may be brought
in any county.
Administration of Estates. Administration shall be granted in
the following order of precedence; To the executor named; to tne widow,
or any of the next of kin, or to such person as they shall nominate; to one
of the devisees or to a creditor • to such other person as the judge shall
think fit. A non-resident shall not be appointed unless urgent necessity
demands. An ample bond with resident sureties shall be filed. No suit
shall be brought against the administrator within the first year of his
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
of insolvency. Estates may be administered in the insolvent course, and
then 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
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;
sickness shall be paid in full if there remains anything after paying the
preferred claims. (See Arbitration.)
Affidavits. 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.)
Aliens. They are not entitled io 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
of the wife of a native-born citizen.
Arrest. No female can be arrested in any action fourded upon a con
tract or upon a conditional sale of clothing; n.or can a voter on election
day, or a defendant in a real action. The sheriff is exempt from arrest.
(See Attachments.)
Assignments and Insolvency. Assignments for benefit of
creditors to be filed in the probate court of the county in which debtor
resides. The provisions of the law upon this subject are suspendtd by
the United States bankrupt law.
Attach tnents ox 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
of priority, except in case of 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 of 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
of his debts. (See Garnishment.)
Bank. 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 of 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 of each, with the kind
and amount of stocks and bonds held by each, with the par value thereof,
and the cost and the market value at the date of examination. The
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 of 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 of specie in the
vaults; amount of 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 he 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.
Bills of Exchange. (See Notes, and Bills of Exchange.)
Chattel Mortgages. (See Mortgages.)
Collateral. There have been no statutory enactments on this subject.
Pledgee of stock is not liable as a stockholder, but the general owner is.
Conveyances. Every deed and lease, tor 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 of 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 of 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.
Corporations. 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 co $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 of 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,(XX),000; and $200 where it exceeds $1,000,000.
The said charter fee shall be paid when the articles are recorded. The
clerk of every corporation shall be and continue a resident of the State.
And at least one of the directors shall be an actual resident of 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 of the treasurer and a majority of the
directors shall have been recorded with the town deck. 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.
Courts. The superior court has original jurisdiction overall 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
BANKING AND COMMERCIAL LAWS-NEW HAMPSHIRE.
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 third Tues
day of May, and the second Tuesday of November. For the county of
Merrimack, at Concord, on the first Tuesday of 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 at Nashua the third
Tuesday of September. For the county of Cheshire, at Keene, on the
first Tuesday of 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 Gratton,
at Plymouth, on the second Tuesday of May; at Haverhill, on the third
Tuesday of September: at Lebanon, on the third Tuesday of January.
Days of Grace. None except on sight drafts.
Depositions. 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., or............. . att’y of record: Depositions will
be taken at the office of............. , in............
in the County of ........,
and State of ........... , on the .... day of ....... .,19 , at.... o clock in
the............. noon, in which action...............is plff. and ............. is deft.,
to be heard and tried at the............. Court to be holden at ... ...., in the
County of............. , on the .... day of............... 19--. Dated at.............
this .... day of............. . 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
ara 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 m an envelope and
sealed up by the magistrate, with the following endorsement.
“To the Supreme Court.
. .___ . ,
..
Enclosed is the deposition of--------------------- be used In the action
of------------------- vs.----Sealed up by meJustice of the Peace.’
They should then be mailed to the clerk of the
where they are to
be used. No deposition can be used in a JurX .tr?akmmmrarcil
the Tuesday next preceding the Tuesday on which the term commenced^
A copy of the notice with the affidavit of service must be annexed to
the deposition. The following is a form for the caption of the deposition.
“ State of...............
PereonaUy appeared tetoe me, a Justice of the Peace within and for said
County, the within named ............... ..., on the .. day of............... 19..,
/it
.......... noon, at tlie office of............
. o ,
at .... oo’clock
cloc^in t lie County
, and made oath that the annexed deposition
by him subscribed contains the truth, the whole truth, and “ojbing but
the truth relative to the cause for which it was taken. Said deposition
is taken at the request of ............. ............... ■■■ °* "•’
to be used in the ..................... Court, in an action now pend ng (or to be
entered) in said Court, wherein of. etc. is plfl.
deft
taking of the said deposition was begun at .... o clock in the . .._... noon
of said day, and was continued until finished. The said -- ------ - as (
)
resent
pre
serf and did (not) object.
Dated iat"ald.....................this •••; day.Of.::-.-..,-Just9iceof the Peace.”
Descent of Property. The real estate subject to do^« or cuH«.v
and homestead shall descend in equal shares as follows 1. To the chilbeno’issue or father or‘mothSnV^^^
dieTunder^eVl^Mtetef dTrived b^dcsce^t^^derise from
mother, shall descend to his brothers and^lstem, or their rep^semat.^
to law 2 To the same persons who would take as in tne case oi realty
The widow is entitled, in addition to her dower ^d homestead; to on^th rd
her dower and homestead aud by waivnig any proton
doe8
he[
*l\m8ien valuthl survivor, husband or wife, takes the
Tile «ump nrovision exists as to distribution of the per-
E°t ,eXTd
in her husband's estate. (See Dower.)
Divorce The junsdUtton of the court ^1 be confined to action,
when*the action c^enS TXre the hPf» SK
and the defendant was served personally^XanTo^e
the otoer
Ltoed within the SUtJ for one year next preceding the beginning of the
Xer
A-Iiled^xceDtlng^ln^land^ot under mdtiwJurai^rT^a^wwd
husband died seized, ex.
p
-
h dower may be assigned by
KSbr*
produ" ,r“r'’
income equal to one-third of the tot/
.
Fvidonce
Persons are not excluded from testifying because of
Bi ldence. rers
executor, administrator, or guardian
interest, except '* ..; $ tl;e testimony occurred during the life of ihe
83
1353
ceedings, respondent may testify in his own behalf, if he elects, but not
otherwise. Conviction of an infamous crime does not bar the party from
giving evidence but bears upon his credibility. The rules of common law
govern generally the admissibility of evidence.
Executions may be taken twenty-four hours after judgment, and are
returnable before justice’s and police courts in sixty days: before superior
court, at the next trial term of court. Writ of possession issued sixty
days after judgment. A review may be granted by the court when
Injustice appears to have been done through accident, mistake, or
misfortune. Real property taken under execution may be redeemed
within one year.
Exemptions. Homestead to the value of $500; necessary apparel and
beading and household furniture to the value of $100; bibles and school
books in use in the family, library to the value of $200; one cow, one hog,
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
machine; one yoke of oxen, or a horse, when required for actual use;
domestic fowls not exceeding $50; one pew, one lot in a cemetery, and hay
not exceeding four tons.
Fraud. Aside from criminal frauds, the superior court, in the exer
cise ol its equity functions, has jurisdiction over frauds.
Garnishment. Known to our law as trusteeing. Any personal
action except trespass, defamation of character, and malicious prosecu
tion, may be 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.
Holidays. (See (able, page 13.)
Husband and Wife. They may make antenuptial agreements
which can be in lieu of dower, homestead, and distributive share. (See
Arrest, Aliens, Descent of Property, Dower, Divorce, Married Women, and
Wills.)
Interest. At the rate of 6 per cent per annum. If any person, upon
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 therefor;
but 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 of 6 per cent per
annum. 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 12 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 oi fact
to be determined by a trial thereof.
Judgments 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
Devoid. Judgments are rendered on the last day of the term of the
court where The action has been disposed of.
Liens. 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
of 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 of the debt,
may sell the same at auction, fourteen days’ notice of the sale being re
quired, if the value of the property exceeds $100, and a sworn return of
said sale shall be recorded in the office of the town clerk.
Limitations of Suits. Accounts and simple promissory notes six
years after 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.
Married Women 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 in 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 of her
estate as she would be of his estate in case of 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 their 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 of their property by will, but not to affect husband’s
rights, nor can they convey so as to deprive the husband of his right.
Mortgages. Real 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 of law into
the premises and continued actual possession for one year. 2. 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 of 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 of securing the debt specified in the condition thereof and
for no other purpose whatever, and that said debt was not created for the
purpose of enabling 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-residence of the mortgagor,
it must be recorded in the office of the clerk of the town where the
property is situated.
Notes and Bills of Exchange.
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. 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 bepayable
to order or to bearer; and 5, where the instrument is addressed to a
drawee, he must be named or otherwise indicated therein with reasona le certainty. Its negotiability is not affected by a provision which
1354
BANKING AND COMMERCIAL LAWS—NEW JERSEY.
j justice of 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 of deeds.;
, „j
{
Aliens. No restrictions as to holding property. Foreign corporations,
! other than municipal, may purchase, use, ana convey real estate in New
! Jersey. (P. L. 1903, Chapter 22.)
:
Appeals. From justice’s court to conrt of common pleas of county.
J From district court to supreme court on question of law or evidence.
! From common pleas or circuit court to supreme court. From circuit or
! supreme court to court of errors and appeals. Except in first two cases
chiefly by writ of error. From orphans’ court to prerogative court. From
prerogative court or court of chancery to court of errors and appeals.
Arbitrations may by the submission be made a rule of court, con
cluding the parties, by the award.
Arrests. In civil actions, upon contract, a debtor may be arrested
under the following circumstances: 1. When he is about to remove any
of his property out of 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 of 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.
Assignments 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 bydebtors for the benefit of 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 of 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 mav make assignment for the benefit of its creditors.
Attachment. A creditor may attach the property of a non resident
or absconding debtor by making oath to the fact, and to the amount ol
his claim, before any officer authorized to administer oaths or affirma
[ tions. Attachments are for the benefit of all applying creditors, but the
j 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 of 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 de’endant
were liabl'e to arrest. (In actions of tort attachment will issue if sum
mons can be served.) (See Arrest.) 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 an t 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 of a non-resident in transit in the custody of a common carrier
of this or another State.) 2 That cause of action survives against heirs
SYNOPSIS OF THE LAWS OF NEW JERSEY or devisees of decedent, and that some of such are unknown or non
resident and there is property of decedent in this State liable to answer
the cause of action.
RELATING TO
Banks are incorporated under special act. Under certain conditions
may purchase, hold, and convey real estate. Have the same general powers
BANKING AND COMMERCIAL USAGES.
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
Prepared and Revised by Jerome D. Gednet, Counselor at Law,
at least four reports each year to commissioner of bankiug and insurance.
East Orange. (See Card Uh Attorneys' List.)
These reports shall be published in newspaper where bank is located. In
dividual
or private bankers are subject to the supervision and control of
Acknowledgments of deeds are made within the State before the
the Department of Banking and Insurance. (See P. L. 1899, p. 431.)
chancellor or a justice of the supreme court, a master in chancery,
attorney at law, judge of the court of common pleas, commissioner of
Chattel Mortgages. Chattel mortgages to be valid must be ac
deeds, surrogate of county, or a deputy surrogate, or register of deeds,
knowledged as deeds and affidavit of the consideration must be made by
county clerk, or deputy county clerk during his continuance in office; | the
mortgagee. They must be recorded. In case household goods are
without the State, before a justice of the supreme court of the United
mortgaged, the wife must also join.
States, circuit or a district judge of the same, or a judge or justice of
Collaterals. As security lor loans, regulated by commercial law.
the supreme or superior court or chancellor of the State, district, or
Pledges cf property to pawnbrokers regulated bvstatute.
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
Contracts. The following must be in writing: Leases for a longer
poration, or before a judge of the court of common pleas or county court
term than three years. Assignments, grants, or surrender of leases. Dec
of such State, district, or territory, or commissioner for New Jersey, or
larations or creations of trust (does not interfere with implied or con
by a master in chancery, or attorney at law of this State, or by any officer
structive trusts), grants and assignments of trusts. Special promise of
authorized at the time of such proof or acknowledgment, by the laws of
executor or administrator to answer out of his own estate. Special prom
the State wherein the same shall be made or taken, to take the acknowl
ise to answer for the debt, default, or miscarriage of any other person. To
edgment of deeds of lands lying and being in such State. In case
charge any person upon any agreement made upon promise of marriage.
the acknowledgment is made before a mayor or chief magistrate, the
Contract or sale of lands, tenements, or hereditaments or any interest in
certificate must be attested by the seal of the city; if before a judge
or concerning them
Any agreement not to be performed within one
of the court of common pleas or county court, or other officer, it must
year of the making thereof. Contract for the sale of goods of the value
be attested by seal of such court, and certified by the clerk of the court.
of $500 or upward (acceptance of part of the goods or payment of part
If before an officer not enumerated but authorized as above stated, it
of the price obviates necessity of writing); applies to sales for goods to
must be certified that he is such officer and authorized, at the time of
be made as well as such are in existence, unless goods are to be made
taking such acknowledgment, to take acknowledgments and proofs of
especially for purchaser and are not suitable for sale to others in
deeds or conveyances for lands, tenements, and hereditaments in the
ordinary course of seller's business. Promise made after coming of
State in which the acknowledgment was taken. In foreign countries I age to pay debt contracted in infancy. Promise of bankrupt to pay
acknowledgment or proof may be made before a master in chancery, j after discharge Commissions to broker or real estate ageut, authority
any court of law, notary public, mayor, or chief magistrate, or any ' to sell must be in writing and rate of commissions stated. In case of debts
ambassador, consul, consular agent, or other representative of the
fraudulently contracted, suit mav be brought for recovery as soon as the
United States.
fraud is discovered, notwithstanding debt may not be due.
Actions which arise from breach of contract are entitled “ upon
Conveyances. Usually bargain and sale or warranty. Must be ac
contract”; for damages to person or property "in tort.” The former
knowledged to be recorded. (See Married Women.)
covers the common law actions assumpsit, covenant, debt; the latter,
detinue, trespass, trespass on the case, trover. The actions of replevin
Corporations. Corporations are formed under tne general act; how
and ejectment are not within the purv.ew of the rule and are to be i ever,
insurance, safe deposit or trust comptnies, banking corporations,
entitled as such.
savings banks, railroad companies, or turnpike companies, or such other
Administration of Estates. Wills are proved before the ordi- j companies which intend to derive profit from :he loan or use of money,
nary of the State, or the surrogate ol the county, and letters testamentary
or which shall need to possess the right of taking or condemning land,
are granted. In case there is no will, letters of administration are granted.
must be incorporated under special act governing such companies. The
Should there be a contest of the will or dispute as to the right of { certificate of incorporation shall be signed personally by all subscribers
administration, the orphans’ court has power to act. This court is also
to the capital stock and set forth: 1. The name of the corporation. 2.
the proper tribunal for all disputes in matters of estates, is the auditor
The location of its principal office in the state. 3. The object or objects
of all accounts, and has varied powers in matters regarding estates, such j for which the corporation is for med. 4. The amount of the total author
as the right to appoint trustees under a vill, partition where minors
ized capital stock of the corporation, which shall not be less than $2,000,
are interested in lands, etc.
the number of shares into which same is divided, and the par value of
each share. The amount of capital stock with which it shall commence
Affidavits In the State may be taken before the chancellor, judge of
court of record, master in chancery, Attorneys at Law of New Jersey, , business to be not less than $1,000, which may be paid either in cash or
authorizes the sale of collateral securit’es in case the instrument be not
paid at maturity or authorizes a confession of judgment if the instrument be Lot paid at maturity: or waives the benefit of any law intended
eor the advantage or the protection of the obligor; or gives the holder an
flection to require something to be done in lieu of payment of money.
To charge indorser, notice of non-payment most at once be given to him.
Time of Maturity. Every negotiable instrument is payable at the time
fixed therein without grace. When the day of matuiity falls upon Sun
day. or a holiday, the instrument is payable on the next succeeding
business day. Instruments falling due or becoming payable on Saturday
are to be presented for payment on the next succeeding business dav,
except that instrument s 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. (See Holidays.)
Power of Attorney. (See Conveyances.)
Probate Law. The probate court is a county court, and holds numer
ous sessions in various places. Proceedings are begun by petition and cita
tion issued. The citations are served twelve days before the return day.
The 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 in a will; in the appointment of appraisers of an estate; in
licensing the sale of real estate under $200 in value, or where the heirs
consent in 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 of Estates, Courts,
Descent of Property, Dower, Married Women, and Wills.)
Protest. Notaries public are the proper protesting officers. Notice
of the non-payment or the non-acceptance upon residents by mail is suffi
cient. (See Notes and Bills.)
Keplevin may be brought to recover goods or chattels in specie. The
question of right of possession being in issne, the plaintiff shall give
bond to the sheriff in a sum not less than double the value of the property
to be replevied, to pay such damages as may be awarded against him.
If the defendant shall prevail he shall have judgment for the return of
the goods, and other damages, or for their value.
Taxes become a lien upon the realty simultaneously with their assessment (April 1 of each year). One year from the day of sale is allowed
in which to redeem land sold for taxes, costs of sale and interest at the
rate of 12 per cent per annum being added. A succession or inheritance
tax of 5 per cent upon inheritances by collateral heirs, is collected through
the Probate Courts.
Wills. 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 in his presence by three or more credible witnesses. Can be
in 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.
BANKING AND COMMERCIAL LAWS—NEW JERSEY.
property, and if there he more than one class of stock created by the 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-offii e address of incorporators and the number of shares sub
scribed f >r by each, the 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 flcate 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 constitutes
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 lie'. 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 capi’al stock, r oreign corpo
rations are subject to the provisions ot 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 ^tate
until such certificate is obtained. Foreign corporations, other than
municipal, may purchase use, and convey real estate in New Jersey.
Associations not for pecuniary profit may incorporate under special law
providing for such incorporation. A copy of the corporation law of the
State, with lull forms and instructions lor 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 Ne v
Jersey Registration and Trust company, 525 Mam street, East Orange, N. J.
Courts. Terms and Jurisdiction. Circuit courts and courts ot 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, excent
that the court of common pleas has nojurisdictoon^ere title to lands
comes into question. The supreme court, hoiding thr^terrns a year at
Trenton, has also original jurisdiction in all cases, ')U.t mP8t.
$~0
to carry costs. Court of chancery has exclusive equity jurisdiction,, and
sits at Trenton three times a year. District court jun sdicti’^’Co-exten
sive with county, in amounts $500 or under; justices court 3 oidc
j
co-extensive with county, in amount *200 or less. In c.
•,
trie* courts are established and defendant or Ju‘tlce °f V*®,
on
within the limit?of said city the justices court has
C’Vil J"r'8fd^I0°
whatever. (See District Court Revision, P. L. 1898.) The court ol 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.
Days of Grace. Abolished since July 4, 1895, unless stipulated to
the contrary.
x
Depositions of material witness residing m the State, who is
ancient, or very infirm, sick, about to go out
’
from the State, may be taken de bene esse before a judge R
Rner%r
court, judge of the court of common pleas, suPJe“e
TOmm^mn^ or
master in chancery, on notice to adverse party- Of
" *tnteb ® rRRt
tntrnnf of the State bv virtue of a commission issued out or tne court
Xe
which !h? actio?is pending either on
X”
notice. The commissioner must first take and sign an oath faithfaHy
fairly, and impartially to execute the Brtld commission before tuiyomcer
authorized to take an oath. Such depositions
- common pleas
Judge of the supreme court, or district court, or court of common p^eas,
commissioner of deeds appointed by the go
exclusive of
Jersey resident where the witness
°n notice
one day, davs in ah
Sunday, for every fifty miles of travel and n t
, jeno.tb oj
If the witness resides on the Pacific coast, th
forty davs’ notice
notice. If in a foreign state or kingdom not less
days notice
must be given. (See Jefferey’,, l£W Puente, £260. et seep, .nfl
inson s Chancery Precedents, p. 217, et seq.,
Descent and Distribution. Descent: 1 To eWidren^and ctaS
children, and so on, that is, lineally, od> their issue 3 In default of
to brothers and sisters of the whole ^'^Lpritance caine from the mother
classes 1 and 2, to the father unless the mhe
fK>m tbc mother
by descent, devise, or gift. 4. In deraud oc
br’others and 8i8ters of
for life. 5. In default of the former
•,■ • ti „:nuer;taTjQg came from the
the half blood and children of 8«ch provided the tnhenUnce catme fro
common blood or by purchase..6. In
aid defauU of a)] above claaae8
•ons of equal degrees of
iADie. Escheat to State after ah
to the husband or wife, J.f “pmtribution • 1 One-third to widow, residue
above claims are exhausted, pietribuuon.jchj]dren AdvanCement8 and
to children and legal representatives of s
advanced or receiv•ettlements are to be deducted from.share R effi'dX half to widow,
ing settlement. 2. If no children or legal
equallv< and jf no
residue to next of kin 3 If
w>dow. Representatives 4. If father be
children then to next of kl”
^hildren in lifetime of mother, every
dead and child die without widow o
bave equal gbare with mother,
brother and sister and representat children die without leaving husband
5. If mother of illegitimate;child or children^wiib^ g The estate
or lawful issue then illegitimate cl 1 8L®'*W or lawful igpue shall go to
of illegitimate child dying w
intestate leaving widow but no kinmother. 7. Where person has died intotate* .e.
g
undjgtributedi
dred or relatives capable of taking es
,
egtate g. The estate of
I. i, now. eivn »f”
wWow « kiXd“ “el.tlve.,«ft«one ,.a,
person dying without leaving w uo
annuallv to treasurer of city
or tovras^ip^Seven years a^rdecSoe>all claims are barred.
Divorce'.'
,
<»un of
band or wife living. Rar 'es
aIld obstinate desertion for
Impotence. Adultery. W fuL c
extreme cruelty. For first three
two years. From bed and boa 1nu,)ltv will be made in certain caaes
nn“i“ ixteen o? hu.b.nd und.r olgl.Wm M time ot marri.ge.
Dower. tVidowentigmon^to^
her husband was 8eRed d
„ properly executed and acknowledged.
linquishment or release by deea, proper/
(See Descent and Distribution.)
Executions issue immediately upon a rendition of judgment, and are
1355
returnable either in term or vacation. An execution and levy upon a
junior judgment takes 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
stay of execution, except on those which are issued out of 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 case of judgment by confession and defendant giving good and suffi
cient freehold security. There is no redemption after sale 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 wlpch
he shall state the amount due on said execution, the return made, and
his belief that the debtor has property in his own right over and above
that 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 he 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 of 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.
Exemptions. The lot and building thereon, owned and occupied by
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
lor 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
ing apparel, owned by a resident head of a family, appraised by three
persons appointed by the sheriff; and the widow or family of a deceased
person may claim the same exemption of $200 as against the creditors.
Family of absconding debtor may claim exemption of $20J as above.
Frauds. (See Contracts.}
Garnishment. (See Attachment.}
Holidays. Legal holidays are: January 1st, commonly called New
Year’s Day; February 12th, called Lincoln’s Birthday; February22d, known
as Washington’s Birthday; Good Friday; May 30th, known as Decoration
Day; July 4th, called Independence day; first Monday of September, known
as Labor Day; October 12th, known as “Columbus Day ”; December 25th,
known as Christmas day; Thanksgiving Day, and any general election
day. If any of these days happen on Sunday the holiday is kept Mon
day. Every Saturday from 12 o’clock at noon to 12 o’clock at midnight
is a half-holiday.
Husband and Wife. (See Married Women.)
Interest. Legal interest on debts and judgments, 6 per cent. Usury
is punishable by forfeiture of all interest and costs. Interest on an open
account accrues on each item from its date, as at common law. No cor
poration can make defense of usury.
Judgments become a lien on lands from time of actual entry, and
so remain for twenty years. Where there are several judgments, that
under which the first levy is made takes priority. Judgments recovered
or docketed in the supreme court are a lien on all lands of defendant
within the State. Judgments recovered before a justice of the peace may
he docketed in common pleas, so as to be a lien upon lands. Decrees in
chancery may be enrolled in supreme court; when so recorded, have
effect of judgment recovered therein.
Limitations of Suits. Contracts not under seal, six years; real
actions and judgments, twenty years; notes secured by mortgage and
contracts under seal, sixteen years.. Revivor: Part payment or new
promise or acknowledgment in writing.
Married Women hold and control their property, real and per
sonal, precisely as if unmarried. But a married woman can not be
come an accommodation indorser, guarantor, or surety, except under
certain conditions. (See P. L. 1895, p. 821.) She cannot convey or
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
such marriage, or her husband is unable to join through lunacy or
other mental incapacity, or in case an assent to the same has been signed
and acknowledged by the husband. A married woman may make a will
of her separate estate as if she were sole, but can not defeat her hus
band’s interest in her real estate, although she can make absolute
disposition of her own private personal property without regard to her
husband. A married woman who is an executrix or trustee may convey
lands of testator without husband joining. A married woman may
execute a valid conveyance of life estate. (See Dower.)
Mortgages. Unless to secure purchase money, wife must join. A
married woman cannot execute any mortgage without husband. Fore
closure is by action in equity. Chattel mortgages are absolutely void as
against creditors and subsequent bona fide purchasers and mortgagees,
unless the mortgage is acknowledged or proved according to law and re
corded, or unless the mortgage is accompanied by immediate delivery
and followed by continued change of possession of mortgaged property.
Foreclosure of chattel mortgages is usually effected by seizure aud sale,
although may be foreclosed in equity. Chattel mortgages must have an
affidavit annexed, setting out the interest of the mortgagee, consideration
of the mortgage, and the amount due and to grow due thereon; said
affidavit to be made by the holder, or his agent or attorney. Chattel
mortgages upon household furniture in the use of the family, unless
given for the purchase thereof, must be executed and acknowledged by
both husband and wife.
Negotiable Instruments. '^(See Bills of Lading and Promissory
Notes.)
Powers of Attorney for sale of land in which married woman
Joins, must contain a full and particular description of the lands, tene
ments, or hereditaments authorized to be conveyed.
Probate Law. (See Administration of Estates and Wills.)
Replevin requires bond from party issuing the writ. Officer holds
for twenty-four hours, during which defendant may give bond and retain
the goods, when the case proceeds. In the same suit damages may be
recovered. If no bond is given, goods are delivered to plaintiff.
Suits are commenced by writs of summons, capias, warrant, or at
tachment. Service by publication may be made in equity only, and in
common law courts, in case of a foreign corporation, if service can
not be made on officers or agents, directors, clerks or engineers.
Taxes are and remain paramount liens,except as to taxes subsequently
assessed, from and after December 20th following assessment. Taxes
due and in arrear September 1st next after assessment may be collected
by sale of land. Right of redemption extends two years from sale.
1356
BANKING AND COMMERCIAL LAWS—NEW MEXICO.
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.
Wills. There are four requisites to make a valid will in this State.
They are: 1. That it be in writing. 2. That it be signed by the testator.
8. 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.
Prepared and Revised by Felix H. Lester, Esq., Attorney at Law,
Albuquerque. (See Card in Attorneys' List.)
Acknowledgments. (See Conveyances.)
Actions. The practice in this Territory is the code modified by rules
of court. All civil actions in district courts are brought as follows: All
transitory actions shall be brought in the county where either the
plaintiff, or defendant, or some one of them, resides, or in the county
where the contract sued on was made, or is to be performed, or where
the cause of action originated, or indebtedness sued on was incurred;
or in any county in which the defendant, or either of them, may be
found, in the judicial district where the defendant resides. When the
defendant has rendered himself liable to a civil action by any criminal
act, suit may be instituted against such defendant in the county in which
tbe offense was committed, or in which the defendant may be found, or
in the county where the plaintiff resides. When suit is brought tor the
recovery of personal property, other than money, it may be brought as
herein stated, or in the county where the property may be found. When
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
portion thereof, is situated. Suits for trespass on land shall be brought as
provided for in transitory actions, or in the county where the land, or any
portion thereof, is situate. Suits may be brought against transient persons
or non-residents in any county of this Territory.
not be less than $30,000, of 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 of their respective shares,
sxcept 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.
Bills of Exchange. 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.)
Bills and Notes are assignable as at common law, and the
assignee thereof can bring suit in his own name. On a joint and several
note, anv 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 noliday is, under statute, payable on the next
business day thereafter.
Chattel Mortgages. 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
of one year from said filing and each year thereafter, said mortgage be
continued bv affidavit of mortgagee, his agent or attorney, filed with
mortgagee, showing interest of mortgage and amount still due.
Claims Against Estates. 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
Administration of Estates. Letters of administration are granted
the district court, which appeal must be taken within 90 days from
in the county in which the mansion, house, or place of abode of the
the decision of the probate court, and within eighteen months after the
deceased is situated, or in the county in which lands of the decedent
appointment of the executor or administrator. Claims have preference as
are located, and in the absence of all these, in the county where the
deceased died. Letters are granted, first, to the husband or wife surviv- i follows: 1. Expenses of administration. 2. Expenses of funeral and last
sickness. 8. Allowance for maintenance of widow and children. 4.
ing; secondly, if there be no husband or wife surviving, to those who are
Claims preferred by the express provision of the United States or terri
entitled to distribution of the estate, or one or more of them, as the probate
torial laws. 5. Taxes. 6. All other debts. 7. Legacies. A claim against
judge shall believe will best manage the estate; thirdly, to any creditor
an estate on account of matters occurring during the lifetime of the de
thirty days after the death; fourthly, probate judge may select a suitable
ceased cannot be allowed on the uncorroborated evidence of the claimant.
person. The probate court has exclusive jurisdiction, and from all its acts
an appeal lies to the district court. (See Claims Against Estates.)
Conveyances. All conveyances of real estate shall be subscribed
Affidavits. Affidavits to be used in court may be taken before any
by the person transferring his title or interest in said real estate, or by his
person authorized to take acknowledgmtnts.
legal agent or attorney. Every instrument in writing by which real estate
Is transferred or affected, in law or equity, shall be,acknowledged and cer
Aliens. By statute of the Territory, foreigners have the same right to
tified to in the manner hereinafter prescribed. T he acknowledgment of
own and dispose of real estate that citizens of this country enjoy, and
ail conveyances or writing affecting any real estate, in law or equity, shall
property descends to their heirs and is controlled by their executors and
be taken before any of the following named officers: If the acknowledg
administrators in precisely the same way. ( See Act of Congress, July 20,
ment is made within the Territory it stall be made before any (1) clerk
1886.)
#
of the district court, (2) judge of probate court using probate seal, (3)
Arbitration. All litigants shall have the right to terminate their suits,
notary public, (4) justice of the peace. If taken without the Territory
in whatever condition they may be, by means of arbitrators. The arbi
and within the United States, the acknowledgment to be taken (1) before
trators shall eifter into an agreement (the form for which is provided by
a clerk of some court of record having a seal, (2) a commissioner of deeds
duly appointed under the laws of this Territory, (3) a notary having a seal.
statute) to submit their differences to arbitration, and the arbitrators shall
receive proofs and hear arguments of counsel, and render sentence as the
If acknowledged beyond the limit of the United States, it shall be done
majority of the arbitrators may decide, and any of the courts will enforce
before any (1) minister, commissioner, or charge d’ affaires of the United
States resident and accredited in the country where the acknowledgment is
the decision of the arbitrators by issuing execution thereon.
made, (2) consul general, consul, vice-consul, deputy consul, consular agent
Assignments. Under chapter 67, laws of 1889, insolvent debtors may
of the United States, resident in the country where the acknowledgment
make assignments for the benefit of their creditors. No preferences are
is made, having a seal, (3) a notary public having a seal. Husband or
allowed, but the assignment inures to the benefit of creditors generally, pro
wife may convey their separate estate without consent of the other and
rata. The court may upon proper application compel the assignee to
husband has sole management and disposal of community property.
surrender the property to a receiver to be appointed by the court. The
No seal or scroll necessary to the validity of conveyances except by cor
claims of creditors to be verified by the oath of the creditor, his agent, or
porations.
attorney. Assignee is required to settle up the estate within twelve months.
Corporations. By act of congress, approved March 2, 1867, legis
Attachment. Creditors whose demands amount to $100 or more
lative assemblies of the several Territories were prohibited from granting
may sue their debtors in the district court, by attachment in the follow
charters of especial privileges, but were authorized to pass general incor
ing cases, to wit: 1. When the debtor is not a resident of nor resides in
poration acts to permit persons to associate themselves together as bodies
the Territory. 2. When the debtor has concealed himself, or absconded,
corporate for certain purposes named. Any three or more persons may
or absented himself from his usual place of abode in this Territory,
form a corporation for mining, manufacturing, or other industrial pursuits,
so that the ordinary process of law can not be passed upon him. 8. When
or the construction and operation ol railroads, wagon roads, irrigating
the debtor is about to move his property or effects out of this Terri
ditches, and the colonization and improvement of lands in connection
tory, or has fraudulently concealed or disposed of his property or effects,
therewith; or for colleges, seminaries, churches, libraries, or any benevo
so as to defraud, hinder, or delay his creditors. 4. Wnen the debtor
lent, charitable or scientific association. To do so they must make, sign,
is about to fraudulently convey or assign, conceal, or dispose of his
and acknowledge—before some officer competent to take the acKnowleagproperty or effects, so as to hinder, delay or defraud his creditors. 6. When
ment of deeds—a statement in writing (for the filing of which the
the debt was contracted out of this Territory, and the debtor has absconded
Territory is entitled to graduated fees), setting forth the full names
or secretly removed his property or effects into the Territory with intent to j of such persons; the corporate name of the company; the objects for
hinder, delay or defraud his creditors. 6. When defendant is a corporation
which it is formed; the amount of its capital stock; the time of its exist
whose principal office or place of business is out of this Territory, unless
ence, not exceeding fifty years; the number of shares into which the capital
such corporation shall have a designated agent in the Territory, upon whom
stock is divided; the number of directors and their names, who shall
service of process may be made in suits against the corpoiation. 7. When
manage the affairs of the company for the first three months, and tbe name
the defendant fraudulently contracted the debt, or incurred the obligation,
of the city, or town and county in which the principal place of business of
respecting which the suit is brought, or obtained credit from the plaintiff
the company is located; the amount of the capital stock with which
by false pretenses. An attachment may issue upon a demand not yet due,
it will commence business, which shall not be less than $2,000,
in any case where an attachment is authorized, in tbe same manner as
and if there be more than one class of stock created by the certifi
upon demands alieauy due. The attacmng creditor must file with the clerk
cate of incorporation, a description of the different classes, with the
of the court a bond with two or more sureties in double the amount of the
terms on which the respective classes of stock are created; the
claim, and an affidavit sworn to'by plaintiff or some person for him, setting
names and post office addresses of the incorporators and the number
ont the amount of the claim, that it is due after allowing all just credits and
of shares subscribed by each, and shall also give the name of the
offsets, and on what account; and that affiant has good reason to believe,
agent in charge of the principal office upon whom process can
and does believe, in one or more of the causes for attachment hereinbefore
be served. There shall b, at least three directors in eacn company,
set forth. Any person having property or effects of defendant in his hands
and a majority of them citizens of the United States, and at least one' may be garnisheed. The attachment may be dissolved by denying and
third residents of the Territory. And after the expiration of the term of
successfully contesting the truth of the ground of attachment specified in
those first selected (three months), they shall be selected annually by the
the affidavit, and then the suit proceeds as an ordinary action.
stockholders from among their number. A majority of the whole number
of directors form a quorum for the transaction of the business. When the
Banks. By an act of legislative assembly any number of persons not
less than three, may associate to establish a bank; the capital stock shall
certificate has been filed the life of the corporation begins, with all the usual
©
BANKING AND COMMERCIAL LAWS—NEW MEXICO-
1357
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.)
liabilities and powers. The stock of the corporation is personal estate.
There is no personal liabilities upon stockholdere if stock is paid up. except
where debts are incurred in excess of the capital stock. The stock of a
stockholder may be taken on attachment or execution. The capital stock
Garnishment. All persons and corporations are subject to garnish
may be increased or diminished by a vote of two-thirds of the shares of
ment for moneys of a debtor in their hands, and a failure of the garnishee
stock at a meeting of the stockholders, called for that purpose, upon four
to
appear and answer, subjects the garnishee to a proceeding for con
weeks’ notice, signed by a majority of the directors. Foreign corporations,
tempt. (See Attachments.)
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
Holidays. Sundays, Christmas, New Years, Fourth of July, and
county in which the principal place of its business shall be a copy of the
such other days as may be designated by the government as holidays.
laws under which they are chartered, and a certified copy of their charter,
Homesteads. (See Exemptions.)
and also a certificate signed by the president and secretary of such com
pany, duly acknowledged, designating the principal place where the busi
Husband and Wife. (See Divorce and Dower.)
ness of said company shall be carried on, and an authorized agent or
agents residing at said principal place of business upon whom process
Insolvent Laws, (See Assignments.)
may be served. Railroad corporations come under a separate head with
Interest and Usury. Six per cent interest is the legal rate of inter
peculiar privileges and restrictions.
est in absence of contract, but parties may agree in writing for any rate
Costs. Security for costs or a deposit of money in lieu thereof Is
of interest not exceeding 12 per cent. Open accounts bear interest at
required ot plaintiffs, in the discretion of the court.
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
Courts. District courts hold two terms a year in all the counties, and
of any specified rate, 6 per cent.
have unlimited common law and chancery jurisdiction, there are
probate courts with the usual powers, holding six terms a year. District
Judgments. Money judgments of the district court for the counties
courts are at all times in session for the transaction of all business except
of Santa Fe, San Miguel, Bernalillo, Socorro, and Dona Ana, are liens on
real estate of the judgment debtorfrom the date ofrendition, if within sixty
jury trials.
days after rendition of such judgment a transcript of the docket of such
Days of Grace. (See Bills and Notes.).
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
Depositions. Depositions of witnesses to be used in any court in this
counties of the Territory and of the supreme court of New Mexico becomes
Territory in all civil cases, and proceedings may be taken m the
a lien upon the real estate of the judgment debtor from the date of the
cases: 1. When by reason of age, infirmity, sickness or official
it is
filing of a transcript of the docket of such judgment in the office of the
probable that the witness will be unable to attend the court 2. When the
recorder of the county in which the real estate is situated.
witness resides without the Territory or the county in which the s t Is
pending. 3. When the witness has left or is about to 1“'e.th®
Jurisdiction. Justice courts have jurisdiction to the amount of $100.
county in which the suit is pending, and will probably not be present at the
District courts have unlimited original jurisdiction. Probate courts hold
trial. ' Depositions may be taken on interrogatories and cross interrogator!es
six
terms annually, and have ordinary probate jurisdiction. District courts
attached to a commission to be issued by tne clerk of the court or Justice
in certain counties also sit for the trial and hearing of causes arising under
of the peace, and may be taken within the Territory by a d«tnct judge
the
constitution and laws of the United States. District courts and pro
clerk of district court, clerk of probate court or anj notaryjmbli&of the
bate courts are courts of record.
county where taken. They may be taken without.the Terr tory by any
clerk of a court of record having a seal, by a notary P“bhc or & com
Liens. Every person performing labor upon, or furnishing materials
missioner of deeds duly appointed under the laws of thisJcn-itory and
to be used in the construction, alteration, or repair of buildings, etc., has
residing within the State or Territory within which the w ltness is alleged
a lien upon the same for the work done, or for the materials furnished,
to be or resides The officer to whom the commission is addressed is
but every original contractor claiming the benefit oi the lien law must,
Authorized ?o issue subpoenas for witnesses, and upon thew aPPearance
within ninety days after the completion of any building, etc., file with
and take and reduce to writing their answers to the mtewogatories, w hich
the county recorder a claim showing the amount of his demand remainshaJ! be signed and e worn toby the witnesses. The officer shall certiry j ing due him, name of the person by whom he was employed, and a gen
that the answers were signed and sworn to
^h^rSnmiRsioifand’biter
eral statement of his contract; also a description of the property to he
shall seal them up in an envelope together wjttitbe commission “d inter
charged with the lien, which claim must be verified by the oath of the
rogatories and shall write his name across the seal, and shall dlrect tne
party or his agent. Sub-contractors have sixty days in which to file liens.
Sag” to the clerk of the court or justice of the peace issuing the com
Landlords, innkeepers, and common carriers have the usual lien on
mission If sent by mail the postmaster mailing the same shall indorse
property and baggage of tenants, gqests, and shippers. (See Judgments.)
thereon’that he received them from the
th ghaUcerUtv that
his name In every case the officer taking the deposition shall certify that
Limitations. Ten years’ adverse possession of land under color of
he knows the witness to be the person such witness purports
title, having paid taxes on the same for such period, bars all actions.
Infants, femme covert, persons of unsound mind, imprisoned, or beyond
such witness is not personally known to the offi
npr-ons weii known
the limits of the United States, excepted, and have one year after removal
the witness to be identified by at least two resiions
witness
of disability in which to bring action. All other actions must be brought
to the officer, and he shall certify to the fact of identification ol tne witness.
as follows: Upon judgments of courts of record, within seven years; on
Divorce. The grounds for divorce are: Adultery, cruel,or inhuman
bonds, promissory notes, bills of exchange, or other contracts in writing,
and upon judgments 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 frand, within four years,
against sureties on official bonds, and against sheriffs and public officers,
and at least one corroborating witness is required.
within two years. Actions of replevin must be brought within one year
after right of action accrued.
Dower All nroDertv owned by any woman at the time of her mamage,
continues to be her separate P^^Tty^ ’^^’^/of’er husband's
Married Women. (See Dower.) May sue and be sued aefemme sole.
Mechanics’ Liens. (See Liens.)
indebtedness.
Executions. Executions may Issue at anytime within ^venjears,
provided first execution istakenou
From district courts are
judgment, and to any county in the J.trriwj
justices’
returnable in sixty days froni ^ebvery
erNo ut
of execution
courts within thirty days from date 0
eIecution of a judgment in
except by appeal. A writ of error will
f?om date
district court, Ifsuch writ 11' »PP *e‘l .foLven for double the amount of
of rendition of judgment, and bo
g g
10 per cent damages where
such Judgment. The ’“Preme court may a sess&i
execu.
appeal is taken without reasonab
’ mav j,e redeemed within one
S5X! eStS .^T&verd.ed fc.r »~ks prior to
of sale, in some newspaper.
Exemptions. Real estate to thV?lmilie7 aSally^Sdffig61^
from execution in favor of heads of
'eg'Qlng the
the same, provided the .exe“j^Oeg claimed as exempt are worth
opinion of the creditors the Pre“ • . , for the officer to advertise
more than $1,000, it "hall be
the proceeds of such sale pay to
and sell the premises, and out of the proce^
p4yment
the execution debtor $.1000, and
Pi-J^
made unle8g more
of execution, provided that no s
th clothing, beds, and bedthan $1,000 be bid for the prem18® f ily. and firewood sufficient for
clothing necessary for the use of the fomily^wm therefor AR Biblegi
sixty days, when actually Pr0'bl
1IISed by the family, and family
hymn-books, testements, school
actually provided, to the amount of
and religious pictures.
UBehold furniture not exceeding $200
$50, and kitchen
hv thl debtor
Also all tools and Implein value, both to be ®eleS^oAthnt may he nece-sary to enable him to
ments belonging to the
that^i yKricnHnr*) or mechanical, to be
carry on his trade or business,,
* value. Real estate when sold
selected by him, and not to exceed »i5om
freehol<Jerg of the vicinity,
under execu tion must bei first at I 8
if,'d val „e. Unmarried men have
and must bring two-thirds o
the Territory owning no homestead may
no exemptions. Any resident of the l«jwy
thereof,
select other property, not exceeding >>w in
Foreign Corporations. (See Corporations.)
„
,
t
Action founded upon any judgment of any
Fraud.
Fraudulent conveyances, or conveyances made with the
Mortgages of Personal Property. (See Deal Estate and Chattel
Mortgages.)
Mortgages of Real Property. 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 of 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
De 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
of 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. If 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. If after satisfying the mortgage and
costs of sale there shall he 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.)
Notes and Bills of Exchange. (See Bills and Notes.)
Partnerships, Limited. 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.
Probate Law. (See Claims Against Estates, Descent and Distribution,
Executors and Administrators.)
Protest. Any notary public may make protest of hills 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
1358
BANKING AND COMMERCIAL LAWS—NEW YORK.
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.
Records.
(See Conveyances.)
Redemption, Real estate sold under execution may he redeemed hy
the execution debtor within one year, hy paying to the purchaser the pur
chase money with interest thereon at 12 percent. Real estate sold for
taxes may be redeemed within three years, but the debtor shall pay inter
est at 1M percent per month on the purchase money. The purchaser
under execution is entitled to the erowing crops, and the rents and profits.
Arbitration may be resorted to, upon disputed questions, the prac
tice being regulated by the code of civil procedure.
Assignments and Insolvency. Statutory provisions exist, regu
lating the making of general assignments in trust, for the benefit ol
creditors: Preferences are allowed for the wages or salaries of em
ployes, and to the amount of one-third in value ol the assigned estate
after deducting such wages or salaries and fche costs and expenses of exe
cuting the trust. Also regulating the filing of inventory, the giving of
bonds and accounting by the assignee. The court has power to remove
assignees, and may require creditors to present claims within a period
to he prescribed, notice whereof is to be given by advertisement, etc.
The dividends paid by such an assignee need only be applied upon the
debt of the assignor, and do not discharge or satisfy the whole indebted
ness of the assignor.
j
Replevin. Any person entitled to the immediate possession of per
sonal property may have a writ 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
Attachments may issue in actions for damages for breach of contract,
defendant, and that the plaintiff’s right of action accrued within one year.
wrongful conversion of personal property, or injury to person or prop
Before the writ is served, plaintiff must give bond to the officer conditioned
erty
in consequence of negligence or fraud, where the defendant is either
to hold him harmless, make return of the property, if a return be adjudged
a foreign corporation, or non-resident, or has left the State, or conceals
and pay all costs that may be adjudged against him, the affidavit to be
himself
to avoid service, or has removed from the State, or sold, assigned,
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- I secreted, or is about to remove, sell, assign, or secrete his property with
intent
to
defraud creditors, or where, for the purpose of procuring credit
ant is entitled to a return of the property, or its value at his option, and
or an extension of credit, a false statement was made in writing, under
to double damages for the detention of the property. No cross replevin
the hand and signature of the defendant, or a duly authorised agent,
allowed.
made with his knowledge and acquiescence, as to his financial responsi
bility or standing, or where the defendant, being an adult, has been con
Taxation. Taxes have the force and effect of a judgment against the
tinuously without the United States for more than six months and has
person assessed and constitute a lieu upon real and personal property.
not made a designation of a person upon whom to serve a summons in his
Taxes become delinquent, one-half the first day of December of the year
behalf.
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
Banks. The constitution prohibits the legislature from passing
respectively, one per cent penalty is added; and unless said taxes are paid
any act granting any special charter for banking purposes; but cor
on or before the first day of the following month four per cent additional
porations or associations may be formed for such purposes under
is added. After sale certificates draw interest at the rate of 114 per cent
general laws.
per month. Real estate sold for taxes may be redeemed within three
In a village whose population does not exceed two thousand, a cap
years. Exemption to amount of §200 allowed to head of family residing
in Territory. Irrigation, reservoir, and railroad companies exempt nnder i ital of $25,000 is required; where the population exceeds two thousand,
but does not exceed thirty thousand, $50,000 is the capital required,
certain conditions for a term of years.
and not less than S 100,000 elsewhere.
Wills. Any person of the age of twenty-one years or upwards, and in
Provision is made for circulation and a deposit for security therefor.
sound mind, may dispose by will of all his property, except wbat is suf
The State constitution provides that stockholders of all banking
corporations shall be liable to the amount of their respective shares
ficient to pay his debts. Two or more witnesses shall be sufficient.
for all debts and liabilities; and also that bill holders, in case of insol
The witnesses to a written will must be present, see the testator
vency, shall be entitled to a preference in payment over all other cred
sign the will, or some one sign it for him at his request as and
itors of the bank. General laws have been enacted in accordance
for his last will and testament, and must sign as witnesses at his
with these constitutional provisions. Quarterly reports are required
request, in his presence and in the presence of each other. Any
to be made to the superintendent as of a date designated by him. He
will executed in any foreign jurisdiction sufficient to convey the
is also given authority to examine the books of any bank. No for
title or real estate in such jurisdiction shall be valid in this Ter
eign corporation other than a moneyed corporation may do busi
ritory to the same extent as in the jurisdiction where made. All
ness in this State with the words, “trust,” “bank,” “banking,” "insur
written wills are irrevocable, except by specially mentioning it in a
ance,” “assurance,” “indemnity,” “guarantee,” “guaranty,” “sav
subsequent will, and declaring that he thereby revokes the same, or
by a subsequent valid will disposing of the same property. The pro- I ings, “investment,” "loan,” "benefit,” or any other words or terms
indicating, representing or holding out such company to be a moneyed
bate judges have power to qualify and approve wills after hearing the
corporation, as a part of its name or corporate title.
evidence ol the witnesses who attest the will, and any other facts con
The general banking act also provides for the organization and
nected with the execution of it. If the probate judge finds everything to
management of savings banks and trust companies.
he legal and proper he approves the will, but if not, then he returns it to
Banks of discount and deposit, and trust companies having their
the party applying for its approval, with his reasons for failing to
principal place of business in the Borough of Manhattan, New York
approve the same. The person to whom it is returned may present the
City, are required to have at all times on hand at least 25% of their
same to the district court at the next regular term held in the county, for
aggregate amount of deposits; in Brooklyn, 20%; and such banks and
its approval or disapproval which is final.
SYNOPSIS OF THE LAWS OF NEW YORK
RELATI^ TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Messrs. Rosendale & Hessberg, Attorneys
at Law, Albany. (See Card in Attorneys' List.)
Acknowledgments must be made within the State, before a justice
of the supreme court; or within the district wherein such officer is
authorized to perform official duties, before a judge, clerk, deputy clerk,
special deputy clerk of a court, a notary pnblic, or the mayor, a recorder
of a city, a justice of the peace, surrogate, special surrogate, special
county judge, or commissioner ol deeds. (No special form, separate
and apart from her husband, etc., now required for married women.)
If made without the State, they may he taken by judges of United
States courts, judges of the supreme, circuit or superior court of any,
other State or Territory, within the jurisdiction of their courts; by the
mayor of any city, or hy a New York commissioner, or any officer of
such State or Territory authorized by its laws to take acknowledgments,
or proofs ol deeds to be recorded therein. When acknowledged
as last above stated, there must be obtained a certificate “under the
name and official seal of the secretary of State of the State in which
such officer resides, or under the name and official seal of the clerk,
register, recorder, or prothonotary of the county in which such officer
resides, or the clerk of any court thereof having a seal specifying that the
officer was authorized, etc.” Provision is made by law for acknowledg
ments and proofs in foreign countries; also Cuba, Porto Rico, and Phil
ippines.
Administration of Estates. The administration of estates is com
mitted to surrogate’s courts. In cases of intestacy, letters of adminis
tration are to be granted to the relatives of the deceased entitled to suc
ceed to the personal property ol decedent, who will accept the same in
the following order: 1. To the surviving husband or wife. 2. To the
children. 3. To the father. 4. To the mother. 5. To the brothers.
6. To the sisters. 7. To the grandchildren. 8- To any other next of
kin, entitled to share in the distribution of the estate. 9. To an execu
tor, or administrator of a sole legatee, named in a will, whereby the whole
estate is devised to such deceased sole legatee. If no relative, or guardian
of a minor relative, will accept the same, the letters must be granted to
the creditors of deceased; the creditor first applying, if otherwise com
petent, is entitled to preference. If no creditor applies, the letters must be
granted to any other person or persons legally competent; county treas
urers have preference, and in New York City the public administrator
having preference over creditors.
Affidavits may be taken by any officer authorized to administer oaths
including commissioners of deeds and notaries public, the latter also in
counties other than for which they are appointed, upon their filing certifi
cates in such county.
trust companies in all other places in the state 15%. Two-fifths of
such lawful money reserve in the Borough of Manhattan; one-half
in the Borough of Brooklyn, and three-fifths of any of such reserve
of any bank located elsewhere in the State, may consist of moneys on
deposit subject to call in any other bank or trust company having a
capital of at least $200,000, or a capital of S150.000, and a surplus
of $150,000, and approved by the Superintendent of Banks.
Payment of Savings Bank Deposits. Deposit in name of any minor
is free from control of all persons, except creditors, and the receipt of such
minor for such deposit is valid to the bank.
Any deposit in trust for another, in the event of the death of the trustee,
may be paid to the person for whom the deposit was made, in the
absence of notice of the existence of a legal trust.
? deposit in the names of depositor and another persou and made pay
able to either or the survivor, may be paid to either during the lifetime of
both, or to the survivor after the death of one.
Bills of Exchange.
(See Notes and BiUs.of Exchange.)
Chattel Mortgages. (See Mortgages.)
Consolidated Laws. The Legislature of 1909 passed a large num
ber of compiled sta’utes reported by the Statutory Consolidation Board,
known as “Consolidated Lavs,” to distinguish them from the “ Revised
Laws,” “ Revised Statutes,” and “ General Laws ” heretofore in force in
this State and now repealed.
Conveyances. (See Deeds.)
Corporations. Insurance, banking, railroad, transportation, and
business corporations may be formed under the general laws of the State.
Foreign Corporations (other than moneyed corporations), before doing
business in the State, are required to obtain a certificate of authority
from the secretary of State. “No foreign stock corporation, doing busi
ness in this State, without such certificate, shall maintain any action in
this State upon any contract made by it in this State until it shall have
procured such certificate.” "This prohibition shall also apply to any
assignee of such foreign stock corporation, and to any person claiming
under such assignee or such foreign stock corporation or under either of
them. Foreign corporations doing business in this State may acquire
real property for its corporate purposes and convey the same in the
same manner as a domestic corporation.
Foreign corporations may ac
quire on sale in foreclosure of a mortgage held by them or upon any judg
ment or decree for debts due th«m, or upon a settlement to secure such
debts, real property in this State covered by or subject to such mortgage,
judgment, decree, or settlement, and may take by devise any real property
situate within this State, and hold the same lor not exceeding five years.
Foreign corporations may engage in the business of buying and selling
and improving real estate in this State, when authorized bv its certifi
cate of incorporation. (Lancaster vs. Amsterdam Improvement Co., 140
N. Y., 576.) An assignment for the benefit of creditors made in this
State by an insolvent foreign corporation, valid under the law of its
domicile, will be recognized as valid here. (Vanderpoel vs. Gorman, 140
N. Y., 56$, Jan., 1894.)
Courts. Terms and Jurisdiction. The supreme court has unlimited
jurisdiction. There is a county court for eacn county, having jurisdic
tion to the amount of $2,000, in actions where the defendant is, or if
BANKING AND COMMERCIAL LAWS—NORTH CAROLINA.
1359
there is more than one, where all of the defendants are, residents of the
county. Justices of the peace have jurisdiction in actions oncontract
where the sum claimed does not exceed $200, and district courts ot the
city of New York, where the sum does not exceed $250, and the city
ourt of the city of Albany, where the sum does not exceed 81,000.
form as if unmarried, and she and her separate estate shall be liable
thereon, whether the contract relates to her separate estate or otherwise,
and in no case shall a charge upon her separate estate be necessary.
A married woman may convey real estate directly to her husband, and tha
husband may convey directly to his wife. Widows have right of dower.
Married women may confess judgment.
Days of Grace are abolished on paper in which there is no expressed
stipulation to the contrary.
Deeds. The legislature has provided for short forms of deeds and
mortgages.
Depositions. The deposition of a party or of a person not a.Party
within this State, in an action brought or to he brought, may be taken,
where shown that such testimony is material and necessary in the prosecu
tion or defense of the action; or if the action is pending that the
to be examined is about to depart from the btate, or that he is so sick or
infirm as to afford reasonable ground to believe that he wdlnotbe able to
attend the trial. Such deposition, except that of a party token at the
instance of an adverse party, can only be used upon proof of
a
inahilitv to attend the trial
Depositions may be taken without the btate
f“.use withinith<t State The commission, in the discretion of the court,
may direct the examination UDOn oral questions or writte“ interrogatories
Depositions may also be taken within the State for use without the
State n an action or special proceeding pending m a court without the
State either in the United States or in a foreign country. A person who
fails to rSnd to a subpoma for such examination is guilty of contempt
of court. Depositions may also be token for use on a motion in any action
or proceeding.
Mortgages must be executed and recorded same as deeds. Where
containing a power of sale, may be foreclosed by an action brought for
the purpose, or without intervention of court (by advertisement). There
is no redemption under a mortgage sale. Chattel mortgages, except
where the possession of the property mortgaged passes to, and is retained
by, the mortgagee, must be filed forthwith, or are" void as against creditors
and innocent purchasers. Such mortgage ceases to be valid in one year,
except as to the mortgagor or his representatives, unless a copy thereof
is refiled annually with a certificate of the mortgagee as to the amount
unpaid thereon, and this copy, mortgage, and certificate constitutes a
renewal of the mortgage for one year. All mortgages on real estate
are taxable at the rate of five mills on each dollar of the amount of the
principal debt, payable at the time of recording the mortgage.
Dower. (5«e Married Women.)
Executions will issue at any time within five years from dato of judg
ment; after five years, leave must be
t?m£ Thfrl are
ho Bfa^^aws^unless^r^a^iVeaHs'thkm'^w^ienjan^undertaking^securing
T'other.,
a“ I-
three JoMh.Ampri.ohmenO.
must be recorded); necessary
where execution is issued on judgment nr ©
v
articles
family as a domestic, or for the purchase p
funds to the amount
specially exempt. Earnings or income from trust funds to toe amount
of 812 or more per week may partially be collected and applied on juug
ment by order of the Court.
“aidSS2S
s
of a statement relating to tbe pnrcnas _
.
t
ay mugt pro.
made in writing and signed, the^purchaser
wd perPniit
duce within ten days upon request hto boofcs^
creditors to examine them, and failure to ,do
making the statedence of the falsity of such statement, and the party so making me
ment may be proceeded against criminally.
Foreign Corporations. (See Corporations.')
Garnishment. (See Attachment.)
Holidays. The term holiday inchideBthe ^a^Dayf^he twelfth
year: The first day of January know
• *
the twenty^second day of
day of February, known as Lincoln s Birthday , tne
J
February, known as Washington’s B'rthday
thirnet
y,
known as Memorial Day; the fourth day or dui^^
Labor Day;
dence Day; the first Monday of Sep
’
&nd the twenty.
the twelfth day of October,
aphrigtmag Day: and if either of
fifth day of December, known as Chnstma
D^ay
ra, e)ection
such days is Sunday, the next *?ay
i(]ent of the United States or
day and each day appointed by the i
„ftnerai thanksgiving, general
by the governor of this State as a day
g bgervance# q’he term half
fasting and prayer, or other general religios^bs^.^^
each 8atnrday
holiday includes the Peri°dfromn
termg requires the paywhich is not a holiday. W here a contr
U,ion on a public holiday,
ment of money, or the performance of » "^ej 0I1 the next business
such payment may be
or condition p f
g
effect ag .f
or
day succeeding such holiday, with the sai
contract
performed in accordance with the terms o
Husband and Wife. (See Married Women.)
Insolvency. (See Assignments and Insolvency.)
Interest. The legal rate ol’ interest
bonds, contracts, securities, etc., wh
y a g ]ender caD reC0ver neither
taken, or agreed for, arc absolutely vo d, an 1
orationg can not plead
principal nor interest in such cases, _
= „,iad«.m«*nor bv fine
usury an a defense. Usury is also pi
or imprisonment, or both. State oa
footing as national banks as regar p“"‘J ’'qd demand loans of 85,000
the extreme penalties mentioned .hove.^ of
certiflcateg of
and over, made with warehouse r
ptbonds, or other negotlastock, certificates of deposit, binsoexcn
tQ receive and Colble instruments, P1 edged as col*t h
any gnm< to be agreed
lect, as compensation for making o
.,jon
upon in writing by the parties to the transaction.
▼
j
finrketed in a county clerk s office bind,
Judgments. Judg ^.nnertv for ten years, which the judgment
and are a charge upon, real prope y
judgment is presumed to be
debtor has or acquires within tilt
• fr(^m the time when tbe party
paid after the expiration of twenty
enforce it. Confession or
recovering it was first entitfod to a mau
Married woman may
an offer of judgment can be made in
confess judgment.
Limitations of Suits. Contraexpress^^mp^ie^ewep c
of record mid'seaVed instoSs, twenty years. Revivor: Part payment
or new promise m writing.
hold, mortgage, and convey real and
Married Women may'
’ man may contract with her husband, or
^?herPpXn% the same extent, wit[ like effect, and in the same
Notes and Bills of Exchange. Negotiable instruments are de
fined by Chapter 38 of the Consolidated Laws. Section 20 provides as
follows: “ Section 20. ‘Form of Negotiable Instrument. An instru
ment 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 deter
minable 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 provision which authorizes the sale of collateral
securities in case the instrument be not paid at maturity, 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 protec
tion of the obligor; or gives the holder an election to require something
to be done in lieu of payment of money. It is not necessary 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 as follows by “Section 145. Time of 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 in
strument is payable on the next succeeding business day. Instruments
falling due or becoming payable on Saturday are to be presented for pay
ment on the next succeeding business day, except that instruments pay
able on demand may, at the option of the holder, be presented for pay
ment before 12 o’clock, noon, on Saturday, when that entire day is not a
holiday.” (See Holidays.)
Probate Law. (See Wills.)
Protest. (See Notes and Bills of Exchange.)
Taxes. Lands may be sold for taxes when two years delinquent.
Publication of sale is made for twelve weeks in the county paper, and
two years after sale are allowed for redemption, the owner having the
right to redeem by paying the purchase money and interest at 10 per
cent per annum. A mortgagee (where the instrument is duly recorded)
has a similar right of redemption and upon filing a notice of his
mortgage, its date, record,etc., with the proper officer, is entitled to notice
before the tax title can cut off his mortgage. Special provisions for
sales of lands for taxes exist in several cities and counties. In cities,
assessments for local improvements may be enforced by sales of the
houses and lots assessed.
Wills. All persons, except idiots, persons of unsound mind, and
infants, may devise their real estate by will. Males of eighteen years and
upward, and females of sixteen years and upward, may bequeath
personal estate. Wills must be subscribed by the testator in the presence
of two witnesses, each of whom must sign his name at the end of the will,
at the request of the testator, who must acknowledge and declare the in
strument to be his last will. A will of an unmarried woman is revoked by
subsequent marriage. A devise or bequest to a witness whose testimony
is necessary to establish the will is void. The Code of Civil Procedure
regulates the practice of probating wills in the surrogates’ courts of the
several counties of the State. Within two years after the probate of a will
an action may be brought in the supreme court to determine the validity
of the probate, by any person interested in the will or codicil. Persons
within age of minority, of unsound mind, imprisoned, or absent from the
State may bring action two years after disability has been removed.
SYNOPSIS OP THE LAWS OF NORTH
CAROLINA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by John W. Hinsdale, Attorney at Law,
Raleigh. (See Card in Attorneys' List.)
Accounts and Claims, Proof of. In any action instituted in an
court of the State upon an account for goods sold and delivered, an item
ized statement of said account., properly verified, shall be received in evi
dence, and shall be deemed prima facie evidence of the correctness of
said account. All creditors of the maker of a deed of trust or assign
ment must file with the clerk of the superior court a statement under
oath, that the amount claimed is justly due, after allowing all credits
and offsets. Creditors of a decedent must present their accounts and
claims to the administrator or executor within twelve months after pub
lication of notice of administration. But if they fail to do so, and the
personal representative has not disbursed the assets of the estate, the
creditor may still recover of the personal representative. If he has dis
bursed the assets, the creditor may recover of the heirs, devisees,
legatees, or next of kin, who may have received property of the intestate.
Acknowledgments and Probate of Deeds. Every conveyance
of land must be acknowledged or proved and registered in the county
where the land lies. All deeds conveying lands in this State, or letters of
attorney, or other instruments requiring registration, must be probated
in the following manner: 1. When the grantor or maker, or subscribing
witness resides in the county wherein the land lies, the deed, etc., must be
acknowledged by grantor or maker, or proved by the oath of such sub
scribing witness, Defore a justice of the supreme court, a judge of the
1360
BANKING AND COMMERCIAL LAWS—NORTH CAROLINA.
superior court, a commissioner of affidavits appointed by the governor
of this State, the clerk of the supreme court, a clerk of the superior court,
a deputy clerk of the superior court, a clerk of the criminal court, a
notary public, or a justice of the peace of this State.
Administration of Estates. Letters of administration are granted
by the clerks of the superior court: 1. To the husband or widow. 2. To
the next of kin in the order of their degree, when they are of different
degrees; if of equal degree, to one or more of them at the discretion of
the clerk. 3. To the most competent creditor who resides in the State
and proves his debt on oath before the clerk of the superior court. 4. To
any other person legally competent. A resident of another State may act
if he is not an alien. 5. There may be in every county a public adminis
trator, to be appointed by the clerkof the superior court, who may obtain
letters of administration, if the party entitled does not apply in six months,
or if the person entitled renounces. Where no one applies within six
months, all persons are deemed to have renounced, anil the clerk may
now appoint any discreet person.
The following persons are incompetent to qualify as administrators,
namely: A minor, an alien who is a non-resident of the State, a person
who has been convicted of an infamous crime, or one who refuses or fails
to give the bond required.
Affidavits may be made before the clerks of the supreme court and
superior courts, notaries public, and justices of the peace of the State;
and also before commissioners of deeds for North Carolina residing in
other States, and clerks of any court ol record of another State. A
pleading may be verified before a notary public in or out of the State,
as well as before the other officers above named.
Aliens. Resident or non-resident aliens may take real property by
purchase or descent or other operation of law.
Arbitration. There is no statute regulating arbitration. The agree
ment of the parties as expressed in the “ submission ” governs. Awards
are construed liberally and will not be set aside because of a mistake of
law unless it appears that it was the intention to decide according to law.
Arrest and Bail. The defendant may be arrested in certain cases
prescribed by statute.
Assignment and Insolvency.
Debtors are not permitted by the
state law to make assignments or deeds of trust with preferences of par
ticular creditors. A general assignment for the benefit of creditors will
not affect any lien in favor of a creditor previously obtained.
Attachments. A warrant of attachment against the property of one
or more defendants in an action may be granted upon the application of
the plaintiff when the action is to recover a sum of money only, or dam
ages for one or more ofthe following causes: 1. Breach of contract
express or implied. 2. Wrongful conversion of personal property. 3.
Any injury to real or personal property in consequence of negligence,
fraud, or other wrongful act. 4. Injury to the person caused by negli
gence or other wrongful act. The warrant of attachment may be granted
to accompany the summons, or at any time after the commencement of
the action.
Banks and Banking. Any number of persons, not less than three,
may associate to establish banks of discount and deposit, to be known as
commercial banks, and also to establish offices of loan and deposit, to be
known as savings banks, or to establish banks having departments for
both classes of business. The aggregate capital shall be not less and
$25,000, except at a bank organized in a city or town not exceeding
fifteen hundred inhabitants can have a capital stock of not lees than
$5,000, and of five thousand inhabitants of not less than $10,000. The
records of incorporation shall be executed in triplicate and recorded in
the office of the superior court clerk of the county in which the bank is
locate^. in the office of the corporation commission and in the office of
the secretary of state. The bank shall not commence business until the
corporation commission shall have ascertained the amount of money
paid in on account of capital, the name and residence of each of its
directors, the amount of capital stock oi .vhich each is the owner in good
faith, and whether the bank has complied with all the provisions of law.
Whereupon a certificate to this effect from the corporation commission
is issued to the bank. Upon its incorporation the bank may exercise all
of such powers as are necessary to carry on the business of banking, dis
counting or negotiating usury notes, drafts, bills of exchange and other
evidences of debt by receiving deposits, by buying and selling exchanges,
by loaning money on personal security or real property, ft may take and
receive any interest at the legal rate upon its loans. It may purchase,
hold and convey real estate, such as may be necessary for the convenient
transaction of its business, which investment shall not exceed 25 per cent
of its paid-in capital stock and permanent surplus, such as is mortgaged
to it to secure loans, such as is conveyed to it in satisfactory deeds and
such as it acquires by sale on any execution in its favor. At least 50 per
cent of the capital stock must be paid in before it commences business,
and the remainder must be paid in monthly install ments of at least 10 per
cent, the payment of each installment to be certified to the corporation
commission. The delinquent stockholders may be sold out by the bank.
The transfer of no stock shall be valid against the bank so long as the
registered holder thereof is a director of the bank. The stockholders
shall be individually responsible, and not one for another, for all con
tracts of the bank to the extent of the par value of their stock in addition
to the amount invested in such shares.
Bills of Exchange and Promissory Notes. Protest is not
required in order to hold the maker or endorser of a promissory note, or
the acceptor of a bill of exchange, but it is necessary to hold the drawer
or endorser of the bill of exchange.
Unless the contrary be plainly expressed, the endorser of any bill, nego
tiable bond, or promissory note is liable as a surety, and no demand upon
the maker is necessary previous to bringing an action against the endorser.
But this does not apply to bills of exchange, whether inland or foreign,
nor to notes which are made and become operative as contracts beyond
the limits of the State, nor to endorsement made out of this State. It
applies in those cases only where not only the endorsement in question,
but all antecedent endorsements were made within this State. A note
signed and endorsed in another State, but which was never delivered until
negotiated in this State is governed by the laws of this State, and under
it, no demand, protest, or notice of non-payment is required to bind the
endorser. All bonds, bills, and notes for money with or without seal, and
expressed or not to be payable to order or for value received, are negotia
ble in like manner, as are inland bills of exchange by custom of merchants
of England. January 1st, January 19th, February 22a, April 12th,May 10th,
May 20th, July 4th, first Mondayin September, and the day appointed by
the governor as a Thanksgiving day, Tuesday after the first Monday in No
vember when a general election is held,and Decern ber 25th of each and every
year, are puoiic holidays, and whenever any such holiday shall fall upon
Sunday the Monday following shall be a public holiday,and papers due on
such Sundays or Mondays shall be payable on the next succeeding business
day. Instruments falling due on Saturday are to be presented for pay
ment on the next succeeding business day,except that instruments payable
on demand may, at the option of the holder,be presented for payment be
fore 12 o’clock on Saturday, when that entire day is not a holiday. The
Negotiable Instruments Law, which is the same as the New York Statute,
except that days of grace are retained, was adopted in 1899, and is chapter
733 ofthe Laws of 1899. (See Days of Grace.}
Claim and Delivery. In an action to recover the possession of
personal property the plaintiff may, at the time of issuing summons, or at
any time before answer, claim the immediate delivery of such property.
He must file an affidavit showing: 1. That the plaintiff is the owner of
the property claimed (particularly describing it) or is lawfully entitled to
the possession thereof. 2. That the property is wrongfully detained by
the defendant. 3. The alleged cause of the detention thereof. 4. That
the property has not been taken for a tax, assessment or finb pursuant to
statute, or seized under an execution or attachment against tht property
of the plaintiff, or, if so seized, that it is exempt by statute from such
seizure. 5. The actual value of the property. The plaintiff must give an
undertaking with sureties in double the value of the property, for its
return to the defendant, if return thereof be adjudged, and for damages.
The defendant may retain the property to abide the event of the action on
giving bond to deliver the property to the plaintiff and pay damages, if it
oe so adjudged.
Conditional Sales. All conditional sales of personal property
in which the title is retained by the bargainor must be reduced to
writing and registered in the same manner, tor the same fee, and with tha
same effect, as is provided for chattel mortgages; otherwise they ara
inoperative as against creditors and purchasers, for value, in so far aa
they reserve the title in the vendor.
Corporations. May be formed under the general statute, either with
or without personal liability, by filing and recording a plan of incorpora
tion or articles of incorporation, duly signed, in the office of the secretary
of State. Thereupon the secretary of State shall record them
and send a copy of the same to the clerk of the superior court of the
county where the office of the corporation is located, who shall record
the same in his office. Charters of corporations formed under general
laws may be amended by proceedings before the secretary of State with
whom the plan of incorporation was filed, provided there be no change
of the business incorporated. They may also be created by a special act
of the legislature.
Domestic corporations may hold, purchase and convey real and personal
estate, without limit, in and out of the estate, and may take such property
by devise or bequest. Any corporation created by any other state or
foreign government may acquire by devise or otherwise, and may hold,
mortgage, lease and convey real estate in this state, “lor the purpose of
rosecuting its business or objects, or such real estate as it may acquire
y way of mortgage or otherwise in the payment of debts,” provided the
foreign government under whose laws such corporation was created be
not at war with the United States at the time of purchasing such real
estate.
Foreign Corporation. Every foreign corporation before being per
mitted to do business in the Si ate of North Carolina (railroad, banking,
in«urance, express and telegrapu companies excepted) shall file in the
office of the secretary ol State a copy of its charter, or articles of agree
ment, attested by its president and secretary, under its corporate seal,
and a statement attesied in like manner of the amount of its capital
stock authorized, the amount actually issued, tne principal office in this
State, the name of the agent in charge of such office, the character of the
business which it transacts and the names and postoffice addresses of its
officers and directors. And such corporation shall pay to the Secretary
of State, for the use of the State, ten cents for every one thousand
dollars of the total amount of the capital stock authorized to be issued
by such corporation, but in no case less than ten dollars nor more than
one hundred dollars. Every corporation failing to comply with the pro
visions of this section shah forfeit to the state five hundred dollars, to
be recovered with costs in an action to be prosecuted by the attorneygeneral, who shall prosecute such actions whenever it shall appear that
this section has been violated. Acts of 1903, page 1124.
Courts. The supreme court is the appellate court of last resort It
■its twice a year.
The superior courts have exclusive original juris
diction of all civil actions, whereof original jurisdiction is not given
to some other court, and they have appellate jurisdiction of all
cases determined by a superior court elerk or a justice of the peace.
They sit twice a year in every county, and in some of the counties
oftener.
Clerks of the superior court have jurisdiction of the
probate of deeds, granting of letters testamentary and of administration,
appointment and removal of guardians, apprenticing orphans, auditing
of administration and guardian, receivers’ and trustees’ accounts, the
appointment and removal of trustees. Their offices ate always open.
Justices of the peace have original jurisdiction of all civil actions’founded
on contracts, when the sum demanded does not exceed $200, and when the
title to real estate does not come into the controversy. They also have
jurisdiction concurrent with the superior courts of civil actions not
founded on contract, wherein the value of property in controversy does
not exceed $50.
Days of Grace. All bills of exchange payable within the state, at
sight, In which there is an express stipulation to that effect, and not other
wise, shall be entitled to days of grace as the same are allowed by this cus
toms of merchants in foreign bills of exchange payable at the expiration
of a certain period after date on sight: Provided that no days of grace
shall be allowed on any bill of exchange, promissory note, or draft payable
on demand.
Deeds. A scroll is a sufficient seal to a deed in North Carolina.
When real estate shall be conveyed to any persou, the same shall be
held and construed to be a conveyance in fee, whether the word "heirs’*
shall be used or not, unless such conveyance shall in plain and expressed
words, show or it shall be plainly intended by the codVeyance or some
part thereof, that the grantor meant ro convey an estate of less dignity.
If the deed conveys husband’s lands, it should contain a clause releas
ing dower by the wire and should be signed by her. (See Acknowledg
ments and Probate of Deeds.)
Depositions. Any party in a civil action or special proceeding may
take the depositions of persons whose evidence he may desire to use.
Written notice of the time and place cf taking a deposition, speci
fying the name of the witness, must be served by the party at whose
instance it is taken, upon the adverse partv or his attorney.
The
time for serving such notice shall be as follows:
Three entire davs
when the party notified resides within ten miles of the place where the
deposition is to be taken; in other cases, where the party notified resides
in the State, one day more for each additional twenty miles, except where
BANKING AND COMMERCIAL LAWS—NORTH CAROLINA.
the deposition is to he taken within ten miles of a railway in running
operation in the State, when one day only shall be given for every 100
miles of the railway to the place where the deposition is to be taken.
Where a deposition is to he taken beyond the State, ten days’ notice of the
taking thereof shall he given, when the party whose deposition is to be
taken resides within ten miles of a railway connecting with a line of rail
way within tweiity miles of the place where the person notified resides.
In other cases, where there are no railways running as above specified,
twenty days’ notice shall be given.
Desceut and Distribution. When any person shall die seized of
an inheritance, not having devised the same, it shall descend according
to the following rules: 1. Real estate lineally descends. 2. Females
shall inherit equally with males, and younger with older children ;
3. The lineal descendants shall represent their ancestors. 4. On the
failure of lineal descendants, and when the inheritance has been transmit
ted by descent or derived by gift, devise or settlement from an ancestor,
the estate shall descend to the next collateral relations of the person
last seized, who were ol the hlood of such aucestor.
5. On tne
failure of lineal descendants, and when the inheritance has not
been so transmitted or devised, or when tbe blood of such ancestors
is extinct, the estate passes to the next collateral relations of the person
last seized.
6. Collateial relations of the half blood snail inherit
equally with those of the whole blood. A person dying, without issue,
and leaving no brother or sister, or issue of such, the father, if living,
shall inherit, and if not. the mother 7. When a per80?nSh-a- dle
leaving no heirs, the widow shall be deemed his heir. b. Illegitimate
children shall inherit from their mother 9. Illegitimate children may
inherit from each other. When an illegitimate child shall die without
issue, his mother shall inherit from him.
10 The
of
a deceased person, in case of intestacy, shall be distributed in the
following manner:
1.
If not more than two children one third
to the widow and all the residue equally among the children and
such persons as legally represent such persons who may be ihead. 2. If
there are more than two children, the widow and all the children share
alike.
3. If there be no child nor legal representative of a deceased
child, then one-half of the estate to the widow and the residue equally to
tlie next of kin to the intestate, who are of equal degree, and those who
represent them. 4. If there be no widow, then equally among the child
ren and the legal representatives of the deceased childreni 5. If there
be neither widow nor children nor any legal representatives of the
children, then the next tin of the intestate who are in equal degree and
those who legally represent them.
6. If there be no child or legal
representative of a deceased child, nor any of the next of kin
the
intestate, then the widow, if there be one, shall be entiltied to a l the
pergonal estate of said intestate. 7. If an intestate leaves no issue,
nor th* representative of such, his father shall take in preference to
brothers, sisters and mother. In case a married woman dies intestate,
her personalty goes to her husband.
Detinue. (See Claim, and Delivery.)
Divorce Marriages may be dissolved and the parties thereto divorced
bond, oi luutriinoiiy, on .pplieoUon of theInjured p.ny to the
superior court, made as by law provided, in the following, cases, tirst.
If a husband shall commit fornication and ^’teiy: second,_lfwife
shall commit adultery; third, if elther party at the time of the marriage
was and is still naturally impotent,
t f t) p
pucll
1361
Fraudulent Sales. The sale in bulk or a large part of the whole
of a stock or merchandise, otherwise than in the ordinary course of trade
and in regular and usual prosecution of the seller’s business, shall be
prima facie evidence of fraud, and void against the creditors of the
seller, unless the seller, at least seven days before tne same, make an
inventory showing the quantity and, so far as possible, the cost price
to the seller of such articles included in the sale, and shall within said
time notify the creditors of the proposed sale, and the price, terms
and conditions thereof, provided, that if the owner or owners of said
stock of goods shall at any time before the said sale execute a good and
sufficient bond to a trustee therein named, in an amount equal to the
actual cash value of said stock of goods, and conditional that the
seller of said stock of goods will apply the proceeds of said sale, sub
ject to the right of the owner or owners to retain therefrom the per
sonal property exemption or exemptions as are allowed by law, so
far as it will go in payment of debts actually owing by said owner
or owners, then the provisions of this act shall not apply.
I
Fraudulent Trading. That if any person or persons shall trans
act business as a trader or merchant, with the addition of the words
“factor,” “agent,” “and company” or "and Co.,” or shall conduct
such business under any name of style other than his'own, except in
case of corporation, and fail to disclose the names of his principal or
partner by a sign placed conspicuously at the place wherein such
.business is conducted, or if any married woman shall conduct such
business through her husband or any other agent, or if any husband
or agent of any married woman shall conduct such business for her
without displaying the Christian name of such married woman, and
the fact that she is a feme convert, by a sign placed conspicuously
at the place wherein such business is conducted, then all the property,
stock of goods and merchandise and choses in action purchased, used
and contracted in tbe court of such business shall, as to creditors,
be liable for the debts contracted in the course of such business by
the person in charge of same. Any married woman conducting busi
ness as aforesaid without complying with the above shall for all pur
poses be deemed and treated to all debts contracted in the course of
such business as a free-trader.
Frauds, Statute of. No action shall be brought whereby to charge
an executor or administrator upon a special promise to answer damages
out of his own estate or to charge any defendant upon a special promise
to answer the debt, default, or miscarriage, of another person unless the
agreement upon which such action shall be brought or some memorandum
or note thereof shall be in writing and signed by the party charged
therewith, or some other person thereunto by him lawfully authorized.
All contracts for the sale of land, and all leases and contracts for leasing
land for the purposes of digging gold or other minerals, or for mining
generally, of whatever duration, and all other leases and contracts for
leasing lands, exceeding in duration three years from the making thereof,
shall be void unless put into writing and signed by the party to be
charged therewith, or by some perspn by him lawfully authorized thereto.
No acknowledgment or promise shall be received as evidence of a new
or continuing contract, whereby to take the case out of the operation of
the statute or limitations, unless the same be contained in some writing
signed by the party to be charged thereby. But this shall not alter the
effect of any payment of principal or interest.
Garnishee Process. Process may issue upon judgment and in
attachment to hold, and where a third party may owe or nave belonging
to debtor.
certain provisions.
Dower
The wife is entitled to one-third in value of all the land of
her husband lorleits her right of dower. (See Mmmuvawn.)
Holidays. January 1, January 19, February 22, April 12, May 10, May
20, July 4. first Monday in September and a day an pointed by the governor
as a day of thanksgiving, Tuesday after first Monday of November when a
general election is held, and December 25. And whenever any such holiday
shall fall on Sunday, the Monday following shall be the public holiday.
When the day of maturity of a note falls on Sjunday or a holiday, the
note is payable on the next succeeding business day.
Homestead. (See Exemptions.)
At any time within three years after docketing of
Husband and Wife. (See Harried Women.)
Executions. m
jsiue of the last execution, judgments may
be enforced by execution without application to court, by the judgInterest. The legal rate of interest is 6 per cent. Taking, receiv
be enforced Dy exctu
personal representative
ing, or charging a greater rate, either before or after the interest may
ment cred tor or in owe or n.s aeu
*
Socketing or date of
accrue, when knowingly done, shall cause a forfeiture of the entire inter
uUlno a$Tst execution only by leave of court, upon satisfactory
est. The person or corporation by whom it is paid may recover back
issne of last execution mi X
jd Executlon8 issuing from
twice the amount of interest paid in the nature of an action for debt,
proof thatt theJ“dS™ ,
£ immediately after the term at which judg- ■ commenced
within two years after payment. In any action brought to
the superioi- court may’ l88"y^eeQr1e7uriable to the next term of the
recover upon the note or other evidence of debt, the defendant may plead by
“ou” beginn S^ntt Pels than forty days after the issuing thereof.
way of counterclaim twice the amount of interest paid, and also ihe for
Issuing fromi aJustice’s court they are returnable m sixty days.
feiture of the entire interest. No person shall recover any costs who may
endeavor to recover upon a usurious contract..
„ _
Articles of nersonal property not to exceed the value
ofS“and real' estate not to’exceed $1,000 in value, to be selected by
Judgments. Judgments of the superior court are liens upon the
ot $500, aua real estate
,,
sworn appraisers, provided
lands and interests of a debtor within the county from the date of dock
the owner thereo, and toJje valeued ^ homestead is not exempt from
eting
the same for the space of ten years. If three years shall elapse
he be a resident of the State. Jne
chase of the 8ame, nor for
since the date of the last execution the judgment becomes dormant, and
liability to be sold ** contract ma
entitled to the homestead until
execution shall only be issued thereon by leave of the court upon motion,
taxes. The widow and infant cnuoiei. a
e
The statute of
with personal notice to the adverse party, and after satisfactory proof that
the youngest child reaches
jndarnl^nt owing by the owner of a
the judgment or some part thereof remains unsatisfied. Transcripts of
limitations 8hall lJ”tt£ i interest during the existence of such homestead
judgments obtained from a justice of the peace may be docketed in the
homestead or homestead interest, a
g
has been or shall herefter be
superior
court, and from that time the judgment shall be a judgment of
or homestead Interestedher th.otherwise. The allotted
the superior court iu all respects. All judgments rendered at a term of
allowed, assigned, or set,ap
unler
owned and occupied by
the superior court bear date as of the first day of the term, and there is
huOntU8teadt8nrGhv anv one for him, but wnen conveyed bv him in
no priority between them in the county of their rendition. A transcript
JJte homesteader or by any one Jtjt^tion (article ten, section eight), the
of a docketed judgment properly certified by the clerk, may be filed in
the mode authorized by th
attaching prior to the conveyance,
the clerk’s office of any other county, when it becomes a lien upon the
exemption thereof ceases a
tllc~ jll)ine8teader who has condebtor
’s real estate in that county from the date of the docketing in such
The homestead right being
.
anotlier allotted, and as often as
county. Judgments of the supreme court may be docketed in the supe
veyed his allotted homeste ,
j
retroactive effect.
rior court of any county of the State, and when so docketed their lien shall
be the same as judgments of the superior court. Judgments of no court
F1-,“”K K
constitute a lien upon the personal property before levy.
Fxecutions
to allotted.
““ tlml"r
be partitioned separate from the land interests.
Foreign Corporations. (See Corporation.)
v
..
Alienations which may be contrived for fraud, shall be deemed
T rainl.
“ojd and of no effect. Every conveyance, of
and taken to be 'ut
f vo^ be made with the actual intent in fact
any lands or goo> •
1)ath purchased, or shall purchase, or to de-
frautf such as shaVl purchase any rent or profit out of the same, shall be
deemed utterly void.
Limitations. Within ten years: 1. An action upon a judgment or
decree of any court of this State, or of the United States, or of any State
or Territory thereof, from the date of rendition of said judgment or
decree. But no such action shall be brought more than once, nor have
the effect to continue the lien of the original judgment. 2. An action
upon a sealed instrument against the principal thereto. Within seven
years: 1. An action on a judgment rendered by a justice of the
peace, from the date thereof.
2. By any creditor of a deceased
person against his personal or real representative, within seven
♦
1362
BANKING AND COMMERCIAL LAWS—NORTH DAKOTA.
years net next after the qualification of the executor or adminis
trator, and his making the advertisement required by law for cred
itors of the deceased to present their claims, where no personal service
of such notice in writing is made upon the creditor, and the creditor, thus
barred of a recovery against the representative of any principal debtor,
shall also be barred of a recovery against any surety of such debt.
Within six years: 1. An action upon the official bond or any public offi
cer. 2. An action against any executor, administrator, collector, or guar
dian on his official bond, within six years after the auditing of his final
accounts, by the proper officer, and the filing of such audited accounts as
required bylaw. Within three years: 1. An action upon a contract,
obligation, or liability arising out of a contract, express or implied,
except those mentioned in the preceding sections.
Married Women, A married woman may hold property free from
the debts of her husband. But she can make no contract to affect her
real or personal property, except for her necessary personal expenses,
or for the support of her family, or to pay her antenuptial debts, without
the consent in writing of her husband, unless she oe a free trader. She
can not dispose of her real property without her husband’s consent, but
she may devise her real estate without his consent. The liability of a
femme sole for any debt owing or contract made, or for damages incurred
by her before the marriage, shall not be impaired by such marriage.
No man by marriage shall incur any liability for debts owing or con
tracts made, or for wrongs done by his wife before marriage. {See
Deeds, Exemptions, and Free Traders.) Every married woman, upon
the death of her husband intestate, or in casa she shall dissent from
his will, shall be entitled to an estate for her life in one-third in
value of all the lands, tenements, and hereditaments whereof her hus
band was seized and possessed at any time during the coverture.
Mortgages. Mortgages and deeds of trust are required to be regis
tered, and are only valid as agaiust creditors or purchasers for a
valuable consideration from the date of registration, but a mortgage
is valid against the maker without registration. Mortgages of incor
porate companies upon their property or earnings, whether in bonds
or otherwise, hereafter issued, shall not have power to exempt the prop
erty or earnings of such corporations from execution for the satisfac
tion of any judgment obtained in courts of the State against such
corporation, for labor performed nor for costs committed by such
corporation, its agents or employees, whereby any person is killed
or any person or property injured. When there are two or more mort
gagees or trustees the survivor is authorized to execute power of sale
in the mortgage or deed of trnst, and so is the executor or administrator
of a deceased mortgagee. "When the mortgage or deed of trust contains
a power of sale, it may be exercised after the death of the mortgagor.
In case of sale of real estate in deed of trust or mortgage the premises
must be descr'bed in the notice of sale subsequently as they are de
scribed in the deed of trust or mortgage, and the sale may be made
through an agent or attorney for that purpose, appointed orally or
in writing, whether the mortgagee or trustee be present or not. Deeds
of trust, mortgages, and similar sales shall be regulated as to
time of advertisement and costs of the same, by the same
statute which regulates sales under execution.
Negotiable Instruments. {SeeBills of Exchange.)
Powers of Attorney. Powers of attorney authorizing the execution
of deeds or other acts requiring a seal must be under a seal. It should
be recorded along with the deed.
Stay of Execution. Judgment in a justice's court only may be
stayed unon security given, if asked for at the trial, as follows: For any
sum not exceeding twenty-five dollars, ooe month; for any sum above
twenty-five and not exceeding fifty dollars, three months; for any sum
over fifty dollars and not exceeding one hundred dollars, four months;
for any sum above one hundred dollars, • '< months. No stay is allowed
upon a suit upon a former judgment.
Supplementary Proceedings. Upon an affidavit showing: 1. The
return of the execution unsatisfied in whole or in part. 2. The want of
known property liable to execution. 3. The existence of property
belonging to the judgment debtor unaffected by any lien and incapable
of levy. 4. The existence of property, choses in action, and things in
value (belonging to the judgment debtor) unaffected by any lien, and
incapable of levy, an order may be obtained for the examination of the
judgment debtor concerning his property. Supplementary proceeding
may likewise be instituted before the return of the execution upon an
affidavit showing the foregoing facts, and also that the judgment debtor
has property which he unjustly refuses to apply to the satisfaction of the
judgment. Third parties may also be examined. If it appears by affidavit
that they owe the defendant more than §10. Witnesses may be examined.
Property discovered may bs applied to the execution A receiver may be
appointed, and transfers by debtors enjoined.
Taxes. The lien of the State, county, and municipal taxes, levied for
all purposes in each year attaches to all property subject to such taxes on
the 1st day of June annually. All personal property subject to taxation
shall be liable to be seized and sold for taxes. All taxes are due on the first
Monday of September in each year. If the party charged has personal
property of the value equal to the tax charged against him, the sheriff or
tax collector shall seize and sell the same as he is required to sell other
property under execution. If the party charged has not personal property
to be found in the county, of sufficient value, the real estate or the de
linquent shall be levied upon and sold.
Wills. No last will or testament shall be good or sufficient In law to
convey or give an estate, real or personal, unless such last will shall have
been written in the testator’s lifetime, and signed by him. or by some
other person in his presence and by his direction, and subscribed
in his presence by two witnesses at least. No one of them shall be
interested in the devise or bequest of the said estate, except as herein
after provided. Or, unless, such last will and testament be found among
the valuable papers and effects of any deceased person, or shall havebeen
lodged in the hands ot a person for safe keeping, and the same shall be
In the handwriting ol such deceased person, with his name subscribed
thereto, or inserted in some part of such will; and if such handwriting
shall be proved by three credible witnesses, who verily believe such will
and every part thereof is in the handwriting of the person whose will it
appears to be, then such will shall be sufficient to give and convey real
and personal estate. No person shall be capable of disposing of real or
personal estate by will, nor be allowed to qualify as executor of a will
until he shall have attained the age ot twenty-one years. A married
woman owning real or personal property may dispose of the same by
will.
SYNOPSIS OF THE LAWS OF NORTH
DAKOTA
RELATING TO
BANKING AND COMMERCIAL USAGES.
Prepared and Revised by Emerson H. Smith, Attorney at Law, Fargo.
{See Card in Attorneys' List.)
Acknowledgments of deeds or other instruments may be made at
any place within this State before a justice or a clerk of the supreme
court, or a notary public; and within district in this State for which
an officer is appointed or elected before a judge or clerk of a court of
record, a mayor of city, registrar of deeds, a justice of the peace, a
U. S. circuit or district court commissioner, or a county auditor, and
without the State, but within the United States and within the jurisdiction
of the officer, before a justice, judge, or clerk of any court of record of
the United States, or clerk of any court of record of any State or Territory,
a notary public, any other officer of the State or Territory where made
authorized by its laws to take acknowledgments, a commissioner ap
pointed for the purpose by the governor of this State; without the United
States, before a minister, commissioner, or charge d’affaires of the United
States resident and accredited in the country where made, secretary of
legation, a consul, vice-consul, or consular agent of the United States
resident where made, a judge, clerk registrar, or commissioner of a court
of record of the country where made, or a notary public of such country,
or an officer authorized by laws where proof or acknowledgement is taken,
to take such; any deputy of these officers in name of principal as deputy,
or by such deputy as deputy. Certificate must be authenticated by name
and official designation and seal of officer. The form is statutory’, and is
substantially as follows:
State of.......................... I
County of.......................)
On this .... day of.................. in the year......... . before me personally
appeared .... ............... . known to me to be the person., who is (are)
described in, and who executed the within instrument, and acknowledged
to me that he (er they) executed the same.
Acknowledgment of corporation must be substantially in^the following
form:
State of.............................I
County of.........................(ts"
On this .... day of................. . in the year........... before me (here insert
the name and quality of the officer), personally appeared..........................
known to me (or proved to me on the oath or.........................,) to be the
president (or secretary) of the corporation that is described in and that
executed the within instrument, and acknowledged to me that such
corporation executed the same.
Acknowledgment of an attorney in fact must be substantially in the
following form:
State of........ ..................I
County of........................)
On this .... day of............. , in the year........... before mej(here insert
the name and quality of the officer), personally appeared........... ............. ,
known to me (or proved to me on the oath of.........................,) to be the
person who is de-cribed in and whose name is subscribed to the within
instrument as the 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.
Actions. Actions in courts of record are commenced by service of
summons on the defendant, requiring him to answer within thirty days,
and if no appearance is made within that time, the plaintiff may take
judgment by default upon the expiration of the thirty days. When prop
erty of defendant is attached, and in actions affecting real property, and
for divorced, summons may be served by publication when defendant
is a non-reside